Language of document : ECLI:EU:C:2009:63

ORDER OF THE PRESIDENT OF THE COURT

5 February 2009 (*)

(Appeal – Application to intervene – Dismissal)

In Case C‑550/07 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 8 December 2007,

Akzo Nobel Chemicals Ltd, established in Hersham, Walton on Thames (United Kingdom),

Akcros Chemicals Ltd, established in Hersham, Walton on Thames,

represented by C. Swaak, advocaat, M. Mollica and M. van der Woude, avocats,

appellants,

supported by:

Ireland, represented by D. O’Hagan, acting as Agent, and D. O’Donnell SC and R. Casey, BL, with an address for service in Luxembourg,

Kingdom of the Netherlands, represented by C. Wissels, acting as Agent,

United Kingdom of Great Britain and Northern Ireland, represented by S. Behzadi Spencer, acting as Agent,

interveners in the appeal,

the other parties to the proceedings being:

Commission of the European Communities, represented by F. Castillo de la Torre and X. Lewis, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

Council of the Bars and Law Societies of the European Union (CCBE), established in Brussels (Belgium), represented by J. Flynn QC,

Algemene Raad van de Nederlandse Orde van Advocaten, established in The Hague (Netherlands), represented by O.W. Brouwer and C. Schillemans, advocaten,

European Company Lawyers’ Association (ECLA), established in Brussels (Belgium), represented by K. Nordlander, advokat, instructed by J. Temple Lang, Solicitor,

American Corporate Counsel Association (ACCA) – European Chapter, established in Paris (France), represented by G. Berrisch, Rechtsanwalt, instructed by D.W. Hull, Solicitor,

International Bar Association (IBA), established in London (United Kingdom), represented by J. Buhart and I. Michou, avocats,

interveners at first instance,

THE PRESIDENT OF THE COURT,

having regard to the proposal by R. Silva de Lapuerta, Judge-Rapporteur,

after hearing the Advocate General, J. Kokott,

makes the following

Order

1        By their appeal, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd seek to have set aside the judgment of the Court of First Instance of the European Communities in Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II-3523 in so far as the Court of First Instance rejected their claim to protection of legal professional privilege for correspondence between the general manager of Akcros Chemicals Ltd and the in-house lawyer of Akzo Nobel Chemicals Ltd.

2        By application lodged at the Court Registry on 12 March 2008, the Association of General Counsel and Company Secretaries of the FTSE 100 (‘GC 100’), a body established under English law whose principal office is in London (United Kingdom), represented by P. Goldsmith QC, applied for leave to intervene in the present appeal in support of the forms of order sought by the appellants. By document lodged on 31 March 2008, the appellants declared that they supported that application to intervene.

3        GC 100 submits that the appeal raises questions of principle that are liable to affect the interests of its members. It states that it is a ‘representative’ association whose aim is to make representations on ‘areas of policy, regulatory and legislative reform’.

4        GC 100 submits that it has particularly detailed knowledge of the manner in which legal information is communicated within major corporations and the internal mechanisms that are put in place to ensure compliance with competition law.

5        By document lodged at the Court Registry on 27 March 2008, the Commission of the European Communities objected to the application to intervene. The Commission submits, inter alia, that there is no sufficiently clear definition of the object and membership of GC 100, and that it is not clear how both are relevant to the subject-matter of the appeal. Consequently, the association can have no more than an indirect interest in the result of the case.

6        The application to intervene was submitted in accordance with Articles 93 and 123 of the Rules of Procedure and pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice.

7        Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, the right to intervene in cases before the Court is open to any person establishing an interest in the result of the case.

8        According to consistent case-law, the concept of ‘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 must be construed in the light of the actual subject-matter of the proceedings and must be a direct, present interest in the forms of order sought, not an interest in the pleas or arguments raised (see orders in Case C-76/93 P Scaramuzza v Commission [1993] ECR I-5715, paragraph 6, and Case C-155/98 P Alexopoulou v Commission [1998] ECR I‑4943, paragraphs 6 and 11).

9        The Court has also held that the interest at issue cannot be assessed in the light of abstract legal arguments that go beyond the ruling on the specific act whose annulment is sought (see, to that effect, orders in Joined Cases C‑151/97 P(I) and C-157/97 P(I) National Power and PowerGen [1997] ECR I-3491, paragraph 53, and of 6 April 2006 in Case C-130/06 P(I) An Post, paragraphs 8 and 9).

10      As regards an application to intervene submitted by a professional association, the Court has held that such an application can be granted where an association is representative in as much as its aim is to protect its members in cases raising questions of principle liable to affect those members (orders in National Power and PowerGen, paragraph 66, and Case C-151/98 P Pharos v Commission [1998] ECR I-5441, paragraphs 6 and 8).

11      It is in the light of those criteria that the merits of GC 100’s application to intervene must be assessed.

12      As a preliminary point, GC 100 is an association open to ‘senior legal officers’ and ‘company secretaries’ of all companies listed on the London Stock Exchange that are constituents of the FTSE 100 Index. The explanations provided by the association also show that it seeks to defend the interests of its members in respect of numerous commercial and financial matters.

13      By contrast, GC 100 has not sought to establish the extent to which the various missions with which it is entrusted might relate to the questions raised in the context of this appeal. Those questions are marked by numerous factual and legal particularities, because the appeal seeks to have set aside in part the judgment of the Court of First Instance in Akzo Nobel Chemicals and Akcros Chemicals v Commission in so far as it rejected the appellants’ claims concerning the confidential status to be granted to a limited amount of email correspondence exchanged within a restricted circle of persons. Thus, the questions raised in this appeal form part of the context of a specific competition investigation and the answers to them must take into account a considerable number of specific factors, such as the content and the date of those emails, and the circle and status of the persons who wrote and received them.

14      Therefore, the questions raised are not sufficiently closely connected to the general aims pursued by GC 100.

15      It follows that GC 100 has not shown that it or its members have a direct interest in the result of the case.

16      In those circumstances, the application to intervene submitted by GC 100 must be dismissed.

 Costs

17      Given that the application to intervene has been dismissed, GC 100 must be ordered, pursuant to Article 69(4) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 of those same Rules, to pay the costs of the intervention proceedings.

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

1.      The application to intervene is dismissed.

2.      The Association of General Counsel and Company Secretaries of the FTSE 100 shall pay the costs of the intervention proceedings.

[Signatures]


* Language of the case: English.