Action brought on 17 September 2010 - Magnesitas de Rubián and Others v Commission

(Case T-430/10)

Language of the case: Spanish

Parties

Applicants: Magnesitas de Rubián SA (Incio, Spain), Magnesitas Navarras SA (Zubiri, Spain), Ellinikoi Lefkolithoi Anonimos Metalleftiki Viomichaniki Naftiliaki kai Emporiki Etaireria (Athens, Greece) (represented by: H. Brokelmann and P. Martínez-Lage, lawyers)

Defendant: European Commission

Form of order sought

principally delete paragraph 3 of the Reference Document on Best Available Techniques in the Cement, Lime and Magnesium Oxide Manufacturing Industries (OJ C 166 of 25 June 2010), and the references to the magnesium oxide industry which appear in the other paragraphs of that document;

in the alternative, and in the event that the General Court does not delete paragraph 3 of the reference document in its entirety, annul in any event paragraph 3.5.5.4, including in particular the emission levels in Table 3.11, and

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

This action is directed against an act adopted by the Commission in the framework of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control¹ that establishes a system of pollution control and provides for an authorisation mechanism for certain industrial installations.

That act considers the best available technique (BAT) is the reduction of SOx derived from the gases produced and fixes emission levels for SOx that, apart from being lower than in any other sector, are only achievable in the applicants' opinion by the use of techniques which cause serious environmental damage. Furthermore, the applicants argue that the emission levels are to be determined on the basis of the data supplied by a single undertaking and disregarding the procedure established for that.

In support of its application, the applicants raise four pleas in law.

Lack of competence by the Commission

The applicants assert in that connection that the Commission lacks competence to include the manufacture of magnesium oxide in the contested act.

Infringement of essential procedural requirements

According to the applicants, the contested act contains three infringements of essential procedural requirements:

Failure to communicate to the applicants the opening of the drafting procedure for the contested act and their delayed participation in the latter;

the absence in the contested act of the 'split views' presented by the applicants, and

failure to observe the period laid down for the analysis of the final draft of the contested act.

Infringement of Article 1 of Directive 2008/1 relating to the integrated prevention and control of pollution, in so far as the contested act violates the objective set out in Article 1 thereof, consistent with environmental protection considered as a whole.

Infringement of the general principle of equal treatment.

The applicants take the view that the contested act infringes the principle of equal treatment by treating in the same way undertakings which are in different situations.

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¹ - OJ 2008 L 24, p. 8.