Case T-13/07: Action brought on 12 January 2007 — Cemex UK Cement v Commission
Date: 2007-03-10
Institutions: Court of First Instance
Subjects: European Commission, United Kingdom, action for annulment (EU), cement, greenhouse gas, industrial pollution, tradeable emission permit

10.3.2007

EN

Official Journal of the European Union

C 56/37

Action brought on 16 January 2007 — Polimeri Europa v
Commission

(Case T-12/07)

(2007/C 56/69)

Language of the case: Italian

of Article 7 of Regulation No 1/2003 (2). The decision is
therefore vitiated for infringement of the latter provision,
read
in conjunction with Article 7 of Regulation
No 773/2004.

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

Parties

Applicant: Polimeri Europa SpA (Brindisi, Italy) (represented by:
M. Siragusa, F.M. Moretti and L. Nascimbene, avvocati)

Defendant: Commission of the European Communities

Action brought on 12 January 2007 — Cemex UK Cement
v Commission

Form of order sought

The applicant claims that the Court should:

— annul the decision in its entirety, as well as all acts insepar-
ably connected therewith and,
in consequence, direct the
Commission to take steps to recover the copy, forwarded to
Michelin, of the non-confidential version of the new state-
ment of objections;

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

Parties

(Case T-13/07)

(2007/C 56/70)

Language of the case: English

Pleas in law and main arguments

decision (COMP/F2/D (2006) 1095)

By the present application, the applicant contests the Commis-
adopted on
sion's
6 November 2006 in the proceeding initiated pursuant
to Article 81 EC (Case COMP/F38.638 BR/ESBR), by which the
Commission forwarded to Manufacture Française des Pneuma-
tiques Michelin (MFPM) a copy of the non-confidential version
of the statement of objections adopted on 6 April 2006. MFPM
had previously been admitted to the administrative procedure as
an interested third party, since it had been asked to forward
possible observations.

In support of the forms of order sought, the applicant submits:

— infringement of its rights of defence. On that point, the
applicant maintains that ever since the adoption of the deci-
sion, the Commission has concealed the true purpose and
nature of Michelin's participation in the procedure,
thus
limiting the possibilities of defence open to the applicant
and negatively affecting the applicant's position in the case;

— the decision is unlawful, regard being had to the legal basis
cited, in particular Article 6 of Regulation No 773/2004 (1).
The applicant maintains in this connection that Michelin
cannot be regarded as a complainant, because the Form C
submitted by Michelin is not an act capable of triggering the
procedure launched following a complaint for the purposes

Applicant: Cemex UK Cement Ltd (Thorpe, United Kingdom),
(represented by: D. Wyatt QC, S. Taylor, Solicitor, S. Tromans
and C. Thomann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— to annul the Commission decision of 29 November 2006,
concerning the national allocation plan for the allocation of
greenhouse gas emission allowances notified by the United
Kingdom in accordance with Directive 2003/87/EC (1);
insofar as

— the latter decision failed to object to/approved an alloca-
tion of allowances to the applicant in respect of
its
Rugby plant which was inadequate and unlawful to the
extent of 343 838 tonnes;

— the latter decision failed to object to/approved an alloca-
tion to cement manufacturers in competition with the
applicant which was excessive and unlawful to the extent
of the 343 838 tonnes comprising as it did the under-
allocation to the applicant;

C 56/38

EN

Official Journal of the European Union

10.3.2007

— the latter decision failed to object to/approved the alloca-
tion methodology laid down in paragraphs 3(7) and 3(8)
of
the UK national allocation plan, and paragraphs
28 and 30 of Appendix C to the UK national allocation
plan insofar as the latter methodology treats a cement
plant as commencing operations in a year in which the
plant was undergoing commissioning, and treats this
year as the first year of operation of such a plant, and
calculates emission allowances on the basis of average
emissions for the baseline period 2000-2003, excluding
the actual
the lowest year's emissions, regardless of
length of the commissioning period of the plant in ques-
tion;

— to order the Commission to bear the applicant's costs.

Pleas in law and main arguments

The application at stake is made pursuant to Article 230 EC for
the annulment,
in relevant part, of Commission decision of
29 November 2006 concerning the national allocation plan for
the allocation of greenhouse gas emission allowances notified
by
the United Kingdom in accordance with Directive
2003/87/EC of the European Parliament and of the Council.

The grounds for annulment advanced by the applicant are
mainly that
to/
approved an under-allocation of allowances to the applicant's
Rugby plant, which, according to the applicant:

the Commission allegedly failed to object

— unlawfully discriminates against that plant by failing to take
sufficient account of the latter plant's period of commis-
sioning, and by basing the allocation to the plant on a
period of emissions which the United Kingdom authorities
knew to be unrepresentative;

— restricts the right of establishment of the applicant's parent
company Cemex Espana, since it allegedly hinders and
makes less attractive the exercise by the latter of a funda-
mental
freedom, and cannot be justified by imperative
requirements in the general interest; and

— along with the resulting over-allocation to the applicant's
competitors, amounts to state aid contrary to Article 87 and
88 EC.

(1) Directive 2003/87/EC of

the
Council concerning the establishment of a scheme for greenhouse
gas emission allowance trading in the Community and amending
Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).

the European Parliament and of

Action brought on 1 February 2007 — US Steel Košice v
Commission

(Case T-22/07)

(2007/C 56/71)

Language of the case: English

Parties

Applicant: US Steel Košice s.r.o. (Košice, Slovak Republic) (repre-
sented by: E. Vermulst, S. Van Cutsem, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission's Decision D/59829 of 22 November
2006 concerning the application of the sales cap to Bulgaria
and Romania; and

— order the Commission to pay the applicants costs.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of
Commission Decision D/59829 of 22 November 2006
extending the application of the sales cap provided in Title 4,
point 2(a)(i) of Annex XIV to the Act of Accession so as to
include Bulgaria and Romania. The contested decision deter-
mined that the sales cap for 2007 and subsequent years had to
be recalculated taking into account 2001 sales data for Romania
it required the Slovak Republic to
and Bulgaria. To this end,
provide the applicant's 2001 sales data for these countries.

The applicant benefits from aid in the form of tax exemption,
on the basis of transitional measures in the field of state aid that
the Slovak Republic is permitted to apply to one beneficiary in
the steel sector.

In support of its claims, the applicant argues that the contested
decision is illegal insofar as it requires the applicant to modify
its sales policy and cap its sales of certain steel products to
customers in Bulgaria and Romania in order to benefit from aid
authorized under Community law.

The applicant submits that the contested decision imposes an
additional condition that did not exist when the Act of Acces-
sion entered into force and, thus, contradicts the wording, the
spirit and the general
the Act of Accession.
scheme of
According to the applicant the term ‘enlarged EU’ referred to in
Annex XIV, Title 4, point 2(a)(i) does not include Romania and
Bulgaria.

In addition, the applicant claims that the contested decision
must be annulled since the Commission acted where it had no
competence, violated the applicant's legitimate expectations and
failed to respect the principle of proportionality.