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

ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

6 May 2019 (*)

(Competition — Concentrations of undertakings — Intervention)

In Case T‑691/18,

KPN BV, established in Rotterdam (Netherlands), represented by P. van Ginneken and G. Béquet, lawyers,

applicant,

v

European Commission, represented by H. van Vliet, G. Conte, J. Szczodrowski and F. van Schaik, acting as Agents,

defendant,

supported by

VodafoneZiggo Group Holding BV, established in Amsterdam (Netherlands),

Vodafone Group plc, established in Newbury (United Kingdom),

and

Liberty Global Europe Holding BV, established in Amsterdam,

represented by W. Knibbeler, E. Raedts and A. Pliego Selie, lawyers,

interveners,

APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision C(2018) 3569 final of 30 May 2018 declaring the concentration involving the acquisition by Liberty Global plc of sole control over Ziggo NV to be compatible with the internal market and the EEA Agreement (Case COMP/M.7000 — Liberty Global/Ziggo) (OJ 2018, C 327, p. 1),

makes the following

Order

1        By application lodged at the Registry of the General Court on 22 November 2018, the applicant, KPN BV, brought an action based on Article 263 TFEU for the annulment of Commission Decision C(2018) 3569 final of 30 May 2018 declaring the concentration involving the acquisition by Liberty Global plc of sole control over Ziggo NV to be compatible with the internal market and the EEA Agreement (Case COMP/M.7000 — Liberty Global/Ziggo) (OJ 2018, C 327, p. 1) (‘the contested decision’).

2        The Commission contends that the application should be dismissed and the applicant ordered to pay the costs.

3        By document lodged at the Court Registry on 6 February 2019, Eredivisie Media & Marketing CV (‘the applicant to intervene’) sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

4        By letter of 19 February 2019, the application to intervene was notified to the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.

5        By document lodged at the Court Registry on 8 March 2019, the applicant raised objections to the application to intervene.

6        By document lodged at the Court Registry on 14 March 2019, the Commission stated that it had no comments on the application to intervene.

  Law

 Arguments of the parties

7        As a preliminary point, the applicant to intervene notes that it is the owner of the channel Fox Sports. It accordingly claims to have a direct and present 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.

8        First, it has an interest in the forthcoming judgment as its legal and economic position will be affected if the argument that the Commission committed a manifest error of assessment in refusing to consider that each Premium Pay TV sports channels Ziggo Sport Totaal and Fox Sports constitute separate markets is accepted. In that case, Fox Sports would be regarded as holding a dominant position.

9        Second, it argues that the result of the present case may have an effect on its legal and economic situation due to the existence of ongoing judicial proceedings in the Netherlands between the applicant and the applicant to intervene, which raises the question of the alleged must-have nature of the content broadcast on Fox Sports.

10      Third, the applicant to intervene notes that it actively participated in the administrative procedure resulting in the contested decision, in particular by submitting observations that were taken into account in that decision.

11      Fourth, Fox Sports is a close competitor of Ziggo Sport Totaal. Any assessment of the position of Ziggo Sport Totaal will therefore affect Fox Sports.

12      The applicant disputes the arguments of the applicant to intervene.

13      First, it considers that the applicant to intervene has no direct interest in the result of the case as it has no interest in the operative part of the judgment to be rendered. Indeed, it is apparent from its pleadings that its interest concerns only the reasoning of the judgment to be rendered and the pleas and arguments put forward in this context.

14      Second, the applicant observes that the applicant to intervene is a competitor of Ziggo Sport Totaal. Therefore, even if it might have an interest in the annulment of the contested decision in so far as it authorises the creation of a larger competitor, it does not have a clear interest in supporting such a concentration.

15      Third, the applicant to intervene has no interest in intervening simply on account of the similarities between its situation and that of the parties to the concentration. The applicant argues that the position of the applicant to intervene will not be directly affected by the judgment to be delivered. In any event, the position of the parties to the concentration and that of the applicant to intervene is different.

16      Last, it considers that the fact that the applicant to intervene is involved in legal proceedings concerning the applicant in the Netherlands does not establish the existence of a direct interest in the result of the present case. The national legal proceedings concerned different parties and different facts in a different context.

 Assessment of the President

17      Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that statute, any person establishing an interest in the result of a case other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.

18      It follows from the case-law that the concept of an interest in the result of the 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 in law or arguments put forward. The expression ‘result’ is to be understood as meaning the operative part of the judgment to be rendered (see, to that effect, order of the President of the Court of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 5, and order of 14 December 2010, Huvis v Council, T‑536/08, not published, EU:T:2010:513, paragraph 13).

19      It is apparent from the case-law that it is necessary to draw a clear distinction 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 specifically referred to in that act (see, to that effect, order of 16 December 2009, Alpiq Csepel v Commission, T‑370/08, not published, EU:T:2009:517, paragraph 12).

20      In principle, an interest in the result of the case can be regarded as sufficiently direct only in so far as that result is such as to change the legal position of the applicant seeking leave to intervene (see order of the President of the Court of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 6 and the case-law cited).

21      However, an economic operator does not have a direct interest to intervene in a case to which another economic operator in a similar situation is a party and which could give rise to a judgment whose grounds might influence the manner in which the Union institution at issue would be likely to assess the situation, moreover different, of the applicant for leave to intervene (see, to that effect, order of 7 March 1997, Dorsch Consult v Council and Commission, T‑184/95, EU:T:1997:30, paragraph 19).

22      In the present case, it should be observed that the applicant to intervene is a competitor of the parties to the concentration in the market for the wholesale supply of premium pay TV sports channels, where it is active through its channel Fox Sports. It is apparent from the submissions that the main reason for the application to intervene in support of the Commission, aimed at defending the legality of the contested decision which approves the concentration proposed by its competitor, is that the applicant to intervene wishes to avoid a decision finding that the relevant market is further segmented. In its view, such further segmentation could lead to the conclusion that it holds a dominant position on the relevant market, with all the possible consequences that might ensue.

23      As has been stated in paragraph 18 above, the concept of an interest in the result of the case must be understood as 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 by the parties. In view of the fact that the purpose of the interest on which the applicant to intervene relies is the rejection of the applicant’s arguments relating to the definition of the relevant market, it must be considered that it has not established a direct interest in the result of the case. Indeed, an interest such as that invoked by the applicant to intervene is rather an indirect interest arising from the possible similarity of the situations at issue, which, moreover, is disputed by the applicant.

24      Even if the contested decision were annulled by the judgment to be rendered because of errors relating to the definition of the relevant market, it is difficult to see what would be the direct, existing effect that that annulment would in itself have on the applicant to intervene. The possible adoption of another decision by the Commission capable of affecting the interests of the applicant to intervene would constitute, at most, an indirect and potential interest.

25      Moreover, if the Commission were to adopt a decision based on Article 102 TFEU concerning the applicant to intervene, it goes without saying that the latter could put forward its arguments in the action for annulment that it would be able to bring before the Court against such a decision.

26      Consequently, the applicant’s application to intervene must be dismissed. None of the arguments put forward by the applicant to intervene is capable of undermining that conclusion.

27      First, as regards the existence of legal proceedings in the Netherlands relating to a contract between the applicant to intervene and the applicant for the distribution of Fox Sports, it is sufficient to point out that those legal proceedings are separate and have a different object from that of the present dispute, which cannot directly have any effect on those legal proceedings.

28      Second, as regards the participation of the applicant to intervene in the procedure which resulted in the contested decision, it should be noted that such participation is not sufficient, in and of itself, for establishing that it has a direct, existing interest in the result of the case (order of 6 April 2017, Valencia Club de Fútbol v Commission, T‑732/16 R, not published, EU:T:2017:272, paragraph 10).

29      Third, it is also necessary to reject the argument that, in view of the fact that Fox Sports and Ziggo Sport Totaal are very close competitors, any assessment of the competitive position of Ziggo Sport Totaal would also affect Fox Sports and thus the applicant to intervene. In that regard, it is sufficient to recall that the contested decision is limited to authorising the concentration notified by parties other than the applicant to intervene. Therefore, the effect of that decision is to permit the envisaged concentration, without however directly affecting the legal position of the applicant to intervene, which is not a party to that concentration. Furthermore, as the applicant submits, it must be recalled that, in the present case, the applicant to intervene maintains the legality of a concentration to which it is not a party, instead of seeking the annulment of a decision authorising a concentration between its competitors.

30      In the light of the foregoing, it is necessary to reject the application to intervene.

 Costs

31      Under Article 133 of the Rules of Procedure, a decision as to costs shall be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings as far as the applicant to intervene is concerned, a decision should be made on the costs relating to its application.

32      Under 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 to intervene to bear their own costs.

On those grounds,

THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      The application to intervene is dismissed.

2.      Eredivisie Media & Marketing CV, KPN BV and the European Commission shall bear their own costs relating to the application to intervene.

Luxembourg, 6 May 2019.

*      Language of the case: English.

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