Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE

11 March 2008 (*)

(Intervention - Interest in the result of the case - Confidentiality)

In Case T-80/06,

Budapesti Erőmű 'Zártkörűen Működő Részvénytársaság', established in Budapest (Hungary), represented by M. Powell, Solicitor, C. Arhold and K. Struckmann, lawyers,

applicant,

v

Commission of the European Communities, represented by K. Talabér-Ricz and N. Khan, acting as Agents,

defendant,

ACTION for annulment of the Commission's decision of 9 November 2005 to initiate the procedure under Article 88(2) EC with regard to the power purchase agreements concluded between the network operator Magyar Villamos Művek (MVM), owned by the Hungarian State, and certain electricity producers prior to the accession of the Republic of Hungary to the European Union (State aid C 41/2005 (ex NN 49/2005) − Hungarian Stranded Costs) (OJ 2005 C 324, p. 12),

THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Procedure

1 By application lodged at the Registry of the Court on 3 March 2006, the applicant brought an action under the fourth paragraph of Article 230 EC for annulment of the Commission's decision of 9 November 2005 to initiate the procedure under Article 88(2) EC with regard to the power purchase agreements ('PPAs') concluded between the network operator Magyar Villamos Művek (MVM), owned by the Hungarian State, and certain electricity producers prior to the accession of the Republic of Hungary to the European Union (State aid C 41/2005 (ex NN 49/2005) − Hungarian Stranded Costs) (OJ 2005 C 324, p. 12; 'the Decision').

2 By document lodged at the Registry of the Court on 6 June 2006, Csepeli Áramtermelö kft ('Csepeli') applied to intervene in support of the form of order sought by the applicant.

3 The application to intervene was served on the parties to the case on 13 June 2006 in accordance with Article 116(1) of the Rules of Procedure of the Court of First Instance. Unlike the applicant, the defendant contended that the application to intervene should be rejected.

4 By letter lodged at the Registry of the Court on 3 July 2006, the applicant requested confidential treatment, as regards Csepeli, for certain parts of its application and the defence. By letter lodged at the Registry on 4 August 2006, it made the same request with regard to certain parts of its reply, and by letter lodged at the Registry on 8 November 2006, in respect of certain parts of the rejoinder. The applicant has produced a non-confidential version of the documents for which it has requested confidential treatment.

The application to intervene

5 Csepeli submits that it has established an interest in the result of the case submitted to the Court within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice. In that regard, it states that it is affected by the Decision in the same way as the applicant. Like the applicant, Csepeli, as an electricity producer supplying certain services to MVM, has a long-term contractual relationship with MVM. Csepeli's interest in the result of the case follows from the Decision, according to which, Csepeli submits, 'the PPAs constitute State aid within the meaning of Article 87(1) [EC] to the electricity producers, parties to a PPA with MVM' and those PPAs cannot be regarded as 'existing' aid within the meaning of Article 88(1) EC.

6 The Commission does not dispute that the Decision also applies to the PPAs between Csepeli and MVM. Despite that fact, Csepeli has not established a direct interest in the result of the case. The main proceedings relate only to the applicant, such that the operative part of the judgment in those proceedings will not determine the legal position of Csepeli. Csepeli merely refers to similarities between its situation and that of the applicant.

7 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance by virtue of the first paragraph of Article 53 of the Statute, any person establishing an interest in the result of any case, save in cases between Member States, between Community institutions or between Member States and Community institutions, is entitled to intervene.

8 It should be recalled that an interest in the result of the case, within the meaning of Article 40 of the Statute of the Court of Justice, means a direct, existing interest in the grant by the Court of the order as sought, in support of which the intervention is made, and not an interest in relation to the pleas in law or arguments put forward (Orders of the Court, of 25 November 1964 in Case 111/63 Lemmerz-Werke v High Authority [1965] ECR 716, and of 12 April 1978 in Joined Cases 116/77, 124/77 and 143/77 Amylum and Others v Council and Commission [1978] ECR 893, paragraph 7; and of the President of the Court of Justice in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen [1997] ECR I-3491, paragraph 53). The 'result' of the case is to be understood as the final decision requested of the court hearing the matter, as it would be embodied in the operative part of the judgment. In particular, it is appropriate to ascertain whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is established.

9 In addition, it is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific act whose annulment is sought and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties (Order of the President of the Court of Justice in Case C-186/02 P Ramondín and Ramondín Cápsulas v Commission [2003] ECR I-2415, paragraph 14; orders in Case T-15/02 BASF v Commission [2003] ECR II-213, paragraph 27, and Case T-14/00 Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission [2004] ECR II-497, 'the Coöperatieve order', paragraph 12).

10 In the present case, firstly, it is appropriate to note that, in its submissions, the applicant claims that the Court should '... annul the [Decision], or, in the alternative, ... annul the Decision as far as the PPAs concluded by the applicant are concerned'. As is apparent from the very words used, the Commission is incorrect in its contention that the application in the main proceedings 'only seeks relief as regards the PPAs concluded by [the applicant]'. Clearly, on the contrary, the application seeks, principally, the annulment of the Decision in its entirety. It is only in the alternative that a claim is made for annulment of the Decision 'as far as the PPAs concluded by the applicant are concerned'.

11 Secondly, it should be noted, without prejudice to examination of the pleas of inadmissibility raised by the Commission in its defence, that the Decision applies to the PPAs concluded by both Csepeli and the applicant. What is more, it is apparent from case-law that such a decision to initiate the procedure under Article 88(2) EC in relation to a measure in the course of implementation and classified as new aid necessarily alters the legal position of the measure under consideration and that of the undertakings which are its beneficiaries, particularly as regards the pursuit of its implementation (Case C-400/99 Italy v Commission ('Tirrenia'), [2001] ECR I-7303, paragraph 59). Accordingly, Csepeli's interest in the result of the case cannot be regarded as indirect merely because of similarities between its situation and that of the applicant.

12 Thirdly, the case-law cited by the Commission (Case T-227/95 AssiDomän Kraft Products and Others v Commission [1997] ECR II-1185, paragraph 59, set aside in other respects by the judgment in Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363), according to which the Community judicature has before it only the elements of the decision which relates to a person individually concerned by a decision consisting of a bundle of individual decisions, where that person decides to bring an action for annulment, does not call into question the foregoing considerations. The Commission has neither shown nor even asserted that the Decision constituted a bundle of individual decisions.

13 The Commission is indeed correct in observing that that case-law has been applied to State aid cases (the Coöperatieve order, paragraph 9 above, paragraph 14). The facts of the case which led to that order, however, can be clearly distinguished from those of the present case.

14 The action brought in the case which gave rise to the Coöperatieve order, paragraph 9 above, was directed against a decision of the Commission declaring that the subsidies granted by a Member State to 450 service stations were not compatible with the common market and ordering recovery of the aid already granted. In paragraph 16 of that order, the Court held that the interest of the applicant for leave to intervene was only in 'the submissions of the applicants in the main action being upheld ... in so far as the partial annulment of the Decision which that would entail, which would call in question the merits of the findings and evaluations made in that decision in its regard, would require the Commission, under Article 233 EC, to reconsider [its] inclusion in the category of company-owned/dealer-operated service stations referred to in Articles 2 and 3 of the Decision'.

15 The present action is directed against a decision to initiate the procedure under Article 88(2) EC. The applicant seeks, principally, the annulment of the Decision in its entirety. In those circumstances, it must be held that Csepeli's interest goes beyond the interest found to be insufficient in the Coöperatieve order, paragraph 9 above.

16 Having regard to the foregoing considerations, it must be concluded that Csepeli has a direct, existing 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. Accordingly, its application to intervene must be granted.

17 Since the notice in the Official Journal required under Article 24(6) of the Rules of Procedure was published on 6 May 2006, the application to intervene was made within the period prescribed in Article 115(1) of those Rules and the rights of the intervener will be those set out in Article 116(2) to (4) of the Rules of Procedure.

The requests for confidential treatment

18 The applicant has requested confidential treatment, as regards Csepeli, for certain information in the case-file.

19 At this stage, communication to Csepeli of the documents served on the parties must be limited to the non-confidential versions produced by the applicant. A decision on whether the request for confidentiality is justified will, if necessary, be taken at a later stage in the light of any objections or observations submitted in that regard.

Costs

20 Article 87(1) of the Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. Since the present order does not close the proceedings with regard to Csepeli, it is appropriate to reserve the costs.

On those grounds,

THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE

hereby orders:

1. Csepeli Áramtermelő kft is granted leave to intervene in Case T-80/06 in support of the form of order sought by the applicant, Budapesti Erőmű 'Zártkörűen Működő Részvénytársaság'.

2. The Registrar shall communicate to the intervener the non-confidential version of every document served on the parties.

3. A period shall be prescribed within which the intervener may submit any observations on the request for confidential treatment. The decision on whether that request is justified is reserved.

4. A period shall be prescribed within which the intervener may submit a statement in intervention, without prejudice to the intervener's right to supplement that statement if necessary at a later stage, following a decision on whether the request for confidential treatment is justified.

5. Costs are reserved.

Luxembourg, 11 March 2008.

Registrar President

* Language of the case: English.

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