Action brought on 27 September 2004 by EnBW Energie Baden-Württemberg AG against the Commission of the European Communities

(Case T-387/04)

(2005/C 6/75)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 September 2004 by EnBW Energie Baden-Württemberg AG, Karlsruhe (Germany), represented by C.- D. Ehlermann, M. Seyfarth, A. Gutermuth and M. Wissmann, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments:

The applicant is a German utility company. Insofar as the power stations operated by the applicant emit greenhouse gases, as from 1 January 2005 the applicant is subject to the Community scheme for greenhouse gas emission allowance trading introduced by Directive 2003/97/EC.

The applicant challenges, save for a number of matters which are not relevant in the present case, the decision of the Commission which endorsed the national plan communicated by Germany for the allocation of greenhouse gas emission allowances. In particular, the applicant complains of a rule in respect of transfers contained in the plan which allocates to a power station operator who decommissions an old installation and replaces it with a new one the quantity of allowances which it had for the decommissioned installation for a period of four years. In the applicant's view, that gives rise to an over-allocation of allowances which amounts to State aid within the meaning of Article 87(1) EC and cannot be justified. The defendant's different assessment in the contested decision is subject to manifest errors in the statement of reasons and does not show sufficient investigation of the facts. The contested decision therefore infringes Article 87(3) EC and Article 88(2) EC.

Further, in breach of Article 88(2) EC, the defendant failed to initiate the formal State aid procedure, although it must have had considerable doubt about the compatibility of that rule with the EC Treaty.

In addition, the contested decision infringes Article 9(3) of Directive 2003/87/EC and criterion 5 of Annex III thereto, as the over-allocation of emission allowances unduly favours competitors of the applicant, which are strengthened because undertakings like the applicant, which have to decommission nuclear power stations in the near future owing to statutory rules, are unjustifiably placed at a disadvantage.

Finally, the contested decision infringes Article 253 EC owing to numerous gross errors in the statement of reasons.

(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 of 25.10.2003, p. 32.