CJEU, president, June 8, 2012, No C-602/11 P(I)

THE PRESIDENT OF THE COURT,

1 By its appeal, Schenker AG ('Schenker') seeks to have set aside the order of the General Court of the European Union of 25 October 2011 in Case T-46/11 Deutsche Lufthansa and Others v Commission ('the order under appeal') dismissing Schenker's application for leave to intervene in support of the form of order sought by the defendant at first instance in Case T-46/11, which concerns an application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 - Airfreight) ('the contested decision'), and, in the alternative, for annulment or reduction of the fine imposed on Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG ('Lufthansa and Others').

2 Lufthansa and Others and the European Commission submitted their observations on the appeal on 6 and 4 January 2012, respectively.

3 Pursuant to the third paragraph of Article 57 of the Statute of the Court of Justice of the European Union, the appeal is to be heard and determined under the procedure referred to in Article 39 of the Statute.

The appeal

4 In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice, any person may intervene before the Courts of the European Union if such a person can establish an interest in the result of a case submitted to one of those courts. By its appeal, Schenker alleges that the General Court interpreted that provision incorrectly. This appeal is structured around two pleas, alleging:

- erroneous assessment of Schenker's interest in the final termination of the cartel in question, and

- erroneous assessment of Schenker's direct and existing interest in view of its distinctiveness in relation to the other consumers of airfreight services.

First plea

5 Schenker claims that the General Court erred in law in holding that it failed to establish the existence of a direct and existing interest in the result of the case. The General Court was wrong to take the view that the fact that Schenker, one of the largest logistics companies in the world, was a customer of Lufthansa and Others and of certain other members of the cartel in question throughout its entire duration and Schenker's interest in the final termination of that cartel are not sufficient to establish the existence of a direct and existing interest in the result of the case. In any event, Schenker submits that the order under appeal is insufficiently reasoned in that respect.

6 In particular, Schenker observes first that, contrary to the General Court's finding, its interest in the result of the case is not general but concerns a specific cartel on the fixing of 'fuel' and 'security' surcharges having serious anti-competitive consequences for its business. Moreover, the fact that the cartel in question has ceased has no effect on Schenker's interest in the result of the case since, if the General Court were to annul the contested decision, the members of that cartel could resume their anti-competitive conduct.

7 Next, Schenker claims that the General Court's finding that the result of the case has no impact on its economic freedom and is not liable to harm its commercial activity is incorrect. Its commercial activity depends on the services of the air freight companies which formed the cartel in question. Without the services of the members of that cartel, Schenker is not able to offer or provide worldwide logistic services to its downstream customers. The freedom to choose between competing undertakings each offering the required air transport services is part of Schenker's economic freedom. That freedom is severely affected if the air freight service providers form a cartel with the clear intention of harming suppliers of logistics services, such as Schenker, by imposing 'fuel' and 'security' surcharges.

8 In support of its arguments, Schenker relies on the case-law of the Court of Justice, according to which the prohibition on anti-competitive agreements produces direct effects in relations between individuals and creates rights for the individuals concerned which the national courts and the Courts of the European Union must safeguard (Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 39 and case-law cited). According to Schenker, it follows that the contested decision produces direct effects in relations between the members of the cartel in question and Schenker. Consequently, Schenker has a direct and existing interest in that decision's being upheld.

9 Lastly, Schenker claims that the General Court erred in finding that its situation is not comparable to that of undertakings to which the case-law of the Court of Justice and the General Court has granted leave to intervene in similar cases, owing to the fact that most of those undertakings seeking leave to intervene had either filed a complaint with the Commission or participated in the administrative procedure carried out by the Commission. In Schenker's submission, in view of the effects of the contested decision on its situation, its interest in intervening cannot depend on whether it lodged a complaint with the Commission or participated in that administrative procedure. It is in the very nature of a cartel that its victims do not have knowledge of its existence or its content.

10 It should be borne in mind that, according to settled case-law, the concept of 'an interest in the result of the case', within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought (order of the President of the Court of 6 April 2006 in Case C-130/06 P(I) An Post v Deutsche Post and Commission, paragraph 8). In that regard, it should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see, to that effect, order of the President of the Court of 25 January 2008 in Case C-461/07 P(I) Provincia di Ascoli Piceno and Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, paragraph 5).

11 In the order under appeal, the General Court first recalled, in paragraph 14 thereof, a number of cases in which the Courts of the European Union have granted certain undertakings leave to intervene in competition cases, in particular where the intervention concerns:

- legal entities forming part of the same economic entity as that to which the applicant belonged, which had themselves been held to be jointly and severally liable;

- competitors of an undertaking which was accused of abusing a dominant position within the meaning of Article 102 TFEU;

- associations composed of competitors or customers which opposed the alleged anti-competitive agreements containing restrictive clauses in their regard;

- parties which actively participated in the administrative procedure before the Commission and/or had filed the complaint which led to the Commission's investigation and to the adoption of the contested decision, and

- associations representing a large number of operators active in the sector concerned whose object included the protection of the interests of its members, since the case was capable of raising questions of principle affecting the functioning of the sector concerned, and the interests of its members were therefore capable of being affected to an appreciable extent by the judgment to be given.

12 Since Schenker does not fall within one of those categories of applicants for leave to intervene, the General Court then went on to observe, correctly, that Schenker's argument that it has an interest in obtaining the final termination of the cartel in question and the prevention of its reoccurrence cannot be considered to be a 'direct, existing interest in the result of the case' for the purposes of that case-law. First, the obligation on the participants in a cartel to bring to an end their anti-competitive practices is meaningful only to the extent that they have not already done so. As the General Court found, Lufthansa and Others' action does not refer to the part of the operative part of the contested decision ordering the termination of the cartel in question. Furthermore, it is significant to note that the Commission itself states, both in its observations and in the contested decision, that there are no indications that an end has not been put to that cartel.

13 Second, nor is the possibility, raised by Schenker, that the members of the cartel in question would resume their anti-competitive activities if the contested decision were to be annulled by the General Court capable of establishing a direct and existing interest in the result of the case. That line of argument is based on an assumption which is not substantiated by any specific evidence capable of establishing the intention of the members of that cartel of resuming those anti-competitive activities if the contested decision were to be annulled. On the contrary, as the Commission observed, the sanctions imposed by the authorities of certain non-Member States, in particular by the United States Department of Justice, may considerably deter the resumption of those activities.

14 With respect to the effects that the result of the case would have on Schenker's economic freedom and commercial activity, Schenker's line of argument is not capable of calling into question the General Court's analysis. As the General Court observed in paragraph 17 of the order under appeal, the contested decision does not concern exclusivity agreements or similar practices foreclosing the market. Moreover, the outcome of the case pending before the General Court will also not affect the capacity of downstream customers to conclude contracts with Schenker or their interest in doing so, or alter Schenker's contractual rights and obligations vis-à-vis Lufthansa and Others.

15 Contrary to the claim made by Schenker, the mere fact that an undertaking might possibly be affected by high prices caused by an alleged cartel does not distinguish it sufficiently from the other economic operators in the relevant sector which are also affected by the anti-competitive practices of the members of a cartel. It follows that the fact that an undertaking is a customer of the undertakings participating in a cartel is not sufficient, in itself, to establish the right to intervene in a case in which the undertakings accused of participating in the cartel challenge the legality of the decision establishing and punishing the alleged cartel.

16 Lastly, with respect to the fact that Schenker did not participate in the administrative procedure which led to the contested decision, it is sufficient to note that, as is apparent from paragraphs 14, 16 and 17 of the order under appeal, the General Court did not consider participation in that procedure to be a necessary requirement for establishing an interest in the result of the case. The General Court considered in general terms that active participation in the administrative procedure before the Commission and the filing of a complaint which led to the Commission's investigation and to the adoption of the contested decision are factors capable, in certain circumstances, of establishing the existence of an interest in the result of the case.

17 In the light of those considerations, the Court concludes that the examination of the first plea has not disclosed any errors of law which warrant setting aside the order under appeal.

18 Consequently, the first plea must be rejected as unfounded.

Second plea

19 By its second plea, Schenker claims that the General Court erred in law in finding that Schenker cannot be distinguished sufficiently from any other undertaking or person having an interest in the termination of the cartel in question. In fact, Schenker can be clearly distinguished from the large number of consumers of airfreight services for the following reasons:

- Schenker is one of the limited number of direct customers of Lufthansa and Others and of the other members of the cartel in question;

- only the direct customers paid illegal 'fuel' and 'security' surcharges directly to the members of the cartel in question and only Schenker paid directly to the members of that cartel, including to Lufthansa and Others, illegal surcharges amounting to hundreds of millions of euros;

- Schenker is the only victim of the cartel in question which has filed an application for access to the documents of the administrative procedure carried out by the Commission.

20 In Schenker's submission, the assessment of those matters ought to have led the General Court to find that it has a direct and existing interest in the result of the case.

21 That line of argument cannot be accepted.

22 First of all, as the General Court observed in paragraph 18 of the order under appeal, the fact that an undertaking might possibly be affected by high prices caused by an alleged cartel does not mean that it has the right to intervene in a case in which the undertakings accused of participating in the cartel challenge the legality of the decision establishing and punishing that cartel. Even if it were established that Schenker is one of a limited number of direct customers of the members of the cartel in question and that it had to pay a particularly high sum in illegal surcharges to those members, the fact remains that that harm would be of a pecuniary nature, would result from the high prices charged by the members of the cartel in question and, therefore, would be comparable to the harm suffered by any other direct or indirect customer of the members of that cartel.

23 Next, it should be pointed out that the General Court was right to find, in paragraph 26 of the order under appeal, that the purpose of proceedings relating to an action for annulment of a Commission decision punishing the anti-competitive conduct of an undertaking is not to make possible or facilitate the bringing of civil actions in the national legal system, such as claims for damages and interest. Their purpose is to review the legality of the decision by which the Commission punished the undertaking in question for infringing the rules of competition law and to review the amount of the fine consequently imposed on it.

24 It is true, according to the case-law of the Court of Justice, that the full effectiveness of Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in Article 101(1) TFEU would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition (see, to that effect, Case C-453/99 Courage and Crehan [2001] ECR I-6297, paragraph 26). However, to recognise that each physical or legal person who could potentially bring a civil action for damages for loss resulting from the anti-competitive conduct of an undertaking has a direct and existing interest in the result of a case for the purposes of Article 40 of the Statute of the Court of Justice would risk seriously undermining the effectiveness of the procedure before the Courts of the European Union. Such an interpretation would not be consistent with either the letter or the spirit of Article 40 thereof.

25 Lastly, with respect to Schenker's claim that it is the only victim of the cartel in question which has filed an application for access to the documents of the administrative procedure carried out by the Commission, it is sufficient to point out that that consideration is not capable of distinguishing Schenker from any other person interested in gaining access to the documents of that procedure. Pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), any person may submit such an application for access to documents of the institutions of the European Union at any time.

26 The Court must therefore conclude that the examination of the second plea has not disclosed any errors of law capable of warranting setting aside the order under appeal.

27 In those circumstances, in the light of all the foregoing considerations, this appeal must be dismissed.

Costs

28 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since Lufthansa and Others and the Commission have applied for costs and Schenker has been unsuccessful, Schenker must be ordered to pay the costs.

On those grounds, the President of the Court hereby orders:

1. The appeal is dismissed.

2. Schenker AG is ordered to pay the costs.