**Case C-503/07 P**

**Saint-Gobain Glass Deutschland GmbH**

**v**

**Commission of the European Communities**

(Appeal – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – Integrated pollution prevention and control – Federal Republic of Germany – Allocation of allowances – Period 2008-2012 – Conditions – Individual concern – Inadmissibility – Right to a full hearing before a court – Right to a fair hearing)

Summary of the Order

1.        *Appeals – Interest in bringing proceedings*

2.        *Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them*

*(Art. 230, fourth para., EC; European Parliament and Council Directive 2003/87, Arts 9 and 11)*

1.        The Court may declare an appeal to be inadmissible when an event subsequent to the judgment of the Court of First Instance
has removed its prejudicial effect as regards the appellant. For an applicant to have an interest in bringing proceedings
the appeal must be likely, if successful, to procure an advantage to the party bringing it.

(see para. 48)

2.        The possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies,
by no means implies that it must be regarded as being of individual concern to them within the meaning of the fourth paragraph
of Article 230 EC, 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.

With regard to the application of Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within
the Community and amending Directive 96/61, a Commission decision addressed to a Member State and rejecting in part a National
Allocation Plan (NAP) for such allowances for the second allocation period is of general application, since it applies to
objectively determined situations and entails legal effects for categories of persons regarded generally and in the abstract.
Also, the fact that that decision resulted in the prohibition of the maintenance in force of the allocation guarantee which
could have been claimed by certain operators under a national law concerning allocation of allowances for the first allocation
period is not capable of conferring on that decision the character of a conglomeration of individual decisions. In that regard,
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 that decision, the Commission ruled on the individual applications.

In any case, whilst they cannot apply for the annulment of the contested decision, the operators concerned retain the possibility
of challenging the national measures taken in application of the contested decision and, in that context, of relying on its
illegality before the national courts, adjudicating in accordance with Article 234 EC.

(see paras 70-73, 78)


ORDER OF THE COURT (Sixth Chamber)

8 April 2008 ([\*](#Footnote*))

(Appeal – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – Integrated pollution prevention and control – Federal Republic of Germany – Allocation of allowances – Period 2008‐2012 – Conditions – Individual concern – Inadmissibility – Right to a judicial hearing – Right to a fair hearing)

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.

45      The Court considers that to be the case in the present proceedings and holds that, taking into account the making of the present
order, it is not necessary to rule on the application for an expedited procedure.

*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.

47      At the request of the Court, made pursuant to Article 54a of the Rules of Procedure, the Commission communicated that decision
to it.

48      In that regard, it should be pointed out that the Court may declare an appeal inadmissible when an event subsequent to the
judgment of the Court of First Instance has removed its prejudicial effect as regards the appellant. For an appellant to have
an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing
it (Case C‐19/93 P *Rendo and Others* v *Commission* [1995] ECR I‐3319, paragraph 13; and order in Case C‐111/99 P *Lech-Stahlwerke* v *Commission* [2001] ECR I‐727, paragraph 18).

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.

51      In those circumstances, and in the absence of additional information, the Court is not in a position to hold, as requested
by the Commission, that Saint-Gobain Glass Deutschland has no interest to bring the present appeal proceedings.

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.

62      In accordance with settled case-law, complaints directed against the grounds of a decision of the Court of First Instance
included purely for the sake of completeness cannot lead to the decision being set aside and are therefore nugatory (Joined
Cases C-189/02 P, C-202/02 P, C‐205/02 P to C‐208/02 P and C‐213/02 P *Dansk Rørindustri and Others* v *Commission* [2005] ECR I‐5425, paragraph 148, and order of 23 February 2006 in Case C‐171/05 P *Piau* v *Commission*, paragraph 86).

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

70      It must be held, as the Court of First Instance also correctly held, that the possibility of determining more or less precisely
the number, or even the identity, of the persons to whom a 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, as in the present case, that application takes effect
by virtue of an objective legal or factual situation defined by the measure in question (see, inter alia, *Antillean Rice Mills*, paragraph 52, and the orders in Case C‐131/92 *Arnaud and Others* v *Council* [1993] ECR I‐2573, paragraph 13, and Case C‐276/93 *Chiquita Banana and Others* v *Council* [1993] ECR I‐3345, paragraph 8).

71      With regard to the appellant’s argument that the contested decision is of a hybrid character in that it constitutes at the
same time a measure of general application and a bundle of individual decisions, it must be held, first, as also held by the
Court of First Instance in paragraph 59 of the order under appeal that the contested decision, which is addressed to the Federal
Republic of Germany, is of general application as it applies to objectively determined situations and entails legal effects
for categories of persons regarded generally and in the abstract.

72      Second, the fact that the contested decision resulted in the prohibition of the maintenance in force of the allocation guarantee
which could have been claimed by certain operators under Article 8 of the ZuG 2007 is not such as to confer on that decision
the character of a bundle of individual decisions.

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.

75      In addition, in accordance with Article 11(2) and (3) of that directive, it is for each Member State, not the Commission,
to decide on the total quantity of allowances it will allocate for the period in question, to initiate the process of allocation
of those allowances and to rule on allocation of those allowances. Such a decision is based on its NAP developed pursuant
to Article 9 and in accordance with Article 10 of that directive.

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.

78      In any case, it should be pointed out that, while they cannot apply for the annulment of the contested decision, the appellants
retain the possibility of challenging the national measures taken in application of the contested decision and, in that context,
of relying on its illegality before the national courts, adjudicating in accordance with Article 234 EC (see, to that effect,
Case 216/82 *Universität Hamburg* [1983] ECR 2771, paragraph 10, and Case C‐70/97 P *Kruidvat* v *Commission* [1998] ECR I‐7183, paragraphs 48 and 49).

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.**

[Signatures]

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[\*](#Footref*) Language of the case: German.