Parties Grounds Operative part

In Case C‑503/07 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 14 November 2007,

Saint-Gobain Glass Deutschland GmbH, established in Aachen (Germany), represented by H. Posser and S. Altenschmidt, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

Fels-Werke GmbH, established in Goslar (Germany),

Spenner-Zement GmbH & Co. KG, established in Erwitte (Germany),

applicants at first instance,

Commission of the European Communities, represented by U. Wölker, acting as Agent, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of L. Bay Larsen, President of the Chamber, P. Kūris and C. Toader (Rapporteur), Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

having regard to the appellant’s request that the case be dealt with under an expedited procedure pursuant to Article 62a of the Rules of Procedure of the Court,

after hearing the Advocate General,

makes the following

Order

1. By its appeal, Saint-Gobain Glass Deutschland GmbH (‘Saint-Gobain Glass Deutschland’) asks the Court to set aside the order of the Court of First Instance of the European Communities of 11 September 2007 in Case T‑28/07 Fels-Werke and Others v Commission (not published in the ECR) (‘the order under appeal’) dismissing as inadmissible its application for annulment in part of Commission Decision K(2006) 5609 of 29 November 2006 concerning the national plan for the allocation of greenhouse gas emission allowances notified by the Federal Republic of Germany for the period 2008‑2012 (‘the contested decision’).

Legal context

2. Article 1 of 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) establishes, with effect from 1 January 2005, such a scheme in order to promote reductions of greenhouse gas emissions, in particular of carbon dioxide, in a cost-effective and economically efficient manner.

3. According to Article 2 of Directive 2003/87, the directive applies to emissions resulting from the activities listed in Annex I, which include installations for the manufacture of glass.

4. Article 11 of Directive 2003/87 provides for a first period of allocation of allowances from 2005 to 2007 (‘first allocation period’), then for a second period of allocation of allowances from 2008 to 2012 (‘second allocation period’).

5. The conditions and procedures pursuant to which the competent national authorities allocate allowances, on the basis of a national allocation plan (‘NAP’), to the operators of installations during those two allocation periods are set out in Articles 9 to 11 of Directive 2003/87.

6. The first subparagraph of Article 9(1) of Directive 2003/87 states:

‘For each period referred to in Article 11(1) and (2), each Member State shall develop [an NAP] stating the total quantity of allowances that it intends to allocate for that period and how it proposes to allocate them. The [NAP] shall be based on objective and transparent criteria, including those listed in Annex III, taking due account of comments from the public. …’

7. The second subparagraph of Article 9(1) of Directive 2003/87 requires the Member States to publish and notify an NAP to the Commission of the European Communities and to the other Member States for each allocation period.

8. Article 9(3) of the directive provides as follows:

‘Within three months of notification of [an NAP] by a Member State under paragraph 1, the Commission may reject that [NAP], or any aspect thereof, on the basis that it is incompatible with the criteria listed in Annex III or with Article 10. The Member State shall only take a decision under Article 11(1) or (2) if proposed amendments are accepted by the Commission. Reasons shall be given for any rejection decision by the Commission.’

9. Under Article 10 of Directive 2003/87, the Member States must allocate at least 95% of the allowances for the first allocation period free of charge.

10. Article 11 of Directive 2003/87 concerning the allocation and issue of allowances provides:

‘1. For the three-year period beginning 1 January 2005, each Member State shall decide upon the total quantity of allowances it will allocate for that period and the allocation of those allowances to the operator of each installation. This decision shall be taken at least three months before the beginning of the period and be based on its [NAP] developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.

2. For the five-year period beginning 1 January 2008, and for each subsequent five-year period, each Member State shall decide upon the total quantity of allowances it will allocate for that period and initiate the process for the allocation of those allowances to the operator of each installation. This decision shall be taken at least 12 months before the beginning of the relevant period and be based on the Member State’s [NAP] developed pursuant to Article 9 and in accordance with Article 10, taking due account of comments from the public.

3. Decisions taken pursuant to paragraph 1 or 2 shall be in accordance with the requirements of the [EC] Treaty, in particular Articles 87 and 88 thereof. When deciding upon allocation, Member States shall take into account the need to provide access to allowances for new entrants.

…’

11. Annex III to Directive 2003/87 lists 11 criteria applicable to NAPs.

12. The 5th and 10th criteria in that annex state as follows:

‘5. The [NAP] shall not discriminate between companies or sectors in such a way as to unduly favour certain undertakings or activities in accordance with the requirements of the Treaty, in particular Articles 87 and 88 thereof.

…

10. The plan shall contain a list of the installations covered by this Directive with the quantities of allowances intended to be allocated to each.’

13. According to Article 13(1) of Directive 2003/87, the allowances shall be valid only for emissions during the period for which they are issued.

Background to the dispute

14. According to the order under appeal, the appellant operates a glass manufacturing plant at Porz. By a decision of 16 December 2004 of the Umweltbundesamt (Federal Environment Agency), it was allocated emission allowances for the first allocation period, in respect of a part of that installation which was put into operation during 2003 and 2004, on the basis of the German NAP (‘German NAP I’) and of Paragraph 8 of the Law on the national allocation plan for greenhouse gas emission allowances for the period 2005 to 2007 (Zuteilungsgesetz 2007) of 26 August 2004 (BGBl. 2004 I, p. 2211; ‘the ZuG 2007’).

15. Under the second sentence of Paragraph 8(1) of the ZuG 2007, the installation concerned is exempt from a compliance factor during a period of 12 years from the year of its coming into operation.

16. Under Paragraph 2 of the ZuG 2007, unless otherwise specified, the relevant provisions of that law are applicable only to the first allocation period.

17. Furthermore, Paragraph 7 of the Law of 8 July 2004 transposing Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community (Gesetz zur Umsetzung der Richtlinie 2003/87/EG über ein System für den Handel mit Treibhausgasemissionszertifikaten in der Gemeinschaft, BGBl. 2004 I, p. 1578; ‘the TEHG’) provides, inter alia, that the NAP adopted for each allocation period is the basis for a law on allocation pursuant to which the allocation is carried out.

18. Under Paragraph 9(1) of the TEHG, every operator of an installation has the right to obtain emission allowances under the conditions laid down in the law on allocation. Pursuant to Paragraph 9(2), the allocation is effected on the basis of the activity carried out during the particular allocation period.

19. Finally, Paragraph 10(1) of the TEHG provides that each allocation requires a written application to be made to the competent authorities.

20. On 4 July 2006, the Federal Republic of Germany notified its NAP for the second allocation period (‘German NAP II’) to the Commission, in accordance with Article 9(1) of Directive 2003/87.

21. Like the German NAP I, the German NAP II contains, in chapter 6.1, the general allocation rules for existing installations (‘Bestandsanlagen’) which entered into operation before 31 December 2002. With regard to installations in the industrial sector, the applicable compliance factor is 98.75%.

22. Moreover, chapter 6.2 of the German NAP II states, under the heading ‘Allocations under Paragraph 8 of the ZuG 2007’, that, pursuant to that provision of the ZuG, no compliance factor is to be applied, in the calculation of the number of emission allowances for installations which were put into operation between 1 January 2003 and 31 December 2004, for a period of 12 years from the date of putting into operation.

23. By the contested decision, the Commission rejected the German NAP II in part. In Article 1(2) of the decision, the Commission found that the allocation rules described in chapter 6.2 of the German NAP II, inter alia under the heading ‘Allocations under Paragraph 8 of the ZuG 2007’, were incompatible with criterion 5 in Annex III to Directive 2003/87, in so far as they resulted in an unjustified advantage for the installations concerned over otherwise comparable existing installations to which the general allocation methodologies applied.

24. The Commission considered the allocation of emission allowances free of charge for certain activities by application of a less stringent and therefore more advantageous compliance factor to be a selective economic advantage for certain undertakings, which could distort or threaten to distort competition and affect trade between Member States and which therefore was capable of constituting State aid contrary to Articles 87 EC and 88 EC.

25. The Commission conceded only that, during a given allocation period, the allocation of emission allowances to existing installations could be carried out in accordance with methods different from those applicable to ‘new entrants’ within the meaning of Article 3(h) of Directive 2003/87, who were thus recognised under that directive as constituting a distinct category. The justification for such unequal treatment, however, became obsolete during the following allocation period, when the initial ‘new entrant’ turned into an existing installation for which data comparable to those for existing installations was available.

26. In Article 2(2) of the contested decision, the Commission declared that it would not raise objections to the German NAP II, if, while avoiding any discrimination, the Federal Republic of Germany introduced and notified to it the following amendments:

‘2. [T]he allocation guarantees from the first trading phase referred to in chapter 6.2 of the [German NAP II] under the headings “Additional new installations under Paragraph 11 of the ZuG 2007’ and ‘Allocations under Paragraph 8 of the ZuG 2007” … are not applied to the extent that they lead to an allocation for installations concerned which would be more favourable than what otherwise comparable existing installations receive under the general allocation methodologies of the [NAP], i.e. the same compliance factors should apply as for otherwise comparable existing installations.’

The order under appeal

27. By application lodged at the Registry of the Court of First Instance on 7 February 2007, the appellant brought an action for annulment of the contested decision.

28. By separate document lodged the same day, the appellant applied for the case to be dealt with under the expedited procedure provided for in Article 76a of the Rules of Procedure of the Court. By letter of 23 February 2007, the Commission opposed dealing with the case under an expedited procedure. By decision of the Court of First Instance of 7 June 2007, the application for an expedited procedure was allowed.

29. By document lodged with the Registry of the Court of First Instance on 23 March 2007, the Commission raised, under Article 114(1) of the Rules of Procedure of the Court of First Instance, a plea of inadmissibility against the abovementioned action, on which the appellant submitted observations on 12 April 2007.

30. By its application, the appellant requested the Court of First Instance to:

– annul Article 1(2) of the contested decision to the extent that it declares the allocation guarantees from the first allocation period, referred to in chapter 6.2 of the German NAP II 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;

– annul Article 2(2) of the contested decision to the extent that it imposes obligations (‘Vorgaben’) on the Federal Republic of Germany relating to the application of the allocation guarantees from the first allocation period referred to in chapter 6.2 of the German NAP II under the headings ‘Additional new installations under Paragraph 11 of the ZuG 2007’ and ‘Allocations under Paragraph 8 of the ZuG 2007’, and to the extent that it requires the application of the same compliance factor as for otherwise comparable existing installations;

– order the Commission to pay the costs.

31. By the order under appeal, the Court of First Instance dismissed the action as inadmissible, holding that Saint-Gobain Glass Deutschland (among others), which was not an addressee of the contested decision, was not individually concerned by that decision within the meaning of the fourth paragraph of Article 230 EC.

32. In support of that conclusion, the Court of First Instance found, in paragraph 59 of the order under appeal, that the contested decision constituted an act of general application since it applied to objectively determined situations and entailed legal effects for categories of persons regarded generally and in the abstract. Articles 1(2) and 2(2) of the contested decision concerned all the operators of the installations covered, in a general and abstract manner, by the rules laid down in chapter 6.2 of the German NAP II which were active in the economic sectors subject to the scheme for greenhouse gas emission allowance trading under Annex I to Directive 2003/87. Accordingly, having regard to those provisions and subject to the existence of characteristics which were peculiar to them, those operators were affected in the same manner and placed in an identical situation.

33. The Court of First Instance then pointed out that, in accordance with settled case-law, natural or legal persons other than the person to whom a measure is addressed can claim that the measure is of individual concern to them, within the meaning of the fourth paragraph of Article 230 EC, only if it affects them by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (see Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107; Case C‑309/89 Codorníu v Council [1994] ECR I‑1853, paragraph 20; Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 36; and Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 45).

34. In that regard, the Court of First Instance explained that the sole fact that a measure of general application may have practical effects which differ as between the various persons to whom it applies is not such as to differentiate them from all the other operators concerned, where that measure is applied on the basis of an objectively determined situation.

35. In paragraph 61 of the order under appeal, the Court of First Instance held that the applicants in those proceedings, far from being individually distinguished by attributes peculiar to them, were affected in the same way as all the other operators of installations subject to the same national and Community legislation who were in the same situation. It was therefore only because of their objective status as operators covered by the rules in chapter 6.2 of the German NAP II and active in the sectors falling within Annex I to Directive 2003/87 that the applicants could claim to be affected by the contested decision.

36. In addition, in the same paragraph of the order under appeal, the Court of First Instance held that none of the arguments submitted by the applicants was capable of calling that finding into question.

37. It held in particular, in paragraph 65 of the order under appeal, that the argument could not be accepted that Saint-Gobain Glass Deutschland was part of a closed class of persons because it belonged to a group of operators who had applied for and obtained emission allowances during the period 2003 to 2004 under Article 8(1) of the ZuG 2007. In that regard, the Court of First Instance held, first, that Saint-Gobain Glass Deutschland had not provided any clarifications or produced any proof as to the composition of that supposed closed class of operators. Thus it had failed to place on the case‑file any list of operators who had benefited from the application of Article 8(1) of the ZuG 2007 similar to that produced by the other two applicants.

38. In addition, the Court of First Instance pointed out that the possibility of determining, at the time of the adoption of a contested measure, more or less precisely the number, or even the identity, of the persons to whom that measure applies by no means implies that it must be regarded as being of individual concern to them, as long as it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (Case C‑451/98 Antillean Rice Mills v Council [2001] ECR I‑8949, paragraph 52).

39. In those circumstances, the Court of First Instance accordingly held that Saint-Gobain Glass Deutschland had failed to demonstrate that it was individually concerned by the contested decision because of its supposed membership of a closed class of operators.

40. Furthermore, the Court of First Instance also held that it was not possible to derive from the objectives of Directive 2003/87, read in the light of recital 5 in the preamble, from criterion 5 in Annex III, or from any other provision of that directive, a guarantee for the operators of installations that a particular allocation method would be applied to them, let alone that they would obtain a particular quantity of greenhouse gas emission allowances, especially when the supposed guarantee referred to a number of allocation periods. On the contrary, Article 11(1) and (2) of Directive 2003/87, read in conjunction with Articles 9(1) and 13(1) of the directive, clearly distinguished between the first and second allocation periods and restricted the validity of the allocated emission allowances to a single allocation period, which implied that the Member States had to adopt separate allocation decisions for each period.

Forms of order sought by the parties

41. By its appeal, Saint-Gobain Glass Deutschland claims that the Court of Justice should:

– set aside the order under appeal in so far as it concerns the appellant;

– annul Article 1(2) of the contested decision to the extent that it declares incompatible with Directive 2003/87 the allocation guarantees from the first trading period referred to in chapter 6.2 of the German NAP II;

– annul Article 2(2) of the contested decision to the extent that it imposes obligations on the Federal Republic of Germany relating to the application of the allocation guarantees from the first trading period referred to in chapter 6.2 of the German NAP II, and to the extent that it requires the application of the same compliance factor as for other comparable existing installations;

– in the alternative, set aside the order under appeal and refer the case back to the Court of First Instance;

– order the Commission to pay the costs.

42. The Commission contends that the Court should dismiss the appeal as inadmissible and, in the alternative, unfounded. It also contends that the appellant should be ordered to pay the costs.

The appeal

43. In support of its appeal, Saint-Gobain Glass Deutschland relies on two pleas supporting the claim to set aside the order under appeal, alleging infringement of procedural law and an infringement of the fourth paragraph of Article 230 EC.

44. Under Article 119 of the Rules of Procedure, where an appeal is clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal.

Admissibility of the appeal

46. The Commission considers that the appellant no longer has an interest in bringing proceedings since the annulment of the provisions of the contested decision in the appeal would not produce any legal effects, on account of the adoption of Commission Decision C(2007) 5258 of 26 October 2007 authorising the amendments introduced by the Federal Republic of Germany to its legislation and in particular the replacement of the system based on a single compliance factor by another system.

49. In the present case, it should be pointed out that the decision on which the Commission relies in order to show the appellant’s lack of an interest to bring proceedings does not replace the contested decision and refers only to amendments in connection with Article 1(2) of the contested decision.

50. However, the appellant also contests the findings concerning the incompatibility with Directive 2003/87 of the allocation guarantees from the first period of allocation referred to in Article 2(2) of the contested decision to the extent that, first, that provision imposes obligations on the Member State to which the decision is addressed concerning the application of the allocation guarantees from the first trading period referred to in chapter 6.2 of the German NAP II and, second, it requires that State to apply the same compliance factor as for the other comparable existing installations.

52. At a result, the objection of inadmissibility raised by the Commission must be dismissed.

First plea in law alleging infringement of procedural law

Arguments of the parties

53. Saint-Gobain Glass Deutschland submits that the Court of First Instance has, by the order under appeal, committed an infringement of the right to a fair and judicial hearing of its case. In that regard, it claims in particular that the parties to an action must be given the possibility of expressing themselves on all the questions of fact and law relevant for the resolution of the dispute.

54. According to the appellant, the Court of First Instance based its order essentially on the fact that it had not produced further clarifications or proof with regard to the composition of the closed class of operators on which it relied in order to be recognised as a person individually concerned by the contested action. The appellant claims that in fact the Court of First Instance did not ask it to produce a list of the operators concerned. It follows that it was not in a position to explain to the Court of First Instance the reasons for the failure to produce such a list.

55. In that regard, the appellant considers that it had no reason to produce the list in question without being expressly requested by the Court of First Instance to do so. In addition, the fact of belonging to a closed class of operators affected by the adoption of the contested decision derives directly from the structure of the national legislation and therefore does not depend on the production of a list of the operators concerned.

56. Saint-Gobain Glass Deutschland also submits that it was impossible for it to produce such a list because the Umweltbundesamt is not allowed to accede to a request of that kind for reasons related to data protection. By contrast, it would have been open to the Court of First Instance to adopt a measure of organisation of procedure or a measure of inquiry. Thus, if the Court of First Instance had made such a request, the Federal Republic of Germany would have produced a list capable of demonstrating that the appellant belonged to a closed class of operators.

57. The Commission considers that the Court of Instance did not, by the contested order, commit any infringement of procedural law.

Findings of the Court

58. It should be noted at the outset that, contrary to what the appellant seems to believe, it was only for sake of completeness that the Court of First Instance pointed out that it had not furnished a list of the operators affected by the contested decision in order to show that it was individually concerned by the decision.

59. The Court of First Instance first of all held, in paragraph 61 of the order under appeal, that the applicants were not individually concerned by the contested decision and that none of the arguments put forward by them was capable of calling into question that assessment.

60. In particular, in response to certain arguments put forward by Saint-Gobain Glass Deutschland which were based on the claim that it belonged to a closed class of operators affected by the order under appeal, the Court of First Instance pointed out, in paragraph 65 of the order under appeal, that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom that contested measure contained in the decision applies by no means implies that those persons must be regarded as being individually concerned by that measure, as long as it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question.

61. In that context, the Court of First Instance found that Saint-Gobain Glass Deutschland had failed to provide any clarifications or to produce any proof as to the composition of that supposed closed class of operators. Therefore it was only for sake of completeness that it noted that the appellant had not placed a list of the operators on the case file, unlike the other applicants.

63. In those circumstances, the first plea in law must be rejected.

Second plea in law alleging infringement of the fourth paragraph of Article 230 EC

Arguments of the parties

64. By this plea, Saint-Gobain Glass Deutschland submits, essentially, that the Court of First Instance misapplied the concept of being individually concerned by a Community act.

65. According to the appellant, the class of operators concerned was conclusively defined and/or definable on the basis of German legislation and could not, in any event, be extended. In those circumstances, the Court of First Instance was not in a position to assert that the prohibition on the maintenance in force of the allocation guarantee applied by virtue of an objective legal or factual situation defined by the act in question.

66. According to the appellant, the operators were ascertained so precisely in the contested decision that the objective reference to the field of application of Article 8 of the ZuG 2007 could without difficulty have been replaced by a list of the names of the operators without changing the scope of that decision.

67. Relying on Joined Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411, paragraph 21, the appellant submits that the contested decision could have been considered by the Court of First Instance as a bundle of individual decisions, since, by that decision, the Commission prohibited, with regard to the operators covered by the allocation guarantee provided for in Article 8 of the ZuG 2007, the maintenance in force of that guarantee. In the end, the Commission decision on the German NAP II constitutes both a decision of general application and a bundle of individual decisions, in so far as it prohibits the application of allocation guarantees in accordance with Article 8 of the ZuG 2007.

68. The Commission submits that this plea in law should be dismissed as unfounded. In that regard, it considers that the Court of First Instance correctly applied the fourth paragraph of Article 230 EC.

69. The contested decision cannot be classified as a bundle of individual decisions, since the Commission did not rule on the individual applications and, in any case, was not in possession of sufficient information concerning the installations affected by the NAP notified to be in a position to take a decision having the effect which the appellant is attempting to prove.

Findings of the Court

73. In that regard, in contrast to what is submitted by the appellant in this appeal, the fact that the NAP notified by the Member State to the Commission must contain a list of the installations covered by the emission trading scheme and a statement of the allowances which that State intends to grant to those installations does not make it possible to conclude that, by the contested decision, the Commission ruled on the individual applications, as in the situation which characterised the International Fruit Company case.

74. That finding is corroborated by the fact that the list provided for in point 10 in Annex III to Directive 2003/87 refers to the installations concerned and not a list by name of the operators to whom allowances are allocated.

76. Finally, as the Court of First Instance pointed out in paragraph 67 of the order under appeal, it is not possible to derive from the objectives of Directive 2003/87, read in the light of recital 5 in the preamble, from criterion 5 in Annex III, or from any other provision of that directive, a guarantee for the operators of installations that a particular allocation method will be applied to them, let alone that they will obtain a particular quantity of greenhouse gas emission allowances. Moreover, the amendments to its NAP II introduced subsequently by the Federal Republic of Germany and accepted by the Commission confirm that finding.

77. In those circumstances, the Court of First Instance did not err in law in the application of Article 230 EC by finding that the contested decision was of general application and therefore not of individual concern to the appellant.

79. In view of all the foregoing considerations, this plea in law must be rejected as being clearly unfounded and the appeal, therefore, dismissed in its entirety.

Costs

80. Under Article 69(2) of the Rules of Procedure, which is, pursuant to Article 118 of those rules, applicable to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs against Saint-Gobain Glass Deutschland, which has been unsuccessful, it must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby:

1. Dismisses the appeal;

2. Orders Saint-Gobain Glass Deutschland GmbH to pay the costs.