ORDER OF THE GENERAL COURT (Fourth Chamber)
19 January 2012 (*)
(Intervention – Rules on languages – EFTA Surveillance Authority – Confidential treatment)
In Case T‑289/11,
Deutsche Bahn AG, established in Berlin (Germany),
DB Mobility Logistics AG, established in Berlin,
DB Energie GmbH, established in Frankfurt am Main (Germany),
DB Schenker Rail GmbH, established in Mainz (Germany),
DB Schenker Rail Deutschland AG, established in Mainz,
represented by W. Deselaers, O. Mross and J. Brückner, lawyers,
applicants,
v
European Commission, represented by L. Malferrari, N. von Lingen and R. Sauer, acting as Agents,
defendant,
ACTION for annulment of Commission Decision C (2011) 1774 of 14 March 2011 ordering Deutsche Bahn AG, DB Mobility Logistics AG, DB Energie GmbH, DB Schenker Rail GmbH and DB Schenker Rail Deutschland AG to submit to an inspection in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (Cases COMP/39.678 and COMP/39.731), made in the context of proceedings under Article 102 TFEU and Article 54 of the EEA Agreement concerning the rail transport sector and additional services,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
1 By application lodged at the Registry of the General Court on 7 June 2011, the applicants, Deutsche Bahn AG, DB Mobility Logistics AG, DB Energie GmbH, DB Schenker Rail GmbH and DB Schenker Rail Deutschland AG brought an action seeking, first, the annulment of Commission Decision C (2011) 1774 of 14 March 2011 ordering them to submit to an inspection in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (Cases COMP/39.678 and COMP/39.731), second, the annulment of all measures taken as a result of the inspection which took place on the basis of that decision and, third, an order that the European Commission return all the copies of documents made during that inspection.
2 By document lodged at the Registry of the General Court on 13 September 2011, the European Free Trade Association (EFTA) Surveillance Authority (‘the EFTA Authority’) applied for leave to intervene in the present case in support of the form of order sought by the Commission, pursuant to Article 115 of the Rules of Procedure of the General Court and the third 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. In addition, it applied, under the fifth subparagraph of Article 35(3) of the Rules of Procedure, for authorisation to use English as the language of the case during both the written and oral procedures.
3 The application for leave to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure.
4 By letters of 21 and 24 October 2010, the applicants and the Commission stated that they had no observations to make on the EFTA Authority’s application for leave to intervene. They did, however, submit an application for confidential treatment of certain elements of the case-file vis-à-vis the EFTA Authority.
5 The President of the Fourth Chamber referred the application for leave to intervene to the General Court (Fourth Chamber), pursuant to the third subparagraph of Article 116(1) of the Rules of Procedure.
Application for leave to intervene
6 Under the third paragraph of Article 40 of the Statute of the Court of Justice, the States, other than the Member States, which are parties to the Agreement on the European Economic Area (OJ 1994 L 1, p. 3), and also the EFTA Authority, may, without prejudice to the second paragraph of that article, intervene in cases before the General Court where one of the fields of application of that Agreement is concerned.
7 According to that second paragraph, natural or legal persons, including the EFTA Authority, may intervene in a case before the General Court if they can establish an interest in the result of that case, with the exception of cases between Member States, between EU institutions or between EU institutions and Member States.
8 In this instance, first, the present case, as a dispute between an undertaking and an EU institution, is not included in the types of case in respect of which natural or legal persons are expressly excluded from intervening under that second paragraph.
9 Second, the third paragraph of Article 40 of the Statute states that under some circumstances, apart from those excluded by the second paragraph of that article, the States, other than the Member States, which are parties to the EEA Agreement, and also the EFTA Authority, have a presumed interest in the result of a case, namely where that case concerns one of the fields of application of that Agreement (see, by analogy, the order of the President of the Court of Justice of 15 July 2010 in Case C‑493/09 Commission v Portugal, not published in the ECR, paragraph 11).
10 In that regard, first, the EFTA Authority notes that the case concerns, inter alia, the interpretation of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (OJ 2003 L 1, p. 1), of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), and of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’). Second, it notes that the control of anti-competitive practices falls within one of the fields of application of the EEA Agreement, since the provisions of Articles 53 and 54 of the EEA Agreement correspond, in essence, to those of Articles 101 and 102 TFEU, and since Article 55 of the EEA Agreement gives the EFTA Authority the responsibility of examining anti-competitive practices in a manner identical to examinations carried out by the Commission within the European Union. In the same way, Chapter II of Protocol 4 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice corresponds, in essence, to Regulation No 1/2003. The EFTA Authority adds that it is clear from the case-law of the EFTA Court that the stipulations of the EEA Agreement must be interpreted in the light of fundamental rights, of which the ECHR and the case-law of the European Court of Human Rights are important sources of interpretation.
11 Those arguments must be upheld.
12 Accordingly, the EFTA Authority’s application for leave to intervene must be granted.
13 Since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 13 August 2011, the application for leave to intervene has been submitted within the time-limit prescribed by Article 115(1) of those Rules and the rights of the intervener will be those recognised by Article 116(2), (3) and (4) of those Rules.
14 Concerning the applications for confidential treatment, the procedural documents served will, at this stage, include only the non‑confidential versions submitted by the parties. A decision on the merits of the applications for confidential treatment will, should the need arise, be made subsequently, in the light of any objections or observations which may be submitted in that regard.
Application for derogation from the rules on languages
15 Under the fifth subparagraph of Article 35(3) of the Rules of Procedure, the States, other than the Member States, which are parties to the EEA Agreement, and also the EFTA Authority, may be authorised to use one of the languages mentioned in paragraph 1 of that article, other than the language of the case, when they intervene in a case before the General Court. That provision is to apply both to written statements and oral addresses.
16 In the present case, English, the use of which is requested by the EFTA Authority, is indeed mentioned in Article 35(1) of the Rules of Procedure.
17 In addition, the other parties have submitted no observations regarding the EFTA Authority’s application for derogation from the rules on languages.
18 Under those circumstances, the EFTA Authority must be authorised to use English in the written and oral procedures.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. The European Free Trade Association (EFTA) Surveillance Authority is granted leave to intervene in Case T‑289/11 in support of the form of order sought by the European Commission.
2. The non-confidential versions of all the procedural documents shall be served on the EFTA Surveillance Authority by the Registrar.
3. The EFTA Surveillance Authority shall be set a time-limit for submitting any observations it may have regarding the applications for confidential treatment. The decision on the merits of those applications is reserved.
4. The EFTA Surveillance Authority shall be set a time-limit for submitting a statement in intervention, without prejudice to the possibility of supplementing it later, should the need arise, in the light of a decision on the merits of the applications for confidential treatment.
5. The EFTA Surveillance Authority is authorised to use English in the written and oral procedures.
6. The costs are reserved.
Luxembourg, 19 January 2012.