Action brought on 5 June 2007 - Lafarge Cement v Commission
(Case T-195/07)
Language of the case: Polish
Parties
Applicant: Lafarge Cement SA (represented by: P.K. Rosiak, legal adviser, and F. Puel, lawyer)
Defendant: Commission of the European Communities
Form of order sought
annul the Commission's decision of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances notified by Poland in accordance with Directive 2003/87/EC of the European Parliament and of the Council;
order the Commission to pay the costs.
Pleas in law and main arguments
The applicant seeks the annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances notified by Poland in accordance with Directive 2003/87/EC of the European Parliament and of the Council,
1 in which the Commission decided that certain aspects of the Polish National Allocation Plan for CO2 Emission Allowances for 2008-2012, notified to the Commission on 30 June 2006, were not compatible with Articles 9(1) and (3), 10 and 13(2) of and the criteria set out in Annex III to Directive 2003/87/EC. The decision in question reduces the carbon dioxide emission limit in 2008-2012 by 26.7% compared to the limit proposed by Poland in the national allocation plan for emission allowances notified to the Commission.
In support of its application, the applicant submits that the contested decision was adopted after the expiry of the three-month period for its adoption defined in Article 9(3) of Directive 2003/87/EC. As a result, according to the applicant, on 26 March 2007 the Commission was not entitled to adopt the contested decision or at least breached essential procedural requirements.
The applicant criticises the Commission, secondly, in that the contested decision infringes criteria 1 and 2 in Annex III to Directive 2003/87/EC, unjustifiably reducing the allocation of allowances made by Poland to a level markedly lower than that first notified, which had been consistent with the obligations assumed by Poland on the basis of the Kyoto Protocol.
The applicant further submits that, by adopting the contested decision, the Commission infringed the provisions of Article 9(3) in conjunction with Article 11(2) of Directive 2003/87/EC and the principle of legitimate expectations and the principle of cooperation, in so far as, instead of exercising the limited powers defined in Article 9(3) of Directive 2003/87/EC, without taking into account the methodologies contained in the National Allocation Plan II, it applied in the contested decision its own method of determining the average annual maximum number of allowances allocated to Poland and imposed it on Poland, usurping powers which the directive confers on the Member State. According to the applicant, the Commission infringed the principle of cooperation between the institutions of the Community and of the Member States by not informing Poland of the application of its own economic model before adopting the contested decision, thereby depriving Poland and the interested undertakings of the possibility of expressing an opinion on the subject of its appropriateness and possibly calling into question the data and bases underlying the Commission's conclusions.
In the fourth place, the applicant submits that the Commission infringed criterion 3 in Annex III to Directive 2003/87/EC by making use in the contested decision of out-of-date data concerning the forecast growth of the GNP, using too general data for calculating the CO2 emission index, and arbitrarily reducing the annual degree of CO2 emissions by an additional 2.5%.
Finally, the applicant submits that the contested decision is not adequately reasoned and for that reason infringes Article 253 EC.
____________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 L 275, 25.10.2003, p. 32).