Case T-371/05: Action brought on  28 September 2005  — AIETC — Associazione Italiana Tecnico Economica del Cemento and Others v Commission
Date: 2005-11-26
Institutions: Court of First Instance
Subjects: European Commission, European Commissioner, Italy, State aid, action for annulment (EU), cement, powers of the institutions (EU), tradeable emission permit

C 296/36

EN

Official Journal of the European Union

26.11.2005

The Spanish authorities take the view that:

— the loss of income is connected not to grubbing up, but to

the very act of planting; and

— the Commission's argument that VAT cannot be regarded
as an intervention intended to stabilise the markets, since it
cannot be financed by the Guarantee Section of
the
EAGGF, has no legal basis.

the new entrants have not used up the allowances specifi-
cally reserved for them, is incompatible with criterion (10)
of Annex III to Directive 2003/87/EC; and (iii) that part of
the Decision which calls upon the Italian state to amend
the NAP so that existing installations which are subject to
an update of their permits are not allowed to draw allow-
ances from the new entrants reserve for the part of the
modified installation which already existed before the
permit update (Article 2(b) of the Decision).

(1) OJ L 179 of 14.7.1999, p. 1.

— order the Commission to pay the costs of the proceedings.

Action brought on 28 September 2005 — AIETC — Asso-
ciazione Italiana Tecnico Economica del Cemento and
Others v Commission

(Case T-371/05)

(2005/C 296/73)

Language of the case: Italian

Parties

Applicant(s): AITEC — Associazione Italiana Tecnico Economica
(Casale
del Cemento (Rome,
Monferrato,
Italy)
(represented by: Massimo Merla, Claudio Tesauro, lawyers)

Italy), BUZZI UNICEM S.P.A.
ITALCEMENTI GROUP (Bergamo,

Italy),

Defendant(s): Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

— insofar as the Commission is unable to demonstrate that
the mandate given to Commissioner Dimas authorised him
to be a signatory to measures adopted concerning competi-
tion policy and, in particular, state aid, make a declaration
that the Decision is null and of no effect;

— annul: (i) that part of the Decision in which, by stating that
no objections are made to the national allocation plan
(‘NAP’) (Article 2 of the Decision) and thereby approving
the distribution of allowances among the sectors of industry
set out in the plan, it sanctioned the discrimination inherent
in that distribution which favoured undertakings in some
sectors to the disadvantage of other undertakings; (ii) that
part of the Decision which states that the intended authori-
to an
sation of existing installations which are subject
update of their permits to draw allowances from the new
entrants reserve for the part of the modified installation
which already existed before the permit update, even where

Pleas in law and main arguments

The subject of this action is the Decision of 25 May 2005 (1) in
which the Commission gave its opinion on the compatibility of
the national allocation plan for greenhouse gas emission allow-
ances notified to it by Italy (‘NAP’) with the criteria listed in
Annex III to Directive 2003/87 of the European Parliament and
of the Council of 5 June 2002 (2).

First, the applicants seek to ascertain whether the Commis-
sioner who was signatory to the contested measure is compe-
tent to adopt the Decision. In particular, they call upon the
Instance to establish whether Commissioner
Court of First
Dimas has competence in relation to measures adopted
concerning competition policy and, in particular, state aid, and
to make a declaration, should there be sufficient grounds, that
the contested measure is null and of no effect.

Secondly, the applicants contend that by examining the NAP, a
measure that is liable to incorporate elements of state aid,
without complying with the procedural provisions in Article
88 (2) and (3) EC, the Commission infringed that provision.

the applicants submit

Thirdly,
that when the Commission
became aware that there were potential state aid aspects to the
NAP, it infringed Article 87 EC, criterion (5) of Annex III to
Directive 2003/87 EC and the principle of non-discrimination
in that, by approving the distribution of allowances set out in
the NAP, it gave its approval to the discrimination inherent in
that distribution, which was to the detriment of cement produ-
cers.

The applicants submit fourthly that the Commission misapplied
criterion (10) of Annex III to Directive 2003/87 EC in stating
that ‘Italy's intended authorisation of existing installations which are
subject to an update of their permits to draw allowances from the new
entrants reserve for the part of the modified installation which already
existed before the permit update’ was contrary to that criterion.
The Commission thereby infringed criterion (5) of Annex III to
Directive 2003/87 EC and the principle of non-discrimination
in that, by failing to take account of the specific nature of the
sectors of industry affected by the implementation of the Direc-
tive as far as their capacity to increase production was
concerned, it again placed cement producers at a disadvantage
compared with other producers.

26.11.2005

EN

Official Journal of the European Union

C 296/37

Lastly, the applicants claim that by approving the NAP notwith-
standing the facts that it does not make express provision for
undertakings to make appropriate preparations for the transfer
of allowances or pooling of installations, that it provides for
reference periods for the transfer of residual allowances other
than a five-year period and that it imposes unjustifiable restric-
tions on the pooling of installations and does not make provi-
sion for the surrender of cancelled emission allowances, the
Commission infringed Articles 11, 12, 13 and 28 of Directive
2003/87 EC.

(1) Commission Decision of 25 May 2005 on the national allocation
plan for the allocation of greenhouse gas emission allowances noti-
fied by Italy in accordance with Directive 2003/87 of the European
Parliament and Council [C(2005)1527 fin, OJ C 226 of 15.09.2005,
p. 2].

(2) Directive 2003/87/EC of

the European Parliament and of

the
Council of 13 October 2003 establishing a scheme for greenhouse
gas
trading within the Community and
amending Council Directive 96/61/EC (OJ L 275 of 25 October
2005, p. 32).

emission allowance

Action brought on 26 September 2005 — the Italian
Republic v the Commission

(Case T-373/05)

(2005/C 296/74)

Language of the case: Italian

tion of which was given on that date, insofar as it makes an
overall
tobacco aid scheme
amounting to 5 % of the expenditure declared in 2001 and
2002 for the marketing year 2000.

financial adjustment

to the

In support of its action the Italian government argues:

1) that Decision C(2005) 2756 of 20 July 2005 contains an
inadequate statement of reasons in relation to Article 253
of the Treaty and that the Commission has misused its
powers by distorting the facts in that the contested decision
makes an overall adjustment to the aid granted for tobacco
production in the marketing year 2000 without providing
an appropriately detailed statement of reasons as to the
rules allegedly infringed or indeed any factual grounds that
could justify the decision;

2) that Article 7(4) of Regulation (EC) No 1258/1999 (1) was
infringed and misapplied in that the decision to make an
overall adjustment to the aid granted for tobacco production
in the marketing year 2000 lacks the detailed statement of
grounds which is a necessary requirement of that provision.

(1) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
financing of the common agricultural policy (OJ L 160, 26/6/1999,
p. 103).

Action brought on 7 October 2005 — Azienda Agricola le
Canne v Commission

Parties

Applicant(s): the Italian Republic (represented by: Paolo Gentili,
Avvocato dello Stato)

Defendant(s): the Commission of the European Communities

Parties

(Case T-375/05)

(2005/C 296/75)

Language of the case: Italian

Form of order sought

The applicant claims that the Court should:

Italy)
Applicant(s): Azienda Agricola le Canne (Porto Viro,
(represented by: Giuseppe Carraio and Francesco Mazzonetto,
lawyers)

annul Commission decision C(2005)2756 of 20 July 2005
insofar as it imposes an overall adjustment on the tobacco aid
scheme operated by the Italian Republic amounting to 5 % of
the expenditure declared in 2001 and 2002 for the 2000
harvest and order the Commission to pay the costs of the
proceedings.

Defendant(s): Commission

Form of order sought

Pleas in law and main arguments

The Italian government has brought an action before the Court
of First
Instance of the European Communities challenging
Commission Decision C(2005) 2756 of 20 July 2005, notifica-

The applicant(s) claim(s) that the Court should:

— declare the contested Commission Decision C(2005)2939
of 26 July 2005 null and void insofar as it reduces the aid
granted to Azienda Agricola Le Canne s.r.l. by Decision
C(90)1923/99 of 30 October 1990 pursuant to Regulation
(EEC) No 4028/86;