Language of document : ECLI:EU:T:2015:530

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, to both 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 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 the reduction of the fine which was 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 2 October 2014, Prysmian SpA and Prysmian Cavi e Sistemi Srl sought leave to intervene in the present case in support of the form of order sought by the Commission.

7        By letter of 14 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 20 October 2014, the Commission raised no objections to that intervention.

9        By document lodged at the Court Registry on 4 November 2014, the applicant requested the Court to reject the application to intervene and to order Prysmian SpA and Prysmian Cavi e Sistemi Srl 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 Prysmian SpA and Prysmian Cavi e Sistemi Srl, if their 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 information in Annex B.9 to the defence be excluded from the file communicated to Prysmian SpA and Prysmian Cavi e Sistemi Srl, if their intervention were allowed. To that end, the Commission produced a non-confidential version of the documents concerned.

12      By 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 Prysmian SpA and Prysmian Cavi e Sistemi Srl, if their intervention were allowed. To that end, the applicant produced a non-confidential version of the documents concerned.

 Law

 Arguments of the parties

13      In order to establish an interest in the result of the case, Prysmian SpA and Prysmian Cavi e Sistemi Srl essentially point out, first of all, that, since Prysmian SpA was subject to the sole control of the applicant throughout the entire period of the alleged infringement, the Commission for that reason presumed that the applicant had exercised decisive influence over it. Next, Prysmian SpA and Prysmian Cavi e Sistemi Srl observe that the applicant seeks the annulment, in whole or in part, of Articles 1, 2, 3 and 4 of the contested decision in so far as they concern the applicant, and/or the reduction of the fine which was imposed on the applicant jointly and severally with Prysmian SpA and Prysmian Cavi e Sistemi Srl pursuant to Article 2(f) of that decision. Lastly, Prysmian SpA and Prysmian Cavi e Sistemi Srl submit that all of the pleas in the application are focused on the alleged erroneous or unlawful application by the Commission of the principles concerning the attribution of liability for the anticompetitive conduct of subsidiaries. In the light of those factors, Prysmian SpA and Prysmian Cavi e Sistemi Srl claim that they have a direct and existing interest in intervening in support of the form of order sought by the Commission, in so far as it seeks the dismissal of the applicant’s arguments concerning the wrong attribution of liability, and that a decision on the applicant’s claims would directly affect their legal and economic situation, in so far as they could be held solely liable for the alleged infringement and, consequently, for payment of the related fine.

14      The applicant contends that Prysmian SpA and Prysmian Cavi e Sistemi Srl cannot be considered to have an interest in intervening in the present case because, from the outset, the operative part of the judgment which may be delivered in the case cannot directly affect those two companies. Next, the applicant claims that the interest of those companies is only indirect and hypothetical, since the Commission could in any event, even if the applicant’s action were to be dismissed, turn to those two companies alone for the purpose of payment of the fine. Moreover, the applicant considers that the outcome of the present case may affect the two companies referred to above only under certain hypothetical scenarios that ultimately depend on the outcome of their own action in Case T‑475/14. Finally, the applicant takes the view that, contrary to the assertions made by those two companies, the recourse action which they could bring against the applicant does not in any way depend upon the outcome of the present case.

 Assessment of the President

15      The application to intervene was submitted in accordance with Article 115 of the Rules of Procedure.

16      Under the second paragraph of Article 40 of the Statute, 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.

17      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 intervener is directly affected by the contested decision and whether his interest in the result of the case is established (order of 25 February 2003 in BASF v Commission, T‑15/02, ECR, EU:T:2003:38, paragraph 26).

18      In the present case, it follows from the contested decision that the applicant was considered by the Commission to be liable for the infringement referred to in paragraph 1 of that decision by reason of the decisive influence that it exercised over Prysmian SpA and Prysmian Cavi e Sistemi Srl and for that reason the Commission imposed on it, jointly and severally with those two companies, a fine of EUR 37 303 000 (Article 2(f) of the contested decision). It is also apparent that, in its action, the applicant seeks, principally, annulment of the contested decision in so far as that decision concerns it.

19      If the Court were to grant the applicant’s form of order seeking annulment of the contested decision in so far as that decision concerns it, Prysmian SpA and Prysmian Cavi e Sistemi Srl could be solely liable to pay the fine of EUR 37 303 000 owing to the Commission. Accordingly, those undertakings have established an interest in the result of the case and may intervene in support of the form of order sought by the Commission, on condition that they limit their intervention to the rejection of the abovementioned form of order sought by the applicant, the success of which would have the result of eliminating the applicant’s contribution to the payment of the abovementioned fine (see, to that effect, order of 28 February 2011 in HIT Groep v Commission, T‑436/10, EU:T:2011:62, paragraph 11).

20      It follows from the foregoing that Prysmian SpA and Prysmian Cavi e Sistemi Srl have established their interest in the result of the case and must therefore be granted leave to intervene.

21      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 25 August 2014, the application to intervene was submitted within the period prescribed in Article 115(1) of the Rules of Procedure and the interveners’ rights will be those provided for in Article 116(2) to (4) of those rules.

22      However, the applicant and the Commission have requested, in accordance with Article 116(2) of the Rules of Procedure, that certain confidential material in the application and the annexes thereto, and also in the defence, be omitted from the communication to the interveners and, for the purposes of that communication, they produced non-confidential versions of the documents concerned.

23      At the present stage, the communication to the interveners of the pleadings served and, if necessary, to be served on the parties must therefore be limited to a non-confidential version. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted on that issue.

On those grounds,

THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      Prysmian SpA and Prysmian Cavi e Sistemi Srl are granted leave to intervene in Case T‑419/14 in support of the form of order sought by the European Commission.

2.      The Registrar shall send to Prysmian SpA and Prysmian Cavi e Sistemi Srl a non-confidential version of all pleadings served on the parties.

3.      A period shall be prescribed within which the interveners may submit any observations that they may have on the requests for confidential treatment. The decision on the merits of that request is reserved.

4.      A period shall be prescribed within which the interveners may submit a statement in intervention, without prejudice to the possibility of supplementing it later if necessary, further to a decision on the merits of the request for confidential treatment.

5.      The costs are reserved.

Luxembourg, 25 June 2015.

E. Coulon

 

      D. Gratsias

Registrar

 

      President


* Language of the case: English.