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

ORDER OF THE PRESIDENT OF THE COURT

5 September 2019 (*)

(Appeal — Intervention — Interest in the result of the case — Admission)

Case C‑57/19 P

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 January 2019,

European Commission, represented by É. Gippini Fournier and P. Němečková, acting as Agents,

appellant,

supported by:

Republic of Poland, represented by B. Majczyna, acting as Agent,

intervener in the appeal,

the other parties to the proceedings being:

Tempus Energy Ltd, established in Worcester (United Kingdom),

Tempus Energy Technology Ltd, established in Cheltenham (United Kingdom),

represented by J. Derenne and D. Vallindas, lawyers, and C. Ziegler, Rechtsanwalt,

applicants at first instance,

United Kingdom of Great Britain and Northern Ireland, represented by Z. Lavery, acting as Agent, and by G. Facenna QC and D. Mackersie, Barrister,

intervener at first instance,

THE PRESIDENT OF THE COURT

having regard to the proposal of M. Vilaras, Judge-Rapporteur,

after hearing the Advocate General, E. Tanchev,

makes the following

Order

1        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission (T‑793/14, EU:T:2018:790), by which that court annulled Commission Decision C(2014) 5083 final of 23 July 2014 not to raise objections to the aid scheme for the capacity market in the United Kingdom, on the ground that that scheme is compatible with the internal market pursuant to Article 107(3)(c) TFEU (State aid 2014/N-2) (OJ 2014 C 348, p. 5, ‘the contested decision’).

2        By document lodged at the Court Registry on 10 June 2019, Calon Energy Ltd, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 130 of the Court’s Rules of Procedure, which applies to the procedure on appeal by virtue of Article 190(1) thereof, applied for leave to intervene in the present appeal in support of the form of order sought by the Commission.

3        Calon Energy submits that, as a beneficiary of aid under the aid scheme at issue, it has a direct and existing interest in the setting aside of the judgment of the General Court of 15 November 2018, Tempus Energy and Tempus Energy Technology v Commission (T‑793/14, EU:T:2018:790), in so far as the General Court annulled the contested decision approving a measure that was favourable to it.

4        The Commission considers that Calon Energy has an interest in the result of the case and that there is nothing to preclude its intervention in the case. Tempus Energy Ltd and Tempus Energy Technology Ltd, as well as the United Kingdom, have indicated that they have no observations to submit on the application to intervene.

 The application to intervene

5        As provided in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States and such institutions, may intervene in that case.

6        According to the Court’s settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct and existing interest in the ruling on the form 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 or order (order of the President of the Court of 7 March 2019, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission, C‑572/18 P, not published, EU:C:2019:188, paragraph 5 and the case-law cited).

7        In that regard, it is necessary to ascertain whether the applicant for leave to intervene is directly affected by a decision such as the contested decision and whether his interest in the result of the case is established. Generally, an interest in the result of the case can be considered to be sufficiently direct only if that result is likely to alter the legal position of the party applying for leave to intervene (order of the President of the Court of 7 March 2019, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission, C‑572/18 P, not published, EU:C:2019:188, paragraph 6 and the case-law cited).

8        In the present case, it should be noted that Calon Energy’s capacity as a beneficiary of the aid scheme covered by the contested decision was not contested by any of the main parties.

9        Since the ruling on the Commission’s appeal is likely to have a direct effect on the legal status of the aid granted to Calon Energy, that capacity is sufficient, in itself, for it to be concluded that Calon Energy has established 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 of the European Union.

10      Consequently, Calon Energy’s application for leave to intervene in support of the form of order sought by the Commission must be granted.

11      As regards the procedural rights of the intervener, it should be noted that Calon Energy’s application for leave to intervene was submitted within the period of one month laid down in Article 190(2) of the Court’s Rules of Procedure, with the result that it is entitled to receive a copy of every procedural document served on the parties, in accordance with Article 131(4) of those rules, read in conjunction with Article 190(1) thereof, and in the absence of any request by those parties seeking to have certain items excluded when those documents are served.

 Costs

12      Under Article 137 of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, a decision as to costs is to be given in the judgment or order which closes the proceedings.

13      In the present case, as Calon Energy’s application for leave to intervene has been granted, the costs relating to its intervention must be reserved.

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

1.      Calon Energy Ltd is granted leave to intervene in Case C‑57/19 P in support of the form of order sought by the European Commission.

2.      A period shall be determined within which Calon Energy Ltd may submit a statement in intervention.

3.      The Registrar shall ensure that a copy of all procedural documents in the case is served on Calon Energy Ltd.

4.      The costs are reserved.

Luxembourg, 5 September 2019.

*      Language of the case: English.

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