CJEU, president, October 20, 2020, No T-64/20

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT

 Background to the dispute

1 On 19 October 2018, the European Commission received notification, in accordance with Article 4(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), of a proposed concentration whereby Vodafone Group plc intended to acquire, within the meaning of Article 3(1)(b) of that regulation, sole control of the telecommunications activities of Liberty Global plc in the Czech Republic, Germany, Hungary and Romania. The transaction consisted of a purchase and sale agreement by which Vodafone had planned to acquire 100% of the shares in the companies carrying out the relevant telecommunication activities of Liberty Global (‘the notified transaction’).

2 On 18 July 2019, the Commission, pursuant to Article 8(2) of Regulation No 139/2004, adopted Decision C(2019) 5187 final declaring the notified transaction to be compatible with the internal market and the Agreement on the European Economic Area (EEA) (Case COMP/M.8864 – Vodafone/Certain Liberty Global Assets) (‘the contested decision’).

3 In the contested decision, the Commission initially assessed the likely effects of the notified transaction.

4 In that regard, first, it considered that the notified transaction would significantly impede effective competition on the market for the retail supply of fixed internet access services in Germany as a result of non-coordinated horizontal effects. The Commission also considered that those findings applied to the market for the retail supply of ‘dual-play’ fixed internet access and fixed-telephony service bundles in Germany on account of a significant overlap between the two markets.

5 Secondly, the Commission considered that the notified transaction would significantly impede effective competition on the market for the wholesale supply of television signal transmission services in Germany on account of non-coordinated effects linked in particular to an increase in the market power of the entity resulting from the notified transaction.

6 Finally, it considered that the notified transaction did not give rise to competition concerns in the other markets affected by it.

7 Subsequently, the Commission considered that the commitments undertaken by Vodafone were capable of rendering the notified transaction compatible with the internal market and the EEA Agreement. It therefore concluded that the notified transaction, as amended following the commitments offered by Vodafone, would not significantly impede effective competition on the markets in which competition concerns had been identified.

8 Thus, Article 1 of the contested decision states that the notified transaction is compatible with the internal market and the EEA Agreement pursuant to Article 8(2) of Regulation No 139/2004 and Article 57 of the EEA Agreement. Furthermore, Articles 2 and 3 of that decision lay down conditions and obligations respectively in order to ensure that Vodafone complies with the commitments it has given to the Commission.

 Procedure

9 By application lodged at the Court Registry on 3 February 2020, the applicant, Deutsche Telekom AG, brought an action for annulment of the contested decision.

10 By document lodged at the Court Registry on 14 May 2020, GdW Bundesverband deutscher Wohnungs- und Immobilienunternehmen eV (‘GdW’) sought leave to intervene in the present proceedings in support of the form of order sought by the applicant.

11 That application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.

12 By document lodged at the Court Registry on 31 August 2020, the applicant informed the Court that it welcomed the application to intervene and that GdW had a clear interest in the result of the case.

13 By document lodged at the Court Registry on the same day, the Commission informed the Court that it had no comments on GdW’s application to intervene.

14 The main parties requested that, in accordance with Article 144(5) and (7) of the Rules of Procedure, certain confidential information in the file be excluded from notification to GdW and produced, for the purposes of that notification, a non-confidential version of the procedural documents in question.

 Law

15 In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, any person establishing an interest in the result of a case submitted to the General Court, except in cases between Member States, between institutions of the European Union or between Member States, on the one hand, and institutions of the European Union, on the other hand, may intervene in that case.

16 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the statute, 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 and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (see order of the President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 6 and the case-law cited).

17 In that regard, it is appropriate, in particular, to ascertain that the applicant for leave to intervene is directly affected by the contested measure and that its interest in the result of the case is certain. In principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is such as to change the legal position of the applicant for leave to intervene (see order of the President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7 and the case-law cited).

18 In that regard, as regards associations, the EU Courts allow intervention by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (order of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66, and orders of 17 February 2016, Allergopharma v Commission, T‑354/15, not published, EU:T:2016:121, paragraph 9, and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).

19 More particularly, an association of undertakings may be permitted to intervene in a case if it is representative of a significant number of undertakings active in the sector concerned, if its object includes the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders of 28 May 2004, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2004:164, paragraph 21; of 17 February 2016, Allergopharma v Commission, T‑354/15, not published, EU:T:2016:121, paragraph 9; and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).

20 In the present case, in order to demonstrate that it has a direct, existing interest in the result of the case, GdW maintains, first, that, in its capacity as an umbrella organisation and confederation, it represents approximately 3 000 housing companies which are members of its regional associations and which, in total, manage approximately six million properties, which represents almost 30% of all rental properties in Germany. It adds that, with the involvement of its members, it advises those housing companies inter alia in all matters of media provision. GdW also submits that those housing companies are customers of the undertakings concerned by the notified transaction on the market for the retail provision of services for the transmission of television and radio signals to customers living in multi-dwelling units.

21 Next, GdW claims that the result of the case directly influences the competitive relationships on the market for the retail provision of services for the transmission of television and radio signals to customers living in multi-dwelling units, whose operation will be affected to the detriment of the housing companies it represents. GdW adds that the contested decision in its current form would lead to a significant impediment to effective competition on that market and consequently, the result of the case could substantially harm its members.

22 Secondly, GdW explains that it has participated actively, as a third party having justified a significant interest, in the examination, by the Commission, of the notified transaction, and that it supplied detailed information, including in reply to several questionnaires, in the form of written observations and by participating in telephone calls and meetings with the Commission.

23 As a preliminary point, it should be recalled that, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person may intervene before the Courts of the European Union if he or she ‘can establish’ an interest in the result of a case submitted to one of them.

24 Under Article 143(2)(f) of the Rules of Procedure, an application to intervene must contain a statement of the circumstances establishing the right to intervene where the application is made under the second or third paragraph of Article 40 of the Statute.

25 According to settled case-law, it is in principle for the person alleging facts in support of a claim to adduce proof of such facts (see order of the Vice-President of the Court of Justice of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), not published, EU:C:2016:476, paragraph 19 and the case-law cited).

26 There is nothing in the actual wording of Article 143(2)(f) of the Rules of Procedure to suggest that an application to intervene under the second and third paragraphs of Article 40 of the Statute of the Court of Justice of the European Union is subject to a reduced burden of proof with regard to the principle that it is for the person alleging facts in support of a claim to adduce proof of such facts (order of the Vice-President of the Court of Justice of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), not published, EU:C:2016:476, paragraph 20).

27 In the present case, it is true that, in the administrative procedure leading to the adoption of the contested decision, the Commission, by decision of 28 March 2019 adopted under Article 5 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29), granted GdW’s request to be heard in accordance with Article 18(4) of Regulation No 139/2004. It follows inter alia from that decision, submitted in annex to the application to intervene, that the Commission considered that GdW represented approximately 3 000 housing companies which were members of its regional associations and which, in total managed approximately six million properties, almost exclusively in multi-dwelling units. In addition, the Commission indicated in that decision that GdW could, as the legally recognised representative of its members, combine the interests of different companies in the housing sector and rely on them together in the merger control procedure at issue.

28 However, it must be noted that, even if the statutes of GdW and a list of its members were provided to the Commission in the administrative procedure, those documents have not been submitted before the Court.

29 In annex to the application to intervene, there is, in addition to the Commission decision of 28 March 2019 and documents arising from the administrative procedure, merely an extract from the register of associations.

30 It is true that that extract from the register of associations makes it possible to acknowledge that GdW constitutes a properly registered association with legal personality. It also follows from that document that GdW is governed by its statutes. However, that extract from the register of associations does not include any information concerning the object of GdW and its composition.

31 Thus, it must be held that GdW has submitted before the Court neither its statutes nor the list of its members nor any other document showing the extent to which it was representative on the date on which it lodged its application to intervene in the present case before the Court.

32 Therefore, it is not possible for the Court to confirm the exact composition of GdW, whether it is representative and whether its object is indeed to protect the interests of its members (see, by analogy, order of 10 January 2006, Diputación Foral de Álava and Gobierno Vasco v Commission, T‑227/01, EU:T:2006:3, paragraph 9).

33 In the light of the foregoing, it must be held that GdW has not submitted evidence such as to substantiate its claims that, first, it is representative of a significant number of undertakings active in the sector concerned and, secondly, its object comprises the protection of its members’ interests.

34 It follows that the 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 has not been established.

35 That finding is not called into question by the fact that GdW took part in the administrative procedure.

36 Such involvement is not sufficient, as such, to establish an interest in the result of the case (see, to that effect, orders of 7 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:982, paragraph 15; of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 28; and of 7 May 2020, Canon v Commission, T‑609/19, not published, EU:T:2020:203, paragraph 24).

37 In addition, the involvement of GdW in the administrative procedure, even as a third party having justified a sufficient interest, cannot compensate for the absence, in the application to intervene, of evidence allowing the Court to ascertain, on the date on which this application was lodged, its exact composition, whether it represents a significant number of undertakings active in the sector concerned and whether its object is indeed to ensure protection of its members’ interests.

38 The application whereby GdW sought to intervene in the present proceedings in support of the form of order sought by the Commission is therefore dismissed.

39 In those circumstances, there is no need to rule on the requests for confidential treatment of certain material in the file vis-à-vis GdW (see paragraph 14 above).

 Costs

40 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings with regard to GdW, it is necessary to rule on the costs relating to its application.

41 Pursuant to Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the absence of forms of order of the main parties in respect of the costs of the present application to intervene, it is necessary to order the main parties and the applicant for leave to intervene to bear their own costs.

On those grounds,

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT

hereby orders:

1. The application to intervene of GdW Bundesverband deutscher Wohnungs- und Immobilienunternehmen eV is dismissed.

2. GdW, Deutsche Telekom AG and the European Commission shall bear their own costs relating to the application to intervene.