EN Official Journal of the European Union C 64/15

Appeal brought on 19 November 2007 by Saint-Gobain Glass Deutschland GmbH against the order delivered by the Court of First Instance (Third Chamber) on 11 September 2007 in Case T-28/07 Fels-Werke GmbH, Saint-Gobain Glass Deutschland GmbH, Spenner-Zement GmbH & Co. KG v Commission of the European Communities

(Case C-503/07 P)

(2008/C 64/24)

Language of the case: German

Parties

Appellant: Saint-Gobain Deutschland GmbH (represented by: H. Posser and S. Altenschmidt, Rechtsanwälte)

Other parties to the proceedings: Fels-Werke GmbH, Spenner-Zement GmbH & Co. KG, Commission of the European Communities

Form of order sought

— Annul the order of the Third Chamber of the Court of First Instance of 11 September 2007 in Case T-28/07 (Fels-Werke and Others v Commission of the European Communities) in so far as it concerns the appellant;

— annul Article 1.2 of the Commission's Decision of 29 November 2006 on the national plan for the allocation of greenhouse gas emission allowances notified by Germany pursuant to Directive 2003/87/EC of the European Parliament and of the Council (document number unpublished), insofar as it declares the allocation guarantees in respect of the first action period described in Chapter 6.2 of Germany's national allocation plan under the heading ‘Allocations under Paragraph 8 of the ZuG 2007’ to be incompatible with Directive 2003/87/EC;

— annul Article 2.2 of that decision insofar as it issues to the Federal Republic of Germany instructions for the application of the allocation guarantees in respect of the first action period described in Chapter 6.2 of Germany's national allocation plan under the heading ‘Allocations under Paragraph 8 of the ZuG 2007’ and in so doing also requires the application of the same performance factor as for other comparable existing installations;

— in the alternative, annul the order referred to in the first indent above and refer the case back to the Court of First Instance;

— order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

By the contested order the Court of First Instance ruled that the appellant was not individually concerned and consequently dismissed as inadmissible its action for annulment of parts of the Commission's Decision of 29 November 2006 on the plan notified by Germany for the allocation of greenhouse gas emission allowances.

In support of its appeal the appellant claims that the procedural law which operates in its interests and material Community law, namely the fourth paragraph of Article 230 EC, have been infringed.

First, the Court of First Instance infringed the fundamental rights to a fair hearing and to be heard. It reasoned its finding that the appellant was not individually concerned primarily on the basis that it did not prove that it was a member, as claimed, of a closed class of operators and, in particular, on the basis that it did not submit a list of operators which fall within the application of Paragraph 8(1) of the ZUG 2007. However, at no point in the proceedings did the Court of First Instance request submission of a list of operators concerned by the allocation guarantee. The relevance of the submission of such a list was also not apparent to the applicant for any other reason since the specific and closed nature of the circle of operators benefiting from the allocation guarantee is already apparent from the mandatory legal structure of the ZUG 2007, as submitted before the Court of First Instance. Furthermore, in requesting the submission of such a list, the Court of First Instance is asking the appellant to do something which it is not actually in a position to do.

Second, the Court of First Instance infringed the fourth paragraph of Article 230 EC in that it wrongly found that the applicant was not individually concerned. The group of persons, to whom the contested decision applies, is not only — in the words of the Court — ‘more or less precisely’ determined, but is also conclusively defined by operation of law as a result of past events and it is not conceivable how it may be expanded. As regards the operators concerned by the allocation guarantee in Paragraph 8 of the ZuG 2007, the contested decision could, furthermore, also be viewed as a bundle of individual decisions since the continued application of the allocation guarantee has been denied to each and every one of those operators.