Case T-28/07: Action brought on 7 February 2007 — Fels-Werke GmbH and Others v Commission of the European Communities
Date: 2007-03-24
Institutions: Court of First Instance
Subjects: EU environmental policy, European Commission, Germany, action for annulment (EU), greenhouse gas, reduction of gas emissions, tradeable emission permit

C 69/26

EN

Official Journal of the European Union

24.3.2007

Thirdly, the applicant contends that the contested decision is
unlawful because, instead of carrying out its limited functions
under Article 9(3) of Directive 2003/87/EC, the Commission
carried out an entirely independent calculation of the appro-
priate total emissions in Slovakia and imposed this on the
Slovak Republic. Thereby the Commission usurped the compe-
tence of the Member States under Articles 9 and 11 of Directive
2003/87/EC.

Fourthly, the applicant submits that the contested decision is
unlawful in that it was based on a rigid mathematical calcula-
tion which was imposed without public consultation and which
ignored known factors influencing emissions specific to Slovakia
in the period 2008-2012. The applicant finds that this approach
violated Article 9(1) and 11(2) of Directive 2003/87/EC,
criteria (1), (2) and (3) of Annex III to the said directive as well
as
legitimate expectations. The applicant
contends that insofar as the Commission possessed any margin
of appreciation, the Commission committed a manifest error in
that appreciation.

the principle of

the applicant claims that

Finally,
the contested decision is
vitiated by a misuse of powers as it was motivated by a desire to
achieve a scarcity of allowances as such in order to drive the
prices of allowances upwards.

(1) Directive 2003/87/EC of

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

the European Parliament and of

(2) Act concerning the conditions of accession of the Czech Republic,
the Republic of Estonia, the Republic of Cyprus, the Republic of
Latvia,
the
Republic of Malta, the Republic of Poland, the Republic of Slovenia
and the Slovak Republic and the adjustments to the Treaties on
which the European Union is founded (OJ L 236, 2003, p. 33).

the Republic of Lithuania,

the Republic of Hungary,

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1.2 of

the Commission's Decision of
29 November 2006 on the national plan for the allocation
of greenhouse gas emission allowances notified by Germany
pursuant to Directive 2003/87/EEC of the European Parlia-
ment and of the Council (document number unpublished),
insofar as it declares the allocation guarantees in respect of
the first action period described in Chapter 6.2 of Germany's
national allocation plan under the headings ‘Additional new
installations under Paragraph 11 of
the ZuG 2007’ and
‘Allocations under Paragraph 8 of the ZuG 2007’ to be
incompatible with Directive 2003/87/EC;

— annul Article 2.2 of that decision insofar as it issues to the
Federal Republic of Germany instructions for the application
of the allocation guarantees in respect of the first action
period described in Chapter 6.2 of Germany's national allo-
cation plan under the headings ‘Additional new installations
under Paragraph 11 of
the ZuG 2007’ and ‘Allocations
under Paragraph 8 of the ZuG 2007’ and in so doing also
requires the application of the same performance factor as
for other comparable existing installations;

— order the Commission to pay the costs.

Pleas in law and main arguments

Action brought on 7 February 2007 — Fels-Werke GmbH
and Others v Commission of the European Communities

(Case T-28/07)

(2007/C 69/55)

Language of the case: German

Parties

Applicants: Fels-Werke GmbH (Goslar, Germany), Saint-Gobain
Glass Deutschland GmbH (Aachen Germany) and Spenner
Zement GmbH & Co KG (Erwitte, Germany) (represented by:
H. Posser and S. Altenschmidt, lawyers)

challenge

applicants

the Commission's decision of
The
29 November 2006 concerning the national plan for the alloca-
tion of greenhouse gas emission allowances which Germany
notified in accordance with Directive 2003/87/EC of the Euro-
pean Parliament and of
In that decision the
Commission objects to certain aspects of the national allocation
plan for Germany on account of incompatibility with Annex III
to Directive 2003/87/EC (1).

the Council.

The applicants, operators of installations subject to compulsory
emissions
claim to be directly and individually
concerned by the contested decision.

trading,

In support of their action that they put forward four pleas:

First of all, they submit that on 29 November 2006 the defen-
dant was no longer entitled to reject the German national allo-
cation plan, as the mandatory time-limit
for doing so in
Article 9(3) of Directive 2003/87/EC had already expired.

Moreover, on the merits, the applicants complain of an incorrect
application of Article 9(3) in conjunction with the criteria of
Annex III to Directive 2003/87/EC. In their view, the allocation
guarantees criticised by the Commission for new installations
are not State aid within the meaning of Article 87(1) EC. No
unjustified preference was given to the installations in question.

24.3.2007

EN

Official Journal of the European Union

C 69/27

In addition the contested decision contains an inadequate state-
ment of reasons and therefore infringes Article 253 EC.

Finally, the contested decision infringes the Community prin-
ciple of the protection of legitimate expectations.

— rule that contrary to the objective that it set, Council Direc-
tive 2006/112/EC of 28 November 2006 on the common
system of value added tax, by repealing First Directive
67/227/EEC, gives, with the exception of Article 2 defining
the characteristics of VAT, an incomplete and incorrect
image of the existing VAT legislation and jeopardises the
harmonisation of laws on turnover tax;

(1) Directive 2003/87/EC of

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

the European Parliament and of

Action brought on 9 February 2007 — Lactalis Gestion
Lait and Lactalis Investissements v Council

(Case T-29/07)

(2007/C 69/56)

Language of the case: French

Parties

Applicants: Lactalis Gestion Lait and Lactalis Investissements
(Laval, France) (represented by: A. Philippart, lawyer)

Defendant: Council of the European Union

Form of order sought

— rule that the first subparagraph of Article 1 of Council
Directive 67/227/EEC, read in the light of the fourth recital
in the preamble, requires the Member States to abolish and
replace cumulative multi-stage turnover taxes which distort
competition and hinder trade between Member States;

— rule

that

subparagraph 3 of Article 1 of Directive
in the
67/227/EEC, read in the light of the eighth recital
preamble, prohibits Member States (old or new) from main-
taining or introducing measure providing for flat-rate equali-
sation of turnover taxes on importation or exportation in
trade between Member States;

— rule that Article 1 of First Directive 67/227/EEC replaces
cumulative multi-stage taxes with the common system of
value added tax and that henceforward the maintenance or
introduction of cumulative multi-stage taxes which distort
competition and hinder trade must be prohibited;

— rule that by removing all references to the principle of prin-
ciple of the prohibition on cumulative multi-stage taxes and
thereby enabling the maintenance and reintroduction of
turnover taxes of such a kind as to distort competition and
hinder trade between Member States, the Council infringes
the objectives set by Articles 3 and 93 EC and directly and
individually affects the applicants' interests;

— annul Article 411/1 of Directive 2006/112/EC in so far as it
repeals recitals 4 and 8 and subparagraphs 1 and 3 of
Article 1 of Council Directive 67/227/EEC and clearly
infringes Articles 3 and 93 EC;

— order the Council to reimburse the irrecoverable expenses

incurred in these proceedings

Pleas in law and main arguments

By this action, the applicants seek annulment of Article 411/1
of Council Directive 2006/112/EC of 28 November 2006 on
the common system of value added tax (1) in so far as it repeals
subparagraphs 1 and 3 of Article 1 of First Council Directive
67/227/EEC of 11 April 1967 on the harmonisation of legisla-
tion of Member States concerning turnover taxes (2) providing
for the abolition and prohibiting the maintenance or introduc-
tion of cumulative multi-stage taxes.

The applicants claim that by adopting such a directive, the
Council infringes the objectives of the Treaty set out in Articles 3
and 93 EC which provide for the harmonisation of laws on
turnover taxes. The applicants also submit that the repeal of
Directive 67/227/EEC by Directive 2006/112/EC calls into ques-
tion the principle of the prohibition on cumulative multi-stage
taxes which the applicants argue are, by their very nature, of
such a kind as to distort the conditions of competition and
hinder trade between Member States.

(1) OJ L 347, 2006, p. 1.
(2) OJ L 71, 2006, p. 1301.