GC, 7th chamber, September 23, 2020, No T-64/20

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL 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 EEA Agreement (Case 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, Telefónica Germany GmbH & Co. OHG sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

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 14 July 2020, the applicant opposed Telefónica Germany’s application to intervene.

13 By document lodged at the Court Registry on 20 July 2020, the Commission informed the Court that it welcomed the application to intervene and that Telefónica Germany had a clear interest in the outcome of the dispute.

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 Telefónica Germany 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 Union or between Member States, on the one hand, and institutions of the 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 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 the present case, first, the applicant for leave to intervene explains that, as is clear from recital 1849 of the contested decision, it is the fix-it-first remedy-taker of a wholesale cable broadband access commitment offered by Vodafone (‘the WCBA commitment’). According to the applicant for leave to intervene, that commitment consists of an agreement between it and Vodafone under which Vodafone is to provide it with wholesale cable broadband access, enabling it to offer retail fixed internet access services, fixed telephony services and ‘over the top’ (OTT) services. The applicant for leave to intervene adds that the Commission concluded, first, that the WCBA commitment was sufficient to eliminate the competition concerns connected with the retail supply of fixed internet access services and ‘dual-play’ fixed internet access services and fixed telephony services bundles, and, second, that that commitment had contributed to eliminating the competition concerns identified in the market for the wholesale supply of television signal transmission services in Germany.

19 Secondly, it maintains that it participated actively in the Commission’s examination of the notified transaction and that it provided detailed information, among other things, in response to the market test carried out by the Commission.

20 Thus, in so far as the applicant calls into question the Commission’s assessment of the ability of the WCBA commitment and of the applicant for leave to intervene to resolve the competition concerns in the markets for the retail supply of fixed internet access services and ‘dual-play’ bundles in Germany, as well as in the market for the wholesale supply of television signal transmission services in Germany, the latter has a legitimate interest in the outcome of the dispute.

21 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.

22 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.

23 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 (order of the Vice-President of the Court 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).

24 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 (see order of the Vice-President of the Court of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), not published, EU:C:2016:476, paragraph 20).

25 In the present case, it is true that the applicant for leave to intervene is the operator identified in the WCBA commitment entered into by Vodafone pursuant to a fix-it-first remedy. It is also common ground that Vodafone concluded an agreement with the applicant for leave to intervene in order to comply with the WCBA commitment (‘the access agreement’).

26 However, in the first place, it should be noted that, as is apparent from Article 4 of the contested decision, that decision is addressed only to Vodafone. The fact that the applicant for leave to intervene is referred to in that decision as the operator previously identified in the WCBA commitment undertaken by Vodafone does not make it possible to regard it as an addressee of that decision.

27 In the second place, it must be pointed out that the second subparagraph of Article 8(2) of Regulation No 139/2004 provides that the Commission may attach to its decision conditions and obligations intended to ensure that the undertakings concerned, in the present case Vodafone, comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the internal market.

28 Furthermore, as is apparent from Article 2 of the contested decision, the declaration of compatibility of the merger transaction contained in Article 1 of that decision is subject to conditions. Furthermore, in Article 3 of the contested decision, the Commission imposed obligations on Vodafone.

29 Those conditions and obligations are referred to in the text of the commitments annexed to that decision. In the preamble to the commitments, it is stated that, pursuant to Article 8(2) of Regulation No 139/2004, Vodafone entered into commitments ‘vis-à-vis the European Commission’ with a view to rendering the concentration compatible with the internal market.

30 Thus, the conditions and obligations mentioned in the contested decision, and in particular the WCBA commitment, are binding on Vodafone and concern the legal relationship between Vodafone and the Commission.

31 However, the applicant for leave to intervene has not shown, by references to the contested decision and the text of the commitments which form an integral part of it, that the conditions and obligations set out in that decision produce, on its situation, effects different from or additional to the effects resulting from the access agreement. Consequently, the applicant for leave to intervene also fails to show that annulment of the contested decision would have consequences for its legal position.

32 In the third place, the applicant for leave to intervene does not claim and, a fortiori, does not demonstrate that annulment of the contested decision would result in the removal of Vodafone's obligation, laid down in the access agreement, to provide it with wholesale cable broadband access.

33 On the one hand, as the applicant rightly claims, there is nothing in the application for leave to intervene to suggest that the agreement concluded between Vodafone and the applicant for leave to intervene is conditional upon the validity of the contested decision. In its application to intervene, Telefónica Germany does not invoke the existence of such a contractual term and, a fortiori, does not adduce any evidence to that effect.

34 On the other hand, it is not apparent from the contested decision or from the wording of the commitments which form an integral part of that decision, that the access agreement contains a condition which provides for the automatic termination of the respective obligations of the parties to that agreement, in the event that the Court annuls the contested decision.

35 Finally, and more generally, it should be noted that, in its application to intervene, the applicant for leave to intervene does not claim that the access agreement would be affected by the annulment of the contested decision. For example, the applicant for leave to intervene does not argue that the Commission has the power to challenge the access agreement or to oblige the parties to that contract to terminate it.

36 Consequently, the applicant for leave to intervene, which has confined itself to explaining that it was the operator previously identified in the WCBA commitment, that it had concluded an access agreement with Vodafone and that that commitment was such as to remedy in whole or in part the competition concerns identified by the Commission, has not shown that annulment of the contested decision would produce legal effects directly on it or on that access agreement.

37 Given the above, it must be held that the applicant for leave to intervene has not demonstrated that its legal position would be affected in a sufficiently direct manner by the possible annulment of the contested decision and that it accordingly has a direct and existing interest in the result of the case.

38 That finding is not called into question by the fact that the applicant for leave to intervene took part in the administrative procedure.

39 Such involvement is not sufficient, as such, to establish an interest in the result of the case (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).

40 In addition, the involvement of the applicant for leave to intervene in the administrative procedure cannot compensate for the total absence, in the application to intervene, of explanations concerning the possible consequences of the potential annulment of the contested decision on its situation. In other words, the involvement of the applicant for leave to intervene in the administrative procedure is not sufficient to make up for the lack of justification, on the part of the latter, for a direct and existing interest in the result of the case.

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

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

 Costs

43 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 Telefónica Germany, it is necessary to rule on the costs relating to its application.

44 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 Telefónica Germany GmbH & Co. OHG is dismissed.

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