Action brought on 16 August 2007 - Cemex UK Cement v Commission

(Case T-313/07)

Language of the case: English

Parties

Applicant: Cemex UK Cement Ltd (Thorpe, United Kingdom), (represented by: S. Tromans, C. Thomann, lawyers, D. Wyatt QC and S. Taylor, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

to annul the Commission Decision of 12 June 2007, notified to the applicant, and received on 21 June 2007, rejecting the complaint made by Cemex UK Cement Limited concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and the Council;

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

This application seeks annulment of a Commission decision contained in a letter dated 12 June 2007 and received by the applicant on 21 June 2007, rejecting a complaint filed by the applicant concerning the national allocation plan for Phase II of the EU Emissions Trading Scheme notified by the United Kingdom in accordance with directive 2003/87/EC¹ of the European Parliament and the Council.

The applicant complained to the European Commission that the reduction of allowances under the latter national allocation plan, in respect of the applicant's Rugby plant, along with the resulting over-allocation in respect of installations operated by the applicant's competitors, amounted to unlawful State aid, which allegedly:

(a) unlawfully discriminates against the Rugby plant by failing to take sufficient account of the latter plant's period of commissioning, and by basing the allocation to the plant on a period of emissions which the UK authorities knew to be unrepresentative;

(b) impedes the right of establishment of the applicant's parent company, Cemex Espana SA.

The applicant further contends that the Commission was wrong to see no incompatible aid deriving from the "First Year Rule" and accordingly wrong to decline to initiate proceedings under Article 88(2) EC. In that sense, the applicant claims the Commission was wrong to conclude that the allocation methodology of allowances applied by the United Kingdom to the Rugby plant was not discriminatory and was consistent with Commission guidance.

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¹ - Directive 2003/87/EC of the European Parliament and of the Council concerning the establishment of a scheme for greenhouse gas emission allowance trading in the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32).