Action brought on 7 February 2007 - Fels-Werke GmbH and Others v Commission of the European Communities

(Case T-28/07)

Language of the case: German

Parties

Applicants: Fels-Werke GmbH (Goslar, Germany), Saint-Gobain Glass Deutschland GmbH (Aachen Germany) and Spenner Zement GmbH & Co KG (Erwitte, Germany) (represented by: H. Posser and S. Altenschmidt, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul Article 1.2 of the Commission's Decision of 29 November 2006 on the national plan for the allocation of greenhouse gas emission allowances notified by Germany pursuant to Directive 2003/87/EEC of the European Parliament and of the Council (document number unpublished), insofar as it declares the allocation guarantees in respect of the first action period described in Chapter 6.2 of Germany's national allocation plan under the headings 'Additional new installations under Paragraph 11 of the ZuG 2007' and 'Allocations under Paragraph 8 of the ZuG 2007' to be incompatible with Directive 2003/87/EC;

annul Article 2.2 of that decision insofar as it issues to the Federal Republic of Germany instructions for the application of the allocation guarantees in respect of the first action period described in Chapter 6.2 of Germany's national allocation plan under the headings 'Additional new installations under Paragraph 11 of the ZuG 2007' and 'Allocations under Paragraph 8 of the ZuG 2007' and in so doing also requires the application of the same performance factor as for other comparable existing installations;

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants challenge the Commission's decision of 29 November 2006 concerning the national plan for the allocation of greenhouse gas emission allowances which Germany notified in accordance with Directive 2003/87/EC of the European Parliament and of the Council. In that decision the Commission objects to certain aspects of the national allocation plan for Germany on account of incompatibility with Annex III to Directive 2003/87/EC. ¹

The applicants, operators of installations subject to compulsory emissions trading, claim to be directly and individually concerned by the contested decision.

In support of their action that they put forward four pleas:

First of all, they submit that on 29 November 2006 the defendant was no longer entitled to reject the German national allocation plan, as the mandatory time-limit for doing so in Article 9(3) of Directive 2003/87/EC had already expired.

Moreover, on the merits, the applicants complain of an incorrect application of Article 9(3) in conjunction with the criteria of Annex III to Directive 2003/87/EC. In their view, the allocation guarantees criticised by the Commission for new installations are not State aid within the meaning of Article 87(1) EC. No unjustified preference was given to the installations in question.

In addition the contested decision contains an inadequate statement of reasons and therefore infringes Article 253 EC.

Finally, the contested decision infringes the Community principle of the protection of legitimate expectations.

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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).