Language of document : ECLI:EU:T:2017:220

Provisional text

ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

16 March 2017(*)

(Intervention — Statute of the Court of Justice of the European Union — Article 40 — Interest in the result of the case — Control of mergers between undertakings — Application for confidential treatment)

In Case T‑399/16,

CK Telecoms UK Investments Ltd, established in London (United Kingdom), represented by T. Wessely and O.W. Brouwer, lawyers, J. Aitken, A. Woods and M. Davis, Solicitors,

applicant,

v

European Commission, represented by G. Conte, M. Farley, J. Szczodrowski and C. Urraca Caviedes, acting as Agents,

defendant,

APPLICATION for annulment of the Commission Decision of 11 May 2016 declaring a concentration to be incompatible with the internal market and the EEA Agreement (Case COMP/M.7612 — Hutchison 3G UK/Telefónica UK),

THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

makes the following

Order

 Facts and proceedings

1        On 11 September 2015, the European Commission received notification, in accordance with Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), of a planned merger by which CK Telecoms UK Investments Limited, through its subsidiary Hutchinson 3G UK Investments Limited (‘Three’), would acquire, within the meaning of Article 3(1)(b) of that regulation, exclusive control of Telefónica Europe Plc.

2        On 11 May 2016, the Commission adopted Decision C(2016) 2796 final declaring that merger to be incompatible with the internal market and the EEA Agreement (Case COMP/M.7612 — Hutchison 3G UK/Telefónica UK) (‘the contested decision’).

3        By application lodged at the Court Registry on 25 July 2016, the applicant, CK Telecoms UK Investments Limited, the addressee of the contested decision, brought an action seeking the annulment of that decision.

4        By application lodged at the Court Registry on 1 December 2016, EE Limited (‘EE’) applied for leave to intervene in support of the form of order sought by the Commission.

5        The application to intervene was served on the main parties in accordance with Article 144 of the Rules of Procedure of the General Court.

6        By letter lodged at the Court Registry on 21 December 2016, the Commission stated that it did not have any objection to the granting of that application.

7        By document lodged at the Court Registry on 5 January 2017, the applicant stated that it opposed the application to intervene.

 Law

8        In support of its application, the applicant for leave to intervene submits that it has a direct and existing interest in the granting of the form of order sought by the Commission by reason of its presence on the markets affected, its active participation in the administrative procedure before the Commission, and because the proposed merger would have an impact on its ability to compete effectively and, in particular, on the existing network-sharing agreement between Three and EE, which means that the economic and legal position of EE would thus be affected by the result of the case.

9        The applicant submits that the applicant for leave to intervene has failed to establish that it has a direct and existing interest in the result of the present case inasmuch as that result is not capable of altering EE’s legal position. Furthermore, it argues, the application to intervene concerns only one of the pleas raised in the application. Finally, EE’s intervention would, in the applicant’s view, require a confidentiality exercise that would be disproportionate to EE’s limited interest in the result of the case. The applicant concludes from those latter two points that, if EE were to intervene, its access to the case file should, at the very least, be limited to that plea alone.

10      Under the second paragraph of Article 40 of the Statute of the Court of Justice, 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 other than a dispute between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.

11      It is settled 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 put forward. It is appropriate, in particular, to ascertain that the applicant for leave to intervene is directly affected by the contested measure and that its interest in the result of the case is certain (see order of the Vice-President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraphs 6 and 7 and the case-law cited).

12      According to the case-law, the undertakings which are competitors of one or other of the parties to a proposed merger have, in principle, an interest in the result of the case concerning the lawfulness of the Commission’s decision to prohibit that merger on the ground that it is incompatible with the internal market (see order of 12 December 2012, Deutsche Börse v Commission, T‑175/12, not published, paragraph 17 and the case-law cited).

13      Finally, the European Union Courts have allowed certain undertakings to intervene in competition cases, in particular in cases in which the intervention concerned parties which had actively participated in the administrative procedure before the Commission (order of 7 July 1998, Van den Bergh Foods v Commission, T‑65/98 R, EU:T:1998:155, paragraphs 26 and 27). In particular, the Court has held that the participation of an applicant for leave to intervene in the administrative procedure is a factor which must be taken into account in order to determine its interest in the result of the dispute in a merger case (order of 28 November 2013, Ryanair v Commission, T‑260/13, not published, EU:T:2013:672, paragraph 17).

14      In the present case, the applicant for leave to intervene participated in the administrative procedure before the Commission, in particular by being admitted as an interested third party, by replying to the Commission’s questions, by submitting observations on the statement of objections and by participating, together with other interested third parties, in the hearing held on 7 March 2016, these being matters which are not contested by the applicant.

15      Furthermore, it is clear from the case file, and in particular from the applicant’s submission dated 22 November 2015, that, according to the applicant, EE is the closest competitor of the parties to the merger on the retail market for mobile telecommunications services (see recital 409 of the contested decision). Likewise, EE is presented by the Commission as being one of the main competitors of the parties to the merger on that same relevant market (see, in particular, Section 8.2.1.2(a)(i) of the contested decision). In those circumstances, it must be concluded that EE has a competitive relationship with the parties to the merger.

16      The Commission concluded, in the contested decision, that, following the transaction, EE would probably be unable to compete with the merged entity in the relevant markets as effectively as it had prior to the proposed transaction (see, in particular, recitals 940 and 2271 of the contested decision). The applicant for leave to intervene therefore has an interest in seeing the contested decision upheld.

17      In those circumstances, it must be held that EE has an interest in the result of the case.

18      That conclusion is not called into question by the arguments put forward by the applicant.

19      In particular, the conclusion reached in paragraph 17 above is not called into question by the case-law on concerted practices and State aid, according to which, in principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the applicant for leave to intervene (see order of the Vice-President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7 and the case-law cited).

20      To the extent to which that case-law is applicable in merger cases (order of 15 December 2015, 1&1 Telecom GmbH v Commission, T‑307/15, not published, paragraph 26), there is, in the present case, a network-sharing agreement between Three and EE. The contested decision sets out in detail the changes to that agreement which might arise in the event of the transaction, whether due to renegotiations justified by the new position of the entity resulting from the merger (see recitals 1453 and 1581 of the contested decision), or in the context of commitments (see, in particular, recitals 2645 and Sections 9.4.1.3(a), 9.4.2.3(b)(ii), 9.5.5. and 9.6.5.2(a)(ii) of the contested decision). Annulment of the contested decision would be liable to give rise to a new notification of the merger, which, if authorised, would probably be accompanied by similar changes to the network-sharing agreement between Three and EE. The result of the case might therefore affect not only the economic and competitive market position of the applicant for leave to intervene, but also its legal position.

21      The conclusion reached in paragraph 17 above is also not called into question by the applicant’s argument that EE’s interest in the result of the case is merely indirect inasmuch as it is contingent on annulment of the contested decision, followed by a new notification of the transaction and concluding with a decision authorising it.

22      In that regard, it must be recalled that the interest in the result of the case has been regarded as indirect where, for example, a party seeks to intervene in a case solely because its own situation is similar to that of the applicant and not because it has a direct interest in the result of the specific case in which it has applied to intervene (see order of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 53 and the case-law cited). The present case clearly corresponds to the second of those hypotheses because the interest of the applicant for leave to intervene lies in seeing the contested decision upheld.

23      The case-law has established that an undertaking has a direct interest in intervening in a case which concerns the lawfulness of a decision prohibiting a merger from going ahead if it appears, as it does in the present case, that the proposed merger is liable to harm that undertaking’s commercial activity (order of 28 November 2013, Ryanair v Commission, T‑260/13, not published, EU:T:2013:672, paragraph 10).

24      The fact that realisation of the proposed merger is contingent on annulment of the contested decision, followed by a new notification of the transaction and concluding with a decision authorising it, does not therefore contradict, in the present case, the direct interest which the applicant for leave to intervene has in the result of the case.

25      In the light of the foregoing, it must be held that EE has established that it has an interest in the result of the case. It is for that reason necessary to grant EE leave to intervene in the present case in support of the form of order sought by the Commission.

26      The applicant has requested that, in accordance with Article 144(5) and (7) of the Rules of Procedure, certain confidential information in the case file be excluded from communication to EE and it has produced, for the purposes of that communication, a non-confidential version of the procedural documents in question.

27      At the present stage, the communication to EE of the documents served and, where relevant, to be served on the main parties must therefore be limited to a non-confidential version. A decision on the merits of the request for confidential treatment shall, if necessary, be taken at a later stage in the light of any observations which may be submitted on that issue.

28      Article 144(7) of the Rules of Procedure provides that, if an application to intervene is granted, the intervener is to receive a copy of every procedural document served on the main parties (save, where applicable, for the confidential information). In the present case, while the intervener’s access to the case file may therefore be subject to requests for confidential treatment, it cannot, by contrast, be limited to certain pleas, as the applicant has requested.

On those grounds,

THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

hereby orders:

1.      EE limited is granted leave to intervene in Case T399/16 in support of the form of order sought by the European Commission.

2.      The Registrar shall send to EE, at a later stage, a non-confidential version of every procedural document served on CK Telecoms UK Investments Limited and on the Commission.

3.      A date shall be fixed by which EE is to lodge any objections which it may have to the requests for confidential treatment. The decision on the merits of those requests is reserved.

4.      A date shall be fixed by which EE is to lodge a statement in intervention, without prejudice to its right to lodge, if necessary, at a later date, a supplementary statement following a decision on the merits of the requests for confidential treatment.

5.      The costs are reserved.

Luxembourg, 16 March 2017.

E. Coulon

 

      I. Pelikánová

Registrar

 

      President


*      Language of the case: English.