ORDER OF THE PRESIDENT OF THE COURT

15 October 2019 (*)

(Appeal — Intervention — Joinder at first instance — Statute of the Court of Justice of the European Union — Article 40 — Interest in the result of the case — Admission to intervene)

In Case C‑337/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 April 2019,

European Commission, represented by P.-J. Loewenthal and F. Tomat, acting as Agents,

applicant,

the other parties to the proceedings being:

Kingdom of Belgium, represented by J.-C. Halleux, C. Pochet and M. Jacobs, acting as Agents, and by M. Clayton and M. Segura, avocates,

Magnetrol International NV, established in Zele (Belgium), represented by H. Gilliams, advocaat, and L. Goossens, avocate,

applicants at first instance,

Ireland,

intervener at first instance,

THE PRESIDENT OF THE COURT,

having regard to the proposal of K. Jürimäe, Judge-Rapporteur,

after hearing the Advocate General, J. Kokott,

makes the following

Order

1        By its appeal, the European Commission seeks the Court to set aside the judgment of the General Court of the European Union of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91; ‘the judgment under appeal’), by which it annulled Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61; ‘the contested decision’).

2        By document lodged at the Court Registry on 18 July 2019, the Kingdom of Belgium lodged a cross-appeal on the basis of Article 176 of the Rules of Procedure of the Court of Justice, seeking to have the judgment under appeal set aside in part, to the extent that the General Court rejected as unfounded the first plea for annulment.

3        By documents lodged at the Court Registry on 23 July and 2 August 2019 respectively, first, Anheuser-Busch InBev SA/NV, established in Brussels (Belgium), and Ampar BVBA, established in Leuven (Belgium), and, second, Atlas Copco Airpower NV, established in Antwerp (Belgium), and Atlas Copco AB, established in Nacka (Sweden) (together, ‘Anheuser-Busch and others’), applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, to intervene in the present case in support of the form of order sought by Magnetrol International NV and the Kingdom of Belgium.

4        By their pleadings lodged on 1, 8 and 22 August 2019, the Kingdom of Belgium and Magnetrol International informed the Court that they had no observations to make on those applications to intervene.

5        By its observations lodged on 9 and 23 August 2019, the Commission contests those applications, contending that Anheuser-Busch and others do not have a direct, existing interest in the result of the case which is the subject of the appeal. In the alternative, that institution submits that, if those same applications were to be granted, the procedural documents relating to the cross-appeal of the Kingdom of Belgium should not be served on them, in so far as the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union does not allow natural or legal persons to intervene in cases between Member States and the institutions of the European Union.

 The applications to intervene

6        In support of their applications, Anheuser-Busch and others submit, in essence, that they are recipients of aid under the aid scheme forming the subject matter of the contested decision and that they brought actions against that decision, which was annulled by the judgment under appeal. They maintain that a dismissal by the Court of Justice of the Commission’s appeal would render final the annulment of the contested decision by the General Court in the judgment under appeal. Such an annulment would directly affect their legal position in their capacity as beneficiaries of that aid scheme.

7        They consider, in those circumstances, that they have a specific, current and legitimate interest in the result of the case.

8        Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any natural or legal person may intervene in a case before the European Union Courts, other than a case between Member States, between EU institutions or between Member States, on the one hand, and institutions of the European Union, on the other hand, if that person can establish an interest in the result of the case.

9        In the case at hand, as a result of the General Court’s joinder of Cases T‑131/16 and T‑263/16, the present case is between not only the Commission and Magnetrol International, but also between the Commission and the Kingdom of Belgium. To the extent that Anheuser-Busch and others apply to intervene in the case in support of the forms of order sought by the applicants at first instance, including those of the Kingdom of Belgium, it must be held that admitting an intervention in support of the forms of order sought by the latter would be contrary to the express terms of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, in relation to a dispute between an EU institution and a Member State.

10      Nevertheless, an applicant to intervene cannot be deprived of its right to intervene, assuming it to be established, in a dispute between an EU institution and a natural or legal person, in support of the form of order sought by the latter, owing to the joinder of the case, at first instance, to another case between that institution and a Member State (order of the President of the Court of 21 December 2016, Commission v Spain and Others, C‑128/16 P, not published, EU:C:2016:1006, paragraph 8). Thus, the wording of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union does not preclude Anheuser-Busch and others from being admitted to intervene in the present proceedings in support of the form of order sought by Magnetrol International, including in support of the form of order sought by that party, where appropriate, in the context of the Kingdom of Belgium’s cross-appeal, provided they establish that they have an interest in the result of the case.

11      So far as concerns the concept of ‘interest in the result of the case’, it follows from the case-law of the Court that it 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 or arguments put forward. The expression ‘the result of the case’ refers to the final decision sought, as it would be set out in the operative part of the judgment to be delivered (order of the President of the Court of 21 December 2016, Commission v Spain and Others, C‑128/16 P, not published, EU:C:2016:1006, paragraph 9 and the case-law cited).

12      In that regard, it is necessary, in particular, to establish that the applicant to intervene is directly affected by the contested measure and that his interest in the result of the case is certain (order of the President of the Court of 6 October 2015, Commission v Banco Santander and Santusa, C‑21/15 P, not published, EU:C:2015:676, paragraph 20 and the case-law cited). In principle, an interest in the result of the case can be regarded as sufficiently direct only in so far as that result is such as to change the legal position of the applicant seeking leave to intervene (order of the President of the Court of 21 December 2016, Commission v Spain and Others, C‑128/16 P, not published, EU:C:2016:1006, paragraph 10 and the case-law cited).

13      In the present case, it is common ground that Anheuser-Busch and others are beneficiaries of the aid scheme that was the subject of the contested decision and that they brought an action for the annulment of that decision. It is similarly undisputed that the proceedings were stayed by the General Court pending the judgment of this Court ruling on the present appeal.

14      It is true that the Court of Justice has already held that, where an applicant to intervene is itself a party to an action before the General Court in which proceedings are stayed pending the decision of the Court of Justice in the case in respect of which it has applied to intervene, the fact that it is refused leave to intervene in that case where the contested act is not the same, though involving a situation or arguments similar to its own, does not constitute a violation of its rights of defence (orders of the President of the Court of 23 July 1998, Alexopoulou v Commission, C‑155/98 P, EU:C:1998:398, paragraphs 14 and 16, and of 21 December 2016, Commission v Spain and Others, C‑128/16 P, not published, EU:C:2016:1006, paragraph 12). It follows that the staying of proceedings referred to in the preceding paragraph cannot, in itself, confer on Anheuser-Busch and others an interest in the result of the case entitling them to be admitted to intervene in it.

15      It must, however, be borne in mind that, in the present case, the actions brought before the General Court by Anheuser-Busch and others seek the annulment of the same act as that at issue in the present case, namely, the contested decision.

16      By that decision, the Commission found that the excess profit exemption scheme, based on Article 185(2)(b) of the Income Tax Code 1992, pursuant to which the Kingdom of Belgium granted tax rulings to Belgian entities of multinational corporate groups authorising those entities to exempt part of their profit from corporate income taxation constitutes State aid within the meaning of Article 107(1) TFEU that is incompatible with the internal market and that was unlawfully put into effect by that Member State in breach of Article 108(3) TFEU. The Commission also, by that decision, ordered the recovery of that aid from the beneficiaries.

17      In the appeal brought against the judgment under appeal, by which the contested decision was annulled, the outcome of the form of order sought by Magnetrol International is thus such as to have a direct effect on the legal position of Anheuser-Busch and others with regard to that decision. The possible dismissal of the Commission’s appeal in the present proceedings, in accordance with the form of order sought by Magnetrol International in support of which Anheuser-Busch and others wish to intervene, would mean that the annulment ex tunc and erga omnes of the contested decision, delivered by the General Court in the judgment under appeal, would become final.

18      Consequently, it must be held that Anheuser-Busch and others have shown that they have an 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 of the European Union.

19      As regards the procedural rights of those interveners, it must be held that their applications to intervene were submitted within the period of one month provided for in Article 190(2) of the Rules of Procedure, such that they are entitled, in principle, to receive every procedural document served on the parties, pursuant to Article 131(4) of those rules, applicable to the procedure on appeal by virtue of Article 190(1) of those rules. Having regard, in particular, to the ancillary nature of the cross-appeal in relation to the main appeal, there is no need to grant the Commission’s request that the documents relating to the cross-appeal not be disclosed to Anheuser-Busch and others.

20      In those circumstances, it is appropriate, however, to prescribe a short period for the Commission and the Kingdom of Belgium as well as Magnetrol International to make a request, if they so wish, for confidential treatment of the documents in the file of the present case.

21      In the light of all these considerations, Anheuser-Busch and others must be admitted to intervene in the proceedings in support of the form of order sought by Magnetrol International, including, as the case may be, in support of the form of order sought by that party in the cross-appeal of the Kingdom of Belgium.

 Costs

22      Pursuant to Article 137(1) of the Rules of Procedure, applicable to the appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

23      In the present case, since the applications to intervene submitted by Anheuser-Busch and others have been granted, the costs relating to their intervention must be reserved.

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

1.      Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower NV and Atlas Copco AB are admitted to intervene in Case C337/19 P in support of the form of order sought by Magnetrol International NV.

2.      Subject to point 3, a copy of every procedural document shall be served on Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower NV and Atlas Copco AB by the Registrar.

3.      A period shall be prescribed for the European Commission and the Kingdom of Belgium as well as Magnetrol International NV to make a request, if they so wish, for confidential treatment of the documents in the file of the present case in respect of Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower NV and Atlas Copco AB.

4.      A period shall be prescribed for Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower NV and Atlas Copco AB to set out, in writing, the pleas relied on in support of the forms of order sought by them.

5.      The costs are reserved.


Luxembourg, 15 October 2019.


A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.