Action brought on 12 January 2007 - Cemex UK Cement v Commission

(Case T-13/07)

Language of the case: English

Parties

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

Defendant: Commission of the European Communities

Form of order sought

to annul the Commission decision of 29 November 2006, concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC¹; insofar as

the latter decision failed to object to/approved an allocation of allowances to the applicant in respect of its Rugby plant which was inadequate and unlawful to the extent of 343.838 tonnes;

the latter decision failed to object to/approved an allocation to cement manufacturers in competition with the applicant which was excessive and unlawful to the extent of the 343.838 tonnes comprising as it did the under-allocation to the applicant;

the latter decision failed to object to/approved the allocation methodology laid down in paragraphs 3(7) and 3(8) of the UK national allocation plan, and paragraphs 28 and 30 of Appendix C to the UK national allocation plan insofar as the latter methodology treats a cement plant as commencing operations in a year in which the plant was undergoing commissioning, and treats this year as the first year of operation of such a plant, and calculates emission allowances on the basis of average emissions for the baseline period 2000-2003, excluding the lowest year's emissions, regardless of the actual length of the commissioning period of the plant in question;

to order the Commission to bear the applicant's costs.

Pleas in law and main arguments

The application at stake is made pursuant to Article 230 EC for the annulment, in relevant part, of Commission decision of 29 November 2006 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 of the Council.

The grounds for annulment advanced by the applicant are mainly that the Commission allegedly failed to object to/approved an under-allocation of allowances to the applicant's Rugby plant, which, according to the applicant:

unlawfully discriminates against that 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 United Kingdom authorities knew to be unrepresentative;

restricts the right of establishment of the applicant's parent company Cemex Espana, since it allegedly hinders and makes less attractive the exercise by the latter of a fundamental freedom, and cannot be justified by imperative requirements in the general interest; and

along with the resulting over-allocation to the applicant's competitors, amounts to state aid contrary to Article 87 and 88 EC.

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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, 25.10.2003, p. 32)