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

ORDER OF THE PRESIDENT OF THE COURT

28 January 2020 (*)

(Appeal — Intervention — No interest in the result of the case)

In Case C‑689/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 September 2019,

VodafoneZiggo Group BV, established in Utrecht (Netherlands), represented by W. Knibbeler, A. Pliego Selie and B. Verheijen, advocaten,

appellant,

the other party to the proceedings being:

European Commission, represented by L. Nicolae and G. Braun, acting as Agents,

defendant at first instance,

THE PRESIDENT OF THE COURT,

having regard to the proposal of I. Jarukaitis, Judge-Rapporteur,

after hearing the Advocate General, G. Pitruzzella,

makes the following

Order

1        By its appeal, VodafoneZiggo Group BV (‘VodafoneZiggo’) seeks to have set aside the order of the General Court of the European Union of 9 July 2019, VodafoneZiggo Group v Commission (T‑660/18, EU:T:2019:546) (‘the order under appeal’), by which that court dismissed as inadmissible its action for annulment of the letter of 30 August 2018 from the European Commission to the Autoriteit Consument en Markt (Consumers and Markets Authority, Netherlands, ‘the ACM’) containing its comments on a draft measure made accessible by the ACM relating to the market for wholesale provision of access at a fixed location in the Netherlands (Cases NL/2018/2099 and NL/2018/2010) (C(2018) 5848 final) (‘the letter at issue’).

2        By document lodged at the Court Registry on 11 November 2019, T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV (together ‘TMNL’) applied for leave to intervene in the present case in support of the form of order sought by the Commission.

3        That application was made on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Articles 129 and 130 of the Rules of Procedure of the Court of Justice.

4        By letter of 29 November 2019, lodged at the Court Registry on 2 December 2019, VodafoneZiggo submitted its written observations on that application, in which it argued that the application should be dismissed on the ground that TMNL’s interest in the result of the present case is neither direct nor existing, since it relates only to the matter of the admissibility of the action for annulment which had been brought before the General Court, and requested that TMNL be ordered to pay the costs relating to that application.

5        The Commission did not lodge observations on the application to intervene.

 Application to intervene

6        Under 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.

7        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 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 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 decision which closes the proceedings (see, inter alia, orders of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, not published, EU:C:2015:135, paragraph 7 and the case-law cited, and of 13 November 2019, Commission v Italy and Fondo interbancario di tutela dei depositi, C‑425/19 P, not published, EU:C:2019:980, paragraph 10). Therefore, more specifically, it is a direct and existing interest in seeing granted the form of order sought by the party that the party applying to intervene intends to support (see order of the Vice-President of the Court of 11 July 2013, Commission v DEI, C‑553/12 P, not published, EU:C:2013:680, paragraph 7 and the case-law cited).

8        In that regard, it is appropriate, in particular, to ascertain that the party applying to intervene is directly affected by the contested measure and that his interest in the result of the case is certain. Generally, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the party applying to intervene (see, inter alia, orders of the President of the Court of 9 October 2018, PGNiG Supply & Trading v Commission, C‑117/18 P, not published, EU:C:2018:897, paragraph 6, and of 9 October 2019, Région de Bruxelles-Capitale v Commission, C‑352/19 P, not published, EU:C:2019:856, paragraph 7 and the case-law cited).

9        It should also be recalled that, according to the case-law of the Court, a party which, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas. Thus, it is by taking account, inter alia, of the subject matter of the dispute forming the basis of the appeal, as it emerges from the forms of order sought by the main parties and the pleas put forward in support of those forms of order, that the interest in the result of the case of a party applying to intervene should be assessed (order of the President of the Court of 27 February 2019, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, not published, EU:C:2019:174, paragraph 9).

10      In the present case, the appeal seeks to have set aside the order under appeal by which the General Court dismissed as inadmissible the action brought by VodafoneZiggo under Article 263 TFEU for annulment of the letter at issue on the ground that that letter has no legally binding effects capable of affecting the interests of that party by bringing about a significant change in its legal position and, consequently, does not constitute a challengeable act for the purpose of that article.

11      By the letter at issue, adopted pursuant to Article 7(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37), the Commission provided the ACM with its comments on the draft measures envisaged by that authority concerning the analysis of the market for wholesale access at a fixed location in the Netherlands. It appears from the draft of those measures that that authority concluded that two operators, one of which was VodafoneZiggo, had joint significant power in that market and proposed imposing specific regulatory obligations on them in accordance with Article 16 of the Framework Directive.

12      Following that letter, the ACM adopted on 27 September 2018 a decision on the analysis of the market for wholesale access at a fixed location in the Netherlands in which it designated two operators, one of which was VodafoneZiggo, as having joint significant power on that market and imposed specific regulatory obligations on them (‘the ACM Decision’).

13      In support of its application to intervene, TMNL submits, as a preliminary point, that, as a provider of fixed and mobile telecommunications services in the Netherlands, it is, with regard to the provision of services at a fixed location to its own customers, dependent on wholesale access services, which it currently obtains from the first of those two operators and which it also wishes to obtain from the second, VodafoneZiggo, with whom it has ongoing negotiations in that regard. It adds, first, that it is an interested party in the action brought by VodafoneZiggo against the ACM decision before the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands), in which it claims that the action should be dismissed and, second, that it has itself brought an action against that decision before that court, seeking the imposition of stricter regulatory obligations on the operators concerned.

14      TMNL submits that, in that context, it has an interest in the result of the present case, since its legal and economic situation could be directly affected by the operative part of the decision that the Court will deliver in due course. The appeal brought by VodafoneZiggo could lead to the order under appeal being set aside and, subsequently, to the annulment, in whole or in part, of the letter at issue. Moreover, it is entirely possible that such a decision of the Court would be considered a relevant element in the context of the actions pending in the Netherlands and could lead to the amendment, or even the annulment, of the ACM Decision. Such an outcome would directly undermine its interests, as the operators concerned by the ACM Decision, including VodafoneZiggo, would no longer be obliged to provide it with wholesale access services at a fixed location.

15      In addition, TMNL claims that, even assuming that an outcome granting the appeal brought by VodafoneZiggo does not directly alter the decisions that will be delivered in the disputes brought before the national court, it still has an interest in the result of the present case. Regardless of whether the Court rules only on the admissibility of the action brought before the General Court or also on the merits of the case, the granting of the appeal would certainly have the effect of prolonging the period of legal uncertainty regarding whether the ACM Decision is to remain in force, which could, for example, lead the ACM to undertake a new analysis earlier than planned with a view to adopting a new decision on wholesale access at a fixed location.

16      Moreover, TMNL argues that it has every interest in establishing legal certainty as soon as possible and, consequently, in the dismissal of the appeal, since that legal uncertainty has a negative effect on its legal and economic situation. In particular, while the case is pending, there is a risk that the regulated wholesale access services, on which TMNL depends in order to provide its own services, will be discontinued or modified. Such uncertainty undermines its ability to commit to promoting retail services based on that wholesale access or to make the necessary investments to offer attractive retail services. This would also place it at a competitive disadvantage vis-à-vis the two operators concerned, one of which is VodafoneZiggo, as these operators already offer, or are already in a position to offer, such services through their own networks.

17      In that regard, it should be pointed out that TMNL is applying to intervene in support of the form of order sought by the Commission, which claims that the Court should dismiss the appeal, and that, in accordance with the case-law referred to in paragraph 9 of this order, TMNL cannot, by that application, alter the subject matter of the dispute as defined in the forms of order sought by and pleas of the main parties. In the order under appeal, the General Court ruled only on the plea of inadmissibility raised before it by the Commission under Article 130 of the Rules of Procedure of the General Court and confined itself to examining the first ground of inadmissibility raised by the Commission, alleging that the letter under appeal did not constitute a challengeable act for the purpose of Article 263 TFEU.

18      Consequently, having regard to the subject matter of the dispute in the present appeal pending before the Court of Justice, the decision to be taken by the Court will relate solely to the question of the admissibility of the action for annulment which was examined by the General Court, and not to the question of whether or not the application for annulment of that letter is well founded. Thus, it is only if TMNL establishes that it has a direct and existing interest in the form of order sought by the Commission, in which that institution requests the dismissal of the appeal, that TMNL is entitled to intervene in the present proceedings. It should be added in that regard that, should the order under appeal be set aside by the Court of Justice, the state of the proceedings is not such as to permit a decision on the merits of the action to be given, under the first paragraph of Article 61 of the Statute of the Court of Justice, since the General Court ruled on the case under Article 130 of its Rules of Procedure without going to the substance of the case and the Commission has not, therefore, sought any form of order in respect of the merits.

19      In its arguments TMNL does not claim that it has an interest in the dismissal of the appeal on the ground that the General Court was justified in finding that the decision at issue does not constitute a challengeable act for the purpose of Article 263 TFEU, but alleges, in essence, that it has an interest in the result of the case because of the consequences for its commercial interests that a decision on the substantive issues raised by the action for annulment brought before the General Court could have.

20      In view of the fact that TMNL is seeking to intervene in support of the form of order sought by the Commission, in which the latter seeks a form of order dismissing the appeal, it should also be pointed out that if the Court grants that form of order, the dispute will be definitively settled in the manner desired by the party seeking to intervene. If, on the other hand, the order under appeal is set aside, the action will continue and will be examined on its merits before the General Court. The interest that TMNL might possibly be able to establish that it has, through its line of argument, relates to the outcome of the examination of the merits of the case, should such an examination occur, and therefore to the outcome of the case which would be pending before the General Court in such circumstances, rather than to the outcome that will be reached in the context of the present appeal proceedings (see, to that effect and by analogy, orders of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, not published, EU:C:2015:135, paragraph 11, and 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 11).

21      Furthermore, the adverse effects on TMNL’s legal and economic situation, allegedly resulting from the legal uncertainty which would follow from the fact that those appeal proceedings are pending, are of a very general nature, inherent in all judicial proceedings, and do not make it possible to establish the existence of a direct and existing interest in the ruling on the forms of order sought by the parties in the present proceedings, for the purpose of the case-law referred to in paragraphs 7 and 8 of this order (see, by analogy, order of the President of the Court of 9 October 2019, Région de Bruxelles-Capitale v Commission, C‑352/19 P, not published, EU:C:2019:856, paragraph 14). Moreover, TMNL does not establish that its intervention in the present case could accelerate the resolution of the case.

22      It follows from all the findings above that TMNL has not shown that it has 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. Its application to intervene must therefore be dismissed.

 Costs

23      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) 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 VodafoneZiggo claimed that TMNL should be ordered to pay the costs and since TMNL has been unsuccessful, TMNL must, in addition to bearing its own costs, be ordered to pay those incurred by VodafoneZiggo.

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

1.      The application to intervene submitted by T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV is dismissed.

2.      T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV, in addition to bearing their own costs, are ordered to pay those incurred by VodafoneZiggo Group BV.

Luxembourg, 28 January 2020.

*      Language of the case: English.

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