Action brought on 5 June 2007 - Gόrażdże Cement vCommission

(Case T-193/07)

Language of the case: English

Parties

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

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 Parliament and Council¹ (hereinafter "the Directive") should be invalidated:

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 notification. 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 Articles 9 and 11 of the Directive, as well as Article 10 EC on the principle of loyal cooperation.

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.

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¹ - Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a schemefor greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC(OJ 2003 L 275, p. 32)