Language of document : ECLI:EU:T:2015:523

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

25 June 2015 (*)

(Intervention — Confidentiality)

In Case T‑419/14,

The Goldman Sachs Group, Inc, established in New York (United States), represented by W. Deselaers, J. Koponen and A. Mangiaracina, lawyers,

applicant,

v

European Commission, represented by J. Norris-Usher, C. Giolito, H. van Vliet and L. Malferrari, acting as Agents,

defendant,

APPLICATION for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables)

THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

makes the following

Order

 Background

1        By Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’), the Commission found that a number of undertakings, including the applicant, The Goldman Sachs Group Inc., and the companies Prysmian SpA and Prysmian Cavi e Sistemi Srl, had infringed Article 101 TFEU and Article 53 EEA by participating in a cartel in the (extra) high voltage underground and/or submarine power cables sector (Article 1 of the contested decision).

2        In that decision, the Commission also imposed, in respect of that infringement, various fines on the undertakings referred to in Article 1 of that decision, including, on a joint and several basis, a fine of EUR 37 303 000 on the applicant, Prysmian SpA and Prysmian Cavi e Sistemi Srl (Article 2(f) of the contested decision). In addition, the Commission ordered the undertakings referred to in Article 1 of the contested decision, including the applicant, Prysmian SpA and Prysmian Cavi e Sistemi Srl, immediately to bring to an end the infringement, in so far as they had not already done so, and to refrain from any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect (Article 3 of the contested decision). That decision was addressed, inter alia, both to the applicant and to Prysmian SpA and Prysmian Cavi e Sistemi Srl (Article 4 of the contested decision).

3        It is apparent from the grounds of the contested decision that the Commission found that Prysmian Cavi e Sistemi Srl had participated directly in the abovementioned cartel between 18 February 1999 and 28 January 2009 (recital 729 of the contested decision). Moreover, the Commission took the view that both the applicant and Prysmian SpA had to be held jointly and severally liable with Prysmian Cavi e Sistemi Srl for that infringement, on the ground, essentially, that, during the period from 29 July 2005 to 28 January 2009, they had exercised decisive influence over the conduct of Prysmian Cavi e Sistemi Srl on the market (recitals 782 to 784 of the contested decision).

 Procedure

4        By application lodged at the Court Registry on 12 June 2014, the applicant brought an action seeking the complete or partial annulment of Articles 1, 2, 3 and 4 of the contested decision in so far as that decision concerns it and, in the alternative, seeking a reduction of the fine imposed on it pursuant to Article 2(f) of the contested decision and requesting that the Commission be ordered to pay the costs.

5        The Commission has contended that the action should be dismissed and the applicant ordered to pay the costs.

6        By document lodged at the Court Registry on 11 October 2014, the European Private Equity and Venture Capital Association (‘EVCA’) sought leave to intervene in the present case in support of the form of order sought by the applicant.

7        By letter of 21 October 2014, the application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.

8        By document lodged at the Court Registry on 10 November 2014, the Commission requested the Court to reject EVCA’s application to intervene.

9        By document lodged at the Court Registry on 13 November 2014, the applicant requested the Court to grant EVCA’s application to intervene and to order the Commission to pay the costs relating to that application.

10      By separate document lodged at the Registry on the same day, the applicant requested that, in accordance with Article 116(2) of the Rules of Procedure, certain documents and information in the application and the annexes thereto be excluded from the file communicated to EVCA, if its intervention were allowed. To that end, the applicant produced a non-confidential version of the documents concerned.

11      By document lodged at the Registry on 18 December 2014, the Commission requested that, in accordance with Article 116(2) of the Rules of Procedure, certain documents and information in the defence and the annexes thereto be excluded from the file communicated to EVCA, if its intervention were allowed. To that end, the Commission produced a non-confidential version of the documents concerned.

12      By separate document lodged at the Registry on 29 January 2015, the applicant requested that, in accordance with Article 116(2) of the Rules of Procedure, certain documents and information in the defence and the annexes thereto be excluded from the file communicated to EVCA, if its intervention were allowed. To that end, the applicant produced a non-confidential version of the documents concerned.

 Law

 Arguments of the parties

13      EVCA, supported in all essential respects by the applicant, submits that it satisfies the four conditions laid down by the case-law to which the right to intervene granted to representative associations is subject and that it must therefore be granted leave to intervene in the present case.

14      First, EVCA states that it represents more than 700 undertakings in the sector concerned, namely that of private equity firms. It also states that, in 2013, EVCA members represented 60% of the EUR 545 billion in assets under management of all private equity and venture capital firms in Europe.

15      Secondly, EVCA submits that, pursuant to Article 3 of its bylaws, its aim is to ensure the promotion of the long-term interests of the private equity and venture capital industry in Europe and to encourage the promotion, formation, development and use of capital markets and finance structures suited to the needs of investments and their beneficiaries. In addition, EVCA states that Article 3 of its bylaws specifically provides that it is to represent and protect the private equity and venture capital industry.

16      Thirdly, EVCA contends that the contested decision raises an issue of principle concerning the parental liability doctrine in EU competition law and its application to investments made by private equity and venture capital firms. EVCA submits that the case also deals with the circumstances in which private equity and venture capital firms may be deemed to exercise decisive influence over portfolio companies in which such investments have been made.

17      Fourthly, EVCA argues that its members are likely to be affected to an appreciable extent by the judgment to be delivered in the present case. According to EVCA, the outcome of the present case and the appreciation by the Court of those principles are therefore of direct concern to private equity and venture capital funds. Moreover, EVCA asserts that, since it has a global picture in the field concerned of capital and investment, it is able to provide relevant information on that field.

18      The Commission disputes those arguments. Principally, it takes the view that EVCA fails to satisfy the first of the conditions laid down by the case-law in order to be granted the right to intervene in the present case, which is sufficient for its application to be rejected. The Commission contends that the private equity and venture capital sector, in which EVCA claims to be the representative of an appreciable number of undertakings, is not the sector concerned in the present case. By contrast, according to the Commission, to accept that EVCA has an interest in intervening in the present case would amount to granting a right of intervention to a representative association of the private equity and venture capital sector in almost all proceedings, given the presence of private investors in all sectors. In the alternative, the Commission submits that the third and fourth of the abovementioned conditions are similarly not satisfied by EVCA. According to the Commission, on the one hand, the present case does not raise any issues of principle affecting the functioning of the private equity and venture capital sector and, on the other hand, the effect of the Court’s judgment in the present case on EVCA’s members would be purely hypothetical, since the fact that the applicant is active in the sector referred to above is not material to its liability for the infringement at issue.

 Assessment of the President

19      As a preliminary point, it should be noted that the application to intervene was submitted in accordance with Article 115(1) of the Rules of Procedure.

20      Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, except in cases between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene. An application to intervene is to be limited to supporting the form of order sought by one of the parties.

21      It is settled case-law that the concept of an interest in the result of the case 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 put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the prospective intervener is directly affected by the contested decision and whether his interest in the result of the case is established (see, to that effect, order of 25 February 2003 in BASF v Commission, T‑15/02, ECR, EU:T:2003:38, paragraph 26 and the case-law cited).

22      In addition, it is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific act the annulment of which 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 (see order in BASF v Commission, paragraph 21 above, EU:T:2003:38, paragraph 27 and the case-law cited).

23      It is established case-law that intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members. More specifically, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned, if its objects include that of protecting its members’ interests, and if the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given (order of 20 May 2014 in Lundbeck v Commission, T‑472/13, EU:T:2014:354, paragraph 23 and the case-law cited).

24      In the present case, the Court observes, first, that, as the Commission correctly submits, the sector concerned by the contested decision is the (extra) high voltage underground and submarine cables sector (recital 1 of the contested decision). In particular, the collusive practices found by the Commission cover all types of underground power cables of 110 kV and above and submarine power cables of 33 kV and above, including all products, works and services sold to the customer in the context of power cable projects (recital 13 of the contested decision). It must also be stated that the contested decision concerns only undertakings active in the power cables sector and that it does not contain any determination of the validity, in the light of Article 101 TFEU and Article 53 EEA, of agreements or understandings which might be entered into in other sectors.

25      Secondly, it should be noted that EVCA does not claim to represent undertakings in the field of (extra) high voltage underground and/or submarine power cables. EVCA states that it is an association the members of which are private equity and venture capital firms. Moreover, EVCA explains that its activity is aimed at the promotion of the long-term interests of the private equity and venture capital industry in Europe and the formation and development of capital markets and financial structures suited to the needs of investments and their beneficiaries.

26      Consequently, in those circumstances, EVCA cannot claim that it constitutes an association representative of an appreciable number of operators active in the sector concerned by the contested decision, as required by the case-law cited in paragraph 23 above.

27      The fact that EVCA may possibly represent certain undertakings active in the field of power cables, such as Goldman Sachs, cannot suffice for it to be recognised as having a right to intervene in the present action (see, to that effect, order in Lundbeck v Commission, paragraph 23 above, EU:T:2014:354, paragraph 27).

28      It should be added that, as the Court has already observed, the adoption of a broad interpretation of the right of associations to intervene, which is intended to facilitate assessment of the context of cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure, is not, however, intended to permit the multiplication of interventions of non-representative associations which have only an indirect and hypothetical interest in the result of the case (see order in Lundbeck v Commission, paragraph 23 above, EU:T:2014:354, paragraph 29).

29      Lastly, it must be held, reflecting the view taken by the Commission, that, if the Court were to accept that an association representing private equity investors and venture capitalists has an interest in intervening in a case such as the present, this would have the consequence that that association could intervene in the majority of proceedings before the Court, since, in the current state of affairs, the majority of economic sectors, including those at European level, are based on private investor capital sharing.

30      In view of all of the foregoing considerations, the application to intervene submitted by EVCA must be rejected.

 Costs

31      Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings as far as EVCA is concerned, a decision must be made on the costs relating to its application to intervene.

32      Under Article 87(2) of the Rules of Procedure, 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 present case, in the absence of claims seeking an order for costs against EVCA, each party must be ordered to bear its own costs occasioned by EVCA’s application to intervene.

On those grounds,

THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      The application to intervene brought by the European Private Equity and Venture Capital Association is rejected.

2.      Each party shall bear its own costs.

Luxembourg, 25 June 2015.

E. Coulon

 

      D. Gratsias

Registrar

 

      President


* Language of the case: English.