Case T-193/07: Action brought on 5 June 2007 — Gόrażdże Cement v Commission
Date: 2007-07-21
Institutions: Court of First Instance
Subjects: European Commission, Poland, action for annulment (EU), greenhouse gas, reduction of gas emissions, tradeable emission permit

C 170/36

EN

Official Journal of the European Union

21.7.2007

Action brought on 4 June 2007 — Comité de défense de la
viticulture charentaise v Commission

Action brought on 5 June 2007 — Gόrażdże Cement v
Commission

(Case T-192/07)

(2007/C 170/69)

(Case T-193/07)

(2007/C 170/70)

Language of the case: French

Language of the case: English

Parties

Parties

Applicant: Comité de défense de la viticulture charentaise
(Committee for the protection of wine-growing in the Charente)
(Sainte-Sévère, France) (represented by: C.-E. Gudin, lawyer)

Defendant: Commission of the European Communities

Applicant: Gόrażdże Cement S.A. (Chorula, Poland) (represented
by: R. Forbes, Solicitor and P. Muñiz, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission decision No SG-Greffe (2007) D-20276
of 3 April 2007 addressed to the applicant's representative
and thus declare void the measure contested in this action;

— declare null and void in its entirety the Commission's deci-

sion by which it dismisses the applicant's complaint.

Pleas in law and main arguments

applicant's

concerning

By decision of 3 April 2007 the Commission decided not to
alleged
complaint
allow the
infringement of Article 81 EC by the Institut National des
Appellations d'Origine (INAO)
(National Institute of Designa-
tions of Origin) in France and the alleged infringement of Arti-
cles 81 EC and 82 EC by the major firms trading in cognac
spirit (Case COMP/38863/B2-MODEF). By this action, the appli-
cant is seeking the annulment of that decision.

the

In support of its action, the applicant puts forward three pleas.

The first plea relates to the alleged lack of competence of the
Commission member who was the signatory to the contested
measure, when he signed it ‘on behalf of the Commission’.

Second, the applicant submits that the decision did not contain
a sufficient statement of reasons in so far as the Commission
did not respond in the letter rejecting the complaint to all the
information submitted by the applicant.

By its third plea, the applicant claims that the Commission did
not give sufficiently serious consideration to the complaint.

Form of order sought

The applicant claims the Court should:

— annul the contested decision;

— order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant submits five grounds on the basis of which the
Commission decision of 26 March 2007 rejecting the national
allocation plan (hereinafter ‘the NAP’)
for the allocation of
greenhouse gas emission allowances notified by Poland in
accordance with directive 2003/87/EC of the European Parlia-
ment and Council (1) (hereinafter ‘the Directive’) should be inva-
lidated:

a) The applicant claims that the contested decision infringes
Article 9(3) of the Directive since a negative decision could
only have been taken within three months of the NAP notifi-
cation. The applicant further claims that it had a legitimate
expectation that any rejection decision would have been
adopted within three months, and that the NAP should be
considered as having been accepted at the expiry of this
deadline.

b) The applicant submits that the contested decision is contrary
to Articles 9(3) and 11(2) of the Directive in that it restricts
the type of amendments that can be proposed by the
Member State concerned and, in particular, since it allegedly
prevents amendments to the total amount of allowances.
However, according to the applicant, the Directive does not
limit the freedom of Member States to propose amendments.

c) According to the applicant the contested decision usurps the
Member State's competence as it leads to the Commission
effectively unilaterally deciding on the final content of the
NAP. This infringes the distribution of competences in Arti-
cles 9 and 11 of the Directive, as well as Article 10 EC on
the principle of loyal cooperation.

21.7.2007

EN

Official Journal of the European Union

C 170/37

d) Moreover, the applicant contends that the contested decision
has incorrectly applied criteria 2 and 3 in Annex III to the
Directive by not trying on the most representative emission
figures which led to an error of assessment of the facts.

e) Finally, the applicant claims that the contested decision has
infringed Article 30(2)(i) and Criterion 1 in Annex III of the
Directive ignoring the special situation of Poland as a new
Member State and imposing stricter obligations than those
required under the Kyoto Protocol.

(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 2003 L 275, p. 32).

the European Parliament and of

Pleas in law and main arguments

the Council (1),

The applicant seeks the annulment of Commission Decision
C(2007) 1295 final of 26 March 2007 concerning the national
allocation plan for greenhouse gas emission allowances notified
by Poland in accordance with Directive 2003/87/EC of
the
European Parliament and of
in which the
Commission decided that certain aspects of the Polish National
Allocation Plan for CO2 Emission Allowances for 2008-2012,
notified to the Commission on 30 June 2006, were not compa-
tible with Articles 9(1) and (3), 10 and 13(2) of and the criteria
set out
to Directive 2003/87/EC. The
decision in question reduces the carbon dioxide emission limit
in 2008-2012 by 26.7 % compared to the limit proposed by
Poland in the national allocation plan for emission allowances
notified to the Commission.

in Annex

III

Action brought on 5 June 2007 — Lafarge Cement v
Commission

(Case T-195/07)

(2007/C 170/71)

Language of the case: Polish

In support of its application, the applicant submits that the
contested decision was adopted after the expiry of the three-
month period for its adoption defined in Article 9(3) of Direc-
tive 2003/87/EC. As a result, according to the applicant, on
26 March 2007 the Commission was not entitled to adopt the
contested decision or at
least breached essential procedural
requirements.

The applicant criticises the Commission, secondly, in that the
contested decision infringes criteria 1 and 2 in Annex III to
Directive 2003/87/EC, unjustifiably reducing the allocation of
allowances made by Poland to a level markedly lower than that
first notified, which had been consistent with the obligations
assumed by Poland on the basis of the Kyoto Protocol.

Parties

Applicant: Lafarge Cement SA (represented by: P.K. Rosiak, legal
adviser, and F. Puel, lawyer)

Defendant: Commission of the European Communities

Form of order sought

by

that,

further

adopting

applicant

The
the
submits
contested decision, the Commission infringed the provisions of
in conjunction with Article 11(2) of Directive
Article 9(3)
2003/87/EC and the principle of
legitimate expectations and
the principle of cooperation, in so far as, instead of exercising
the
limited powers defined in Article 9(3) of Directive
2003/87/EC, without taking into account the methodologies
contained in the National Allocation Plan II, it applied in the
contested decision its own method of determining the average
annual maximum number of allowances allocated to Poland and
imposed it on Poland, usurping powers which the directive
confers on the Member State. According to the applicant, the
Commission infringed the principle of cooperation between the
institutions of the Community and of the Member States by not
informing Poland of the application of its own economic model
thereby depriving
before adopting the contested decision,
Poland and the interested undertakings of
the possibility of
expressing an opinion on the subject of its appropriateness and
possibly calling into question the data and bases underlying the
Commission's conclusions.

— annul

the Commission's decision of 26 March 2007
concerning the national allocation plan for greenhouse gas
emission allowances notified by Poland in accordance with
Directive 2003/87/EC of the European Parliament and of
the Council;

— order the Commission to pay the costs.

In the fourth place, the applicant submits that the Commission
infringed criterion 3 in Annex III to Directive 2003/87/EC by
making use in the contested decision of out-of-date data
concerning the forecast growth of the GNP, using too general
data for calculating the CO2 emission index, and arbitrarily redu-
cing the annual degree of CO2 emissions by an additional 2.5 %.