ORDER OF THE PRESIDENT OF THE COURT

30 April 2020 (*)

(Appeal — Intervention — Statute of the Court of Justice of the European Union — Article 40 — No interest in the result of the case)

In Case C‑806/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 31 October 2019,

European Commission, represented by T. Christoforou and M. Farley and F. van Schaik, acting as Agents,

appellant,

the other parties to the proceedings being:

HSBC Holdings plc, established in London (United Kingdom),

HSBC Bank plc, established in London,

HSBC France, established in Paris (France),

represented initially by K. Bacon QC, D. Bailey, Barrister, M. Simpson, Solicitor, and C. Angeli and Y. Anselin, avocates, then K. Bacon QC, D. Bailey, Barrister, M. Simpson, Solicitor, and C. Angeli and M. Giner, avocates,

applicants at first instance,

THE PRESIDENT OF THE COURT,

on the proposal of K. Jürimäe, Judge-Rapporteur,

after hearing the Advocate General, E. Tanchev,

makes the following

Order

1        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 24 September 2019, HSBC Holdings and Others v Commission (T‑105/17, EU:T:2019:675) (‘the judgment under appeal’), by which the General Court annulled Article 2(b) of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)) (‘the contested decision’).

2        By document lodged at the Court Registry on 31 January 2020, JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP (together, ‘JPMC’) applied under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union for leave to intervene in support of the form of order sought by HSBC Holdings plc, HSBC Bank plc and HSBC France (together, ‘HSBC’), the applicants at first instance.

3        By document lodged at the Registry on 20 February 2020, the Commission submitted its written observations on that application.

 Application to intervene

4        In support of its application, JPMC state that they have brought an action, registered at the Registry of the General Court under reference T‑106/17, against the contested decision, of which they were also addressees, and that that action concerns the same issue as that before the Court in the present appeal. In addition, and bearing in mind that the Commission has requested the Court, should that appeal be upheld, to rule on the other arguments of HSBC in relation to the determination of the fine, in all probability those arguments overlap with the arguments made by JPMC in their action. Moreover, since the General Court decided on the basis of Article 69(d) of its Rules of Procedure to stay the proceedings on the action pending the judgment of the Court of Justice on the present appeal, JPMC deduce from that decision that the said judgment will have a direct impact on the result of their action. In those circumstances, it would be unfair for the Court to rule on issues which are decisive for the outcome of that action without JPMC being heard on those issues.

5        JPMC accordingly claim to have a direct 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.

6        In this connection, it follows from that provision that any natural or legal person has a right to intervene in a case before the Courts of the European Union, other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union, provided that person can establish an interest in the result of that case.

7        According to the Court’s settled case-law, the concept of an ‘interest in the result of a 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 form of order sought, and not as an interest in relation to the pleas in law or arguments put forward as such. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the decision which closes the proceedings (see, to that effect, orders of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, not published, EU:C:2015:135, paragraph 7 and the case-law cited, and of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, not published, EU:C:2020:50, paragraph 7). Therefore, more specifically, it is a direct and existing interest in the grant of the form of order that is sought by the party that the applicant to intervene intends to support (order of the President of the Court of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, not published, EU:C:2020:50, paragraph 7 and the case-law cited).

8        In that regard, it is appropriate, in particular, to ascertain that the applicant to intervene is directly affected by the contested measure and that his or her interest in the result of the case is certain. Generally, 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 to intervene (orders of the President of the Court of 9 October 2019, Région de Bruxelles-Capitale v Commission, C‑352/19 P, not published, EU:C:2019:856, paragraph 7 and the case-law cited, and of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, not published, EU:C:2020:50, paragraph 8).

9        Furthermore, according to the case-law of the Court, a party which, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas. Thus, it is by taking account, inter alia, of the subject matter of the dispute forming the basis of the appeal, as it emerges from the forms of order sought by the main parties and the pleas put forward in support of those forms of order, that the interest in the result of the case of an applicant to intervene should be assessed (orders of the President of the Court of 27 February 2019, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, not published, EU:C:2019:174, paragraph 9, and of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, not published, EU:C:2020:50, paragraph 9).

10      In the present case, the appeal seeks to have set aside point 1 of the operative part of the judgment under appeal, by which the General Court annulled Article 2(b) of the contested decision imposing on HSBC jointly and severally a fine of EUR 33 606 000.

11      In that regard, JPMC, who are applying to intervene in support of the form of order sought by HSBC seeking that the appeal be dismissed, cannot, by that application, in accordance with the case-law recalled in paragraph 9 above, alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties

12      However, it must be stated that the ruling on the form of order sought by the Commission in the present appeal will have no direct effect on JPMC’s legal situation, since the action brought by JPMC before the General Court is directed at the annulment of the part of the operative part of the contested decision which concerns them, namely, in particular, Article 2(c) of that decision, by which the Commission imposed on them jointly and severally a fine of EUR 337 196 000. Even if the appeal brought by the Commission is dismissed, such a dismissal, which would have the effect of rendering definitive the judgment under appeal and, accordingly, point 1 of the operative part of that judgment by which the General Court annulled Article 2(b) of the contested decision, would, on the other hand, have no direct legal effect on Article 2(c) of the operative part of that decision, by which the Commission imposed the fine on JPMC.

13      In that context, it is necessary to distinguish between applicants to intervene who can establish a direct interest in the ruling on the forms of order sought by the parties to the dispute in which they wish to intervene 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 (orders of the President of the Court of 29 July 2019, EUIPO v Wajos, C‑783/18 P, not published, EU:C:2019:657, paragraph 11, and of 10 September 2019, Council v K. Chrysostomides & Co. and Others, C‑597/18 P, not published, EU:C:2019:740, paragraph 13 and the case-law cited).

14      In the present case, although the situation of JPMC is comparable to that of HSBC due to the nature of the infringements found and the fines which were imposed on those parties, respectively, by the contested decision, the two situations nevertheless remain distinct in fact and in law.

15      In those circumstances, JPMC have established only an indirect interest in the result of the case given that the part of the operative part of the contested decision which was annulled by the judgment under appeal does not concern them.

16      While admittedly JPMC, like HSBC, were addressees of the contested decision, a decision such as the contested decision, although drafted and published as a single decision, must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine. Therefore, it can be annulled only with respect to those addressees which have successfully brought an action before the European Union judicature, and remains binding on the other addressees (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 100 and the case-law cited).

17      The correctness of that analysis is further confirmed by the fact that, as is apparent from paragraphs 10 and 12 above, separate and independent parts of the operative part of the contested decision apply to JPMC and HSBC respectively.

18      The finding set out in paragraph 15 of the present order is not called into question by JPMC’s argument that the action for annulment which they have brought against the contested decision before the General Court concerns an analogous issue to that in the present case.

19      Indeed, on the assumption that the pleas for annulment raised by HSBC and JPMC, respectively, are identical, it must be noted that, in accordance with the case-law of the Court of Justice, in particular that recalled in paragraph 7 above, the interest, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must be established by reference to the form of order sought and not to the pleas in law put forward, taken alone (see also, to that effect, 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 57).

20      In addition, if a person had to be granted leave to intervene in every case in which another person in a similar situation is a party and which may result in a judgment the grounds of which could have an effect on how his or her own position is assessed, it would become difficult, impossible even, to determine when an interest in intervening exists (order of the President of the Court of 10 September 2019, Council v K. Chrysostomides & Co. and Others, C‑597/18 P, not published, EU:C:2019:740, paragraph 15).

21      As regards the fact, also relied upon by JPMC, that the proceedings on their action were stayed by the General Court, pursuant to Article 69(d) of its Rules of Procedure, pending the resolution of the present case, it is apparent from the Court of Justice’s case-law that the purpose of the right to intervene in proceedings before the Court is to allow persons with an interest in the result of a case to set out their arguments. The right of the applicants to intervene to assert their rights and to set out their arguments — which flows from Article 47 of the Charter of Fundamental Rights of the European Union and, in particular, from the guarantees inherent in the right to an effective remedy enshrined in that provision — is guaranteed by virtue of their being parties to proceedings pending before, and not yet examined by, the General Court (order of the President of the Court of 10 September 2019, Council v K. Chrysostomides & Co. and Others, C‑597/18 P, not published, EU:C:2019:740, paragraph 18).

22      The fact that the General Court chose to designate HSBC’s action for annulment as a ‘pilot’ case and to stay the proceedings on the action brought by JPMC is not such as to call into question that finding. The aim of a decision in relation to the designation of ‘pilot’ cases and the staying of proceedings, made on the basis of Article 69(d) of the Rules of Procedure of the General Court, is to facilitate the handling of the cases in the interests of the proper administration of justice. However, that aim would be undermined and the very principle of the designation of ‘pilot’ cases disregarded if the applicants in the stayed cases were granted, simply by virtue of that status, leave to intervene in appeal proceedings (order of the President of the Court of 10 September 2019, Council v K. Chrysostomides & Co. and Others, C‑597/18 P, not published, EU:C:2019:740, paragraph 19).

23      It follows that JPMC have not established a direct and existing interest in the result of the present case. Consequently, their application to intervene must be dismissed.

 Costs

24      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has not applied for costs to be awarded against JPMC and the latter have been unsuccessful in their application to intervene, it must be held that JPMC and the Commission are to bear their own costs in relation to the application to intervene.

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

1.      The application to intervene made by JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP is dismissed.

2.      JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP and the European Commission shall bear their own costs.

Luxembourg, 30 April 2020.

A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.