1.2.2014   

EN

Official Journal of the European Union

C 31/16

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annul Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC (1) of the European Parliament and of the Council (2013/448/EU, OJ 2013 L 240, p. 27), in so far as Article 1(1) and Annex IA rejected inclusion of the applicant in the list under Article 11 of Directive 2003/87/EC and the preliminary total annual amounts of emission allowances which should be allocated to the applicant under identifier DE000000000000010 free of charge;

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order the Commission to pay the costs.

1.

First plea in law, alleging failure to exercise discretion

In this context the applicant claims that the Union’s greenhouse gas emission allowance trading scheme for the third trading period (2013 to 2020) does not exclude allocations in particular cases of hardship and does not release the Commission, in its decisions, from having regard to the fundamental rights of undertakings and the principle of proportionality. The Commission has overlooked this and thereby did not properly exercise its discretion which Union law has granted it.

2.

Second plea in law, alleging infringement of the applicant’s fundamental rights

The applicant submits in that regard that the rejection by the national competent authority of the requested allocations infringes the applicant’s fundamental rights under Articles 17 and 16 of the Charter of Fundamental Rights of the European Union as well as the principle of proportionality. The expected under-supply of allowances to the applicant would cause it clear disproportionate hardship unforeseen by Directive 2003/87/EC. The creation of a situation likely to endanger the existence of undertakings, such as the applicant, is not appropriate, necessary or proportionate to meet the objectives set out in the directive.