Case T-499/07: Action brought on 27 December 2007 — Republic of Bulgaria v Commission of the European Communities
Date: 2007-12-27
Institutions: Court of First Instance
Subjects: Bulgaria, European Commission, action for annulment (EU), greenhouse gas, reduction of gas emissions, tradeable emission permit

C 64/50

EN

Official Journal of the European Union

8.3.2008

Action brought on 20 December 2007 — Compañía
Española de Petróleos (Cepsa) v Commission

(Case T-497/07)

(2008/C 64/81)

Language of the case: Spanish

Alternatively, in respect of the amount of the fine, the applicant
complains that the Commission infringed the principle of sound
administration and the right of the applicant to a procedure
without undue delays by not adopting the statement of objec-
tions in a reasonable time in light of the information available,
infringed the principle of proportionality and made a manifest
error of assessment by not taking into account that the appli-
cant implemented a programme of compliance.

Parties

Applicant: Compañía Española de Petróleos (Cepsa)
(Madrid,
Spain) (represented by: P. Pérez-Llorca Zamora, O.Armengol i
Gasull and A. Pascual Morillo, lawyers)

Defendant: Commission of the European Communities

Action brought on 27 December 2007 — Republic of
Bulgaria v Commission of the European Communities

(Case T-499/07)

(2008/C 64/82)

Form of order sought

Language of the case: Bulgarian

to the extent

— Annul Articles 1 to 4 of the Commission Decision [C(2007)
4441]
they declare respectively that
Compañía Española de Petróleos SA has infringed Article 81
EC, impose a fine on it, order it immediately to cease the
infringement and include it as an addressee of the Decision

that

Parties

— Alternatively, reduce the fine imposed on Compañía Espa-

ñola de Petróleos SA, and

— Order the Commission to pay the costs of these proceed-

ings.

Applicant): Republic of Bulgaria (represented by: Anani Anaviev,
Daniela Drambozova and Elina Petranova)

Defendant: Commission of the European Communities

Pleas in law and main arguments

The action is directed against Commission Decision C(2007)
4441 final of 3 October 2007in the Case COMP/38710 —
the Commission
In the contested decision,
Bitumen Spain.
declared that the applicant, together with other companies, had
infringed Article 81 EC by having taken part, over a certain
period, in a set of agreements and concerted practices in the
market for penetration bitumen, namely agreements for sharing
the market and coordinating prices. In respect of those infringe-
ments the Commission imposed a fine for which the applicant
and another company are jointly and severally liable.

the applicant considers

In support of its claims, the applicant alleges first that there is
an error of law in attributing to the applicant the infringement
committed by another company by applying the case-law on
‘economic unit’. Further
the
Commission made a manifest error of assessment of the facts
by rejecting the evidence produced by the applicant in proof of
the independence of the company which committed the infrin-
gement and by considering that there were many factors indi-
cating that the latter company was not autonomous. In that
the Commission
context,
infringed the obligation to state reasons by rejecting without
foundation the arguments of the applicant on the independence
of the company which committed the infringement.

the applicant also considers that

that

Form of order sought

— on the basis of Article 230 EC, to annul

in its entirety
Commission Decision C(2007) 5255 final of 26 October
2007 concerning the national allocation plan for the period
from 2008 to 2012 for the allocation of greenhouse gas
emissions allowances, which was adopted by Bulgaria
pursuant to Directive 2003/87/EC of the European Parlia-
ment and of the Council,

alternatively,

— on the basis of Article 230 EC, to annul Commission Deci-
sion C(2007) 5255 final of 26 October 2007 concerning
the national allocation plan for the period from 2008 to
2012 for the allocation of greenhouse gas emissions allow-
ances, which was adopted by Bulgaria pursuant to Directive
2003/87/EC of the European Parliament and of the Council,
to the extent that that decision specifies the total number of
allowances to be allocated,

— to order the Commission of the European Communities to
bear the costs incurred by the Republic of Bulgaria in
connection with the proceedings.

8.3.2008

EN

Official Journal of the European Union

C 64/51

Pleas in law and main arguments

Commission accordingly infringed the principles of proportion-
ality and equal treatment.

The applicant claims that the contested Commission Decision
C(2007) 5255 final of 26 October 2007 concerning the
national allocation plan for the period from 2008 to 2012 for
the allocation of greenhouse gas emissions allowances should be
annulled in whole or in part for the following reasons:

Substantial procedural irregularities

The Commission rejected the Bulgarian national allocation plan,
without providing adequate reasons for doing so, on the basis
that the plan failed to satisfy criteria 1, 2, 3 and 10 of Annex III
to Directive 2003/87/EC (1). In so doing,
it infringed Article
253 EC.

The contested decision was adopted after the expiry of
period laid down in Article 9(3) of Directive 2003/87/EC.

the

Prior to the adoption of the decision, the Commission did not
give Bulgaria the opportunity to present its objections to the
national allocation plan being assessed on the basis of the latest
version of the PRIMES model. In so doing, it infringed the right
to a fair hearing.

Infringement of the EC Treaty or of a rule of
application

law relating to its

Article 9(1) and (3), together with Article 11(1), of Directive
2003/87/EC provides for
the Member States to have sole
competence to determine the total quantity of emissions allow-
ances. The Commission is to monitor the application of the
criteria set out in Annex III to the Directive, but is, however, not
the allowances
entitled to determine the total quantity of
without reference to the national allocation plan produced by
the Member States. The Commission exceeded its powers of
review under the directive, since it substituted for the metho-
dology adopted by Bulgaria, which satisfied the criteria laid
down in Annex III, a methodology which was unsuited to asses-
sing the Bulgarian economy and failed to comply with some of
the criteria.

The Commission assessed the Bulgarian national allocation plan
on the basis of the latest version of the PRIMES model, the data
for which were made available to Bulgaria only after the adop-
tion of the contested decision. The Commission accordingly
infringed the principle of loyal cooperation.

the Commission did not

the Bulgarian national allocation plan,

In assessing the national allocation plan under the PRIMES
model,
investigate the Bulgarian
national allocation plan with reference to the objectives of
Directive 2003/87/EC. In applying the PRIMES model to the
assessment of
the
Commission wrongly concluded that the plan was incompatible
with criteria 1, 2 and 3 of Annex III to the directive. The rejec-
tion of the plan and the reduction of the total quantity of allow-
ances to be allocated by 37 % has led to a position where
Bulgarian operators of installations are not put in the same posi-
tion as other operators in the Community's trading system. The

Having regard to the judgment of the Court of First Instance in
Case T-374/04, the Commission infringed the principles of the
protection of
legal certainty,
legitimate expectations and of
since it did not apply the instruments adopted by it pursuant to
in assessing the
Directive 2003/87/EC to their
Bulgarian national allocation plan. The principle of the protec-
tion of
infringed because the
Bulgarian national allocation plan was assessed by reference to
the latest version of the PRIMES model, the data for which were
the
made available to Bulgaria only after
contested decision.

legitimate expectations was

the adoption of

full extent

The principle of
legal certainty was infringed because the
Commission had recourse to a private document when assessing
the Bulgarian national allocation plan.

The principle of sound administration was infringed because, in
assessing the Bulgarian national allocation plan in relation to its
compatibility with criteria 1, 2, and 3 laid down in Annex III to
Directive 2003/87/EC, the Commission did not attentively and
objectively investigate all
relevant economic and ecological
factors.

The Commission unlawfully applied the instruments which it
to Directive 2003/87/EC in assessing the
adopted pursuant
it
Bulgarian national allocation plan.
infringed
In so doing,
to Directive
criteria 1, 2, 3, 4, 6 and 10 of Annex III
2003/78/EC.

(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

Action brought on 27 December 2007 — Republic of
Bulgaria v Commission of the European Communities

(Case T-500/07)

(2008/C 64/83)

Language of the case: Bulgarian

Parties

Applicant: Republic of Bulgaria (represented by: Anani Anaviev,
Daniela Drambozova and Elina Petranova)

Defendant: Commission of the European Communities