Action brought on 28 November 2013 – DK Recycling und Roheisen v Commission
(Case T-630/13)
Language of the case: German
Parties
Applicant: DK Recycling und Roheisen GmbH (Duisburg, Germany) (represented by: S. Altenschmidt, lawyer)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul Article 1(1) of the Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC1 of the European Parliament and of the Council (C[2013] 5666, 2013/448/EU, OJ 2013 L 240, p. 27), in so far as it rejects inclusion of the installations with installation identifiers DE000000000001320 and DE-new-14220-0045, presented by Germany to the Commission within the meaning of Article 11(1) of Directive 2003/87/EC, falling within the scope of Directive 2003/87/EC and the corresponding preliminary annual amounts of emission allowances, which should be allocated to those installations free of charge;
order the defendant to pay the costs.
Pleas in law and main arguments
In support of the action, the applicant relies in essence on the following pleas in law:
The contested decision, in so far as it is challenged by the applicant, infringes Directive 2003/87/EC and Decision 2011/278/EU.2 Furthermore, the decision is incompatible with the principle of proportionality and the Charter of Fundamental Rights of the European Union. It is also not properly justified.
In so far as the rejection of the free allocation of allowances for the applicant’s installations is based on the fact that Germany allocated it an additional transitional free allowances as compensation for excessive hardship, the applicant claims that, contrary to the Commission’s opinion, that allocation is not contrary to Decision 2011/278. In any event, a special allocation for hardship cases is required as compensation for excessive burdens as a result of the trade in emissions guaranteed by the Charter of Fundamental Rights of the European Union, in particular the fundamental rights of freedom of undertakings and freedom to choose property, as well as the principle of proportionality.
In so far as the rejection of the free allocation of allowances for the applicant’s installations is based on the fact that Germany granted it an additional transitional free allowances for the manufacture of zinc concentrate in the applicant’s blast furnaces on the basis of a process emissions sub-installation, the applicant claims that the contested decision is incompatible with Decision 2011/278 and that the grounds for the decision are contradictory and insufficient.
Finally, the applicant complains of an infringement of the requirement of good administrative practice under Article 41 of the Charter of Fundamental Rights of the European Union. Ahead of the decision, the applicant was not given any opportunity to submit its opinion.
________________________1 Directive 2003/87/EC of the European Parliament and 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).
2 2011/278/EU: Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (notified under document C(2011) 2772 (OJ 2011 L 130, p.1).