Case T-208/07: Action brought on 5 June 2007 — BOT Elektrownia Bełchatów and Others v Commission
Date: 2007-08-04
Institutions: Court of First Instance
Subjects: EU environmental policy, European Commission, Poland, action for annulment (EU), greenhouse gas, pollution control measures, reduction of gas emissions, tradeable emission permit

4.8.2007

EN

Official Journal of the European Union

C 183/37

— annul Articles 1, 4, 5 and 6 of the contested decision
insofar as they pertain to Eurallumina and order that the
present
exemption authorised by Council Decision
2001/224/EEC is lawful until 31 December 2006 and
that any sums foregone by the Italian State should not
be considered as unlawful State aid, or at least not be
recovered; or

— order that a maximum of 3 EUR per tonne should be

recovered.

— In the alternative, modify Articles 5 and 6 of

the
contested decision insofar as they pertain to Eurallumina
to the effect that pursuant to the present exemption
until 31 December 2006, any sums foregone by the
Italian State should not be recovered; and

presumption of validity, lex specialis, effet utile and good adminis-
tration by finding that the application of the exemption from
excise duty on mineral oils used for alumina production in,
among others, Sardinia was a State aid recoverable from
1 January 2004, as the applicant had the right to expect that
the exemption approved by Council Decision 2001/224/EC
until 31 December 2006 was a legally valid Community act and
that any measure taken by the Italian authorities and the appli-
cant to implement and rely on this decision would not lead to
an unlawful result.

(1) Council Directive 2003/96/EC of 27 October 2003 restructuring the
Community framework for the taxation of energy products and elec-
tricity (OJ 2003 L 283, p. 51).

(2) Council Decision 2001/224/EC of 12 March 2001 concerning
reduced rates of excise duty and exemptions from such duty on
certain mineral oils when used for specific purposes (OJ 2001 L 84,
p. 23).

(3) Community guidelines on State aid for environmental protection

— order that the Commission pay all of the costs of the

(OJ 2001 C 37, p. 3), in particular paragraph 51(1)(a) and (b).

proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2007) 286 final of 7 February 2007 by which the Commis-
sion found that the exemptions from excise duty granted by
France, Ireland and Italy in respect of heavy fuel oils used in the
production of alumina as from 1 January 2004 constituted
State aid within the meaning of Article 87(1) EC and that a
certain part of this aid was incompatible with the common
market.

In support of its application, the applicant submits that the
continuation of the exemption from excise duty on mineral oils
used as fuel for alumina production in Sardinia also after the
entry into force of Council Directive 2003/96/EC (1) on
1 January 2004 does not constitute State aid, as Article 18(1) of
the directive and Annex II hereto expressly state that
this
exemption, which was
by Council Decision
approved
2001/224/EC (2), continues until 31 December 2006. According
to the applicant, Directive 2003/96/EC thus expressly revalidates
the specific exemption from excise duty granted to the applicant
until 31 December 2006.

Parties

Action brought on 5 June 2007 — BOT Elektrownia
Bełchatów and Others v Commission

(Case T-208/07)

(2007/C 183/72)

Language of the case: English

Furthermore, the applicant alleges that even though the exemp-
tion approved by Council Decision 2001/224/EC is a selective
measure at first sight, it is justified by the ‘overall nature and
logic’ of both the Community rules and the Italian tax system,
and thus is not State aid.

the exemption
Moreover, the applicant submits that even if
approved by Council Decision 2001/224/EC is to be considered
State aid, it qualifies for an exemption from the prohibition of
Article 87(1) EC under the rules for environmental aid (3).

Finally, the applicant contends that the Commission breached
certainty,
the principles of

expectations,

legitimate

legal

Applicants: BOT Elektrownia Bełchatów S.A. (Rogowiec, Poland),
BOT Elektrownia Turów S.A.
(Bogatynia, Poland), BOT Elek-
trownia Opole S.A. (Brzezie, Poland), Elektrownia ‘Kozienice’ S.
A. (Świerże Górne, Poland), Elektrownia Połaniec S.A. — Grupa
Electrabel Polska (Połaniec, Poland), Elektrownia ‘Rybnik’ S.A.
(Rybnik, Poland), Elektrownia Skawina S.A. (Skawina, Poland),
Elektrownia ‘Stalowa Wola’ S.A. (Stalowa Wola, Poland), Połud-
niowy Koncern Energetyczny S.A.
(Katowice, Poland), Zespół
Elektrowni Dolna Odra S.A. (Nowe Czarnowo, Poland), Zespół
Elektrowni Ostrołęka S.A. (Ostrołęka, Poland) and Zespół Elek-
trowni Pątnów-Adamów-Konin S.A. (Konin, Poland) (represented
by: B. Krużewski, M. Ciemiński, J. Młot-Schönthaler, N. Dodoo
and S. Boullart, lawyers)

Defendant: Commission of the European Communities

C 183/38

EN

Official Journal of the European Union

4.8.2007

Form of order sought

— Annul the decision;

— order the Commission to bear the costs.

Action brought on 12 June 2007 — Gaedertz v OHIM —
Living Byte Software (GlobalRemote)

(Case T-209/07)

(2007/C 183/73)

Language in which the application was lodged: German

Pleas in law and main arguments

Parties

The applicants seek the annulment of the Commission's deci-
sion of 26 March 2007 concerning the national allocation plan
for the allocation of greenhouse gas emission allowances for the
period 2008-2012 notified by Poland in accordance with Direc-
tive 2003/87/EC (1).

Applicant:
Germany) (represented by: E. M. Gerstenberg, Rechtsanwalt)

Johann-Christoph Gaedertz (Frankfurt am Main,

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Living Byte Software GmbH

In support of their application the applicants allege that the
Commission erred by adopting a decision substantially reducing,
inter alia, the total quantity of CO2 emission allowances that
installations covered by Directive 2003/87/EC can emit.

Form of order sought

in this regard that

The applicants submit
the Commission
breached essential procedural requirements laid down in Direc-
tive 2003/87/EC in that it i) unlawfully adopted the contested
decision after the expiry of the three-month period laid down in
Article 9(3) of the directive, and ii) unlawfully restricted the
applicants' right to be consulted prior to Poland's adoption of a
definitive national allocation plan for greenhouse gas emission
allowances for the period 2008-2012.

The applicants furthermore claim that the Commission misused
the powers conferred upon it under Directive 2003/87/EC in
that it i) adopted too low a GDP growth rate for Poland and too
stringent an emission reduction ratio, which resulted in the allo-
cation of an underestimated total emission quota for Poland;
and ii) distorted the real purpose of the directive as a cost-effec-
tive instrument for the fulfilment of the greenhouse gas emis-
sion commitments of the parties to the Kyoto Protocol by redu-
cing the national emission level for 2008-2012 far below what
was needed for Poland to fulfil its Kyoto objective.

Finally, the applicants contend that the Commission disregarded
the principles of legitimate expectations, proportionality, equal
treatment and the duty for institutional cooperation as well as
its obligation to state reasons.

(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

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 25 April
2007 in Case R 272/2005-4;

— Declare Community trade mark No 1 466 499 ‘GlobalRe-

mote’ invalid;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: The figurative mark ‘GlobalRemote’ for
goods and services in Classes 9, 38 and 42 (Community trade
mark No 1 466 499).

Proprietor of
GmbH.

the Community trade mark: Living Byte Software

Applicant for the declaration of invalidity: The applicant.

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: In particular, infringement of Article 7(1)(b) and (c)
of Regulation (EC) No 40/94 (1) since the Community trade
mark in respect of which a declaration of invalidity has been
sought is devoid of the necessary distinctive character and is of
a purely descriptive nature.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).