ORDER OF THE GENERAL COURT (Third Chamber)
22 March 2012 (*)
(State aid – Repayment of the aid – No further interest in bringing proceedings – No need to adjudicate)
In Case T‑114/09,
Viasat Broadcasting UK Ltd, established in West Drayton, Middlesex (United Kingdom), represented by S. Kalsmose‑Hjelmborg and M. Honoré, lawyers,
applicant,
v
European Commission, represented initially by N. Khan and B. Martenczuken, and subsequently by B. Stromsky and L. Flynn, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented initially by J. Bering Liisberg, subsequently by C. Vang, acting as Agents, assisted by P. Biering and K. Lundgaard Hansen, lawyers,
and by
TV2 Danmark A/S, established in Odense C (Denmark), represented by O. Koktvedgaard, lawyer,
interveners,
APPLICATION for the annulment of Commission Decision C (2008) 4224 final of 4 August 2008 in Case N 287/2008, concerning rescue aid granted to TV2 Danmark A/S,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By letter of 16 June 2008, the Kingdom of Denmark notified the European Commission, pursuant to Article 88(3) EC, of its intention to grant rescue aid in the form of a credit facility to TV2 Danmark A/S. Further information and documents were submitted thereafter by the Kingdom of Denmark, most recently, on 18 July 2008.
2 By Decision C (2008) 4224 final of 4 August 2008 (‘the contested decision’), the Commission approved the rescue aid as compatible with the common market under Article 87(3)(c) EC. The contested decision also reminded the Danish authorities that, pursuant to commitments they had made in the course of the preliminary examination of the notified aid, they were obliged to submit a restructuring plan or a liquidation plan for TV2 Danmark or prove that the rescue aid had been repaid in full within six months of its authorisation.
Procedure
3 By application lodged at the Registry of the General Court on 24 March 2009, the applicant, Viasat Broadcasting UK Ltd, brought the present action for annulment of the contested decision.
4 In its application, the applicant stated that it had the intention to submit new information to the Commission and to request the Commission to review the contested decision and to initiate the formal investigation procedure under Article 88(2) EC. The applicant added that the acceptance of its request by the Commission might lead it to withdraw its action and, in those circumstances, the applicant asked the Court to suspend the proceedings in the present case until the Commission takes a decision in respect of the request submitted to it by the applicant.
5 It its observations on the applicant’s request to suspend, lodged at the Registry on 26 May 2009, the Commission confirmed that, in the meantime, the applicant had submitted to it, on 15 May 2009, a request for review of the contested decision and it supported the applicant’s request to suspend the proceedings.
6 By order of the President of the Fifth Chamber of the Court of 9 June 2009, the proceedings were suspended until the Commission responded to the request for review lodged by the applicant on 15 May 2009.
7 In the context of a measure of organisation of procedure, the Court, on 13 April 2010, invited the parties to inform it as to the status of the processing of the applicant’s request and to submit, accordingly, their observations on how the proceedings in this case should continue.
8 In its response, lodged at the Registry on 28 April 2010, the Commission stated that, by letter of 11 June 2009, it had informed the applicant that its request for review of the contested decision raised certain points which were also of importance to the proceedings concerning State aid in C 19/09 (ex N64/09) – restructuring aid granted to TV2 Danmark, notified by the Kingdom of Denmark (‘the restructuring aid’), which, at the time, was at the preliminary examination stage. It also stated that the applicant had accepted its proposal to suspend the administrative proceedings relating to its request for a review until the end of the examination of the restructuring aid. The Commission, therefore, asked the Court to continue the suspension of the proceedings in the present case until the adoption of a final decision concerning the restructuring aid.
9 In its response, lodged at the Registry on 3 May 2010, the applicant confirmed that information and added that the decision concerning the restructuring aid could, depending on its content and wording, have a significant effect in respect of the need to adjudicate in the present case. The applicant, therefore, supported the Commission’s request to continue the suspension of the proceedings in the present case.
10 By order of the President of the Fifth Chamber of the Court of 17 May 2010, the proceedings were suspended until the adoption of the Commission’s final decision concerning the restructuring aid.
11 Upon a change in the composition of the Chambers of the Court, the Judge‑Rapporteur originally designated was assigned to the Third Chamber, to which this case was accordingly allocated. Owing to the partial renewal of the Court, the present case was assigned to a new Judge-Rapporteur sitting in the Third Chamber.
12 By letter lodged at the Registry on 25 May 2011, the Commission stated that on 20 April 2011 it had adopted a final decision concerning the restructuring aid. It added that the Kingdom of Denmark had requested confidential treatment of certain parts of that decision and that a non‑confidential version was being prepared and would be communicated to the Court as soon as it was available. The proceedings in the present case were, therefore, resumed.
13 By documents lodged at the Court Registry on 21 and 31 July 2009 respectively, the Kingdom of Denmark and TV2 Danmark requested leave to intervene in support of the form of order sought by the Commission. Following the resumption of the proceedings in the case, leave to intervene was granted by orders of the President of the Third Chamber of the Court of 12 July 2011. The Kingdom of Denmark and TV2 Danmark lodged their statements in intervention on 10 October 2011.
14 The Commission lodged its defence on 1 August 2011.
15 By letter lodged at the Registry on 27 September 2011, the applicant stated that it had not yet received the non-confidential version of the Commission decision concerning the restructuring aid, and for this reason, it requested an extension of the deadline for lodging its reply. By decision of 4 October 2011, that period was extended until 15 December 2011.
16 By letter lodged at the Registry on 30 November 2011, the applicant stated that it had received the non-confidential version of the decision concerning the restructuring aid on 19 October 2011. In that decision, the Commission had requested the Kingdom of Denmark to suspend the credit facility approved as restructuring aid by the contested decision. Further, according to the information available to it, the Kingdom of Denmark had complied with the Commission’s request and TV2 Danmark had reimbursed the amounts loaned as rescue aid. The applicant pointed out that, in those circumstances, the objective of its action had been attained, in so far as, in essence, any annulment of the contested decision was not liable to change its position. The applicant therefore requested the Court to declare that there was no need to adjudicate in this case.
17 In its observations, lodged at the Registry on 15 December 2011, the Commission stated that it did not object to ‘the applicant’s application to remove the present case from the register of the Court’.
18 In its observations, lodged at the Registry on 18 January 2012, the Kingdom of Denmark stated that, for the reasons set out in its statement in intervention, it ‘[concurred] in the view that’ the action must be dismissed.
19 In its observations, lodged at the Registry on 18 January 2012, TV2 Danmark expressed its agreement with the applicant’s request for an order that there is no need to adjudicate and it noted that, in its statement in intervention, it had also raised the point that there was no need to adjudicate in the present case.
Law
20 Under Article 113 of the Rules of Procedure of the General Court, the Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
21 In the present case, it is apparent from the assertions of the applicant and TV2 Danmark, which are uncontested by the other parties, that TV2 Danmark has reimbursed in full the State aid approved by the contested decision. If the contested decision were to be annulled, the Commission would be obliged to resume the review of that aid and, on completion of that review, it could, at most, only order the reimbursement of that aid, which has already taken place. Consequently, such an annulment would not alter the current position of TV2 Danmark and would not be liable to benefit the applicant in any way, as the applicant itself acknowledges.
22 It is also necessary to point out that an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see Case C-362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42 and the case-law cited). In the present case, the applicant itself affirms that it no longer has any interest in the annulment of the contested decision. The Court must take formal note of such a statement and find that the applicant’s interest in bringing proceedings has ceased to exist in the course of the proceedings.
23 In view of the foregoing, it must be concluded that the action has become devoid of purpose and that there is no need to adjudicate on it.
Costs
24 In its request for an order that there is no need to adjudicate, the applicant submits that the Court should order that each party bear its own costs. The applicant states, in that respect, that it brought the present action on a precautionary basis, since the request for review of the contested decision that it intended to bring (and did, in fact, bring) could not be dealt with by the Commission before the expiry of the time limit for bringing an action. It adds that it endeavoured to limit the costs of the present proceedings, as evidenced by the fact that, concurrently with the bringing of the action, it requested the suspension of the proceedings and then supported the Commission’s proposal to extend the suspension. According to the applicant, most of the expenses incurred by the other parties in the present case resulted from events beyond its control. It was only on reading the non-confidential version of the decision concerning the restructuring aid, that is after the proceedings were resumed, that the applicant was able to note the disappearance of the purpose of the proceedings.
25 The Commission takes the view that the applicant must be ordered to pay the costs, in accordance with Article 87(5) of the Rules of Procedure. It states that, for the reasons set out in its defence, the action was inadmissible due to the applicant’s lack of standing to bring proceedings. The applicant failed to address that subject and, therefore, implicitly accepts that the Commission’s argument is well-founded. The Commission takes the view, in those circumstances, that nothing in its behaviour justifies that it pay part or all of the costs that it incurred in the present case.
26 The Kingdom of Denmark did not comment with regard to the allocation of costs in the event that the case does not proceed to judgment.
27 TV2 Danmark submits that the applicant must be ordered to pay the costs, including those relating to its intervention, since, for the reasons set out in its statement in intervention, the action was manifestly inadmissible or manifestly unfounded in law.
28 As a preliminary observation, it should be pointed out that, under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be at the discretion of the Court. The present case falls within the scope of Article 87(6) and not of Article 87(5), which was wrongly invoked by the Commission, Article 87(5) being applicable where proceedings are withdrawn.
29 Next, although, due to the disappearance of the purpose of the proceedings, the Court cannot rule on the admissibility of the action, it must be recognised that the argument by the Commission and the interveners that it was inadmissible is not entirely devoid of merit and would deserve a thorough examination if it was necessary to rule on the case.
30 However, it must be noted (i) that the applicant is a competitor of TV2 Danmark, the beneficiary of the aid in question; (ii) that, in the past, it had brought an action for the annulment of another decision of the Commission in respect of State aid paid to TV2 Danmark, which was not dismissed as inadmissible by the Court in its judgment in Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark A/S and Others v Commission [2008] ECR II‑2935; (iii) that, shortly after the bringing of the present action, the applicant submitted to the Commission a request for review of the contested decision in which it repeated, in essence, the argument put forward in its action; and (iv) that the applicant actively participated in the procedure leading to the adoption of the Commission’s decision in respect of the restructuring aid, as the Commission itself pointed out in its response to the question from the Court of 13 April 2010.
31 In those circumstances, irrespective of the question of the admissibility of the action, on which it is no longer necessary to rule, it must be acknowledged that this action was not, in any event, vexatious or frivolous.
32 It must also be noted that, as the applicant itself argues, the applicant did all it could to avoid exposing the other parties to the proceedings and, above all, the Commission, to costs which could have been avoided. It is sufficient, in this respect, to point out that the applicant itself requested the suspension of the case pending the processing of the request for review of the contested decision submitted to the Commission and that, subsequently, the applicant expressed its agreement with the Commission’s proposal to continue that suspension as long as the restructuring aid was under review.
33 Furthermore, it must be noted that the applicant submitted its request for an order that there is no need to adjudicate within a reasonable period after receipt of the non‑confidential version of the decision concerning the restructuring aid.
34 In those circumstances, it is apparent that most, if not all, of the costs incurred by the other parties in the case relate to the period between the resumption of the proceedings and the communication to the applicant of the non-confidential version of the decision concerning the restructuring aid. Furthermore, the request for confidential treatment of certain parts of that decision, which necessitated the preparation of a non-confidential version of that decision, prevented the Commission from communicating it to the Court, so it was not possible for the Court to find, of its own motion, that the purpose of the proceedings had ceased to exist.
35 In the light of all the above considerations, the Court concludes, on a fair assessment of the circumstances in the present case, that each party should bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. There is no need to adjudicate on this action.
2. Viasat Broadcasting UK Ltd, the European Commission, the Kingdom of Denmark and TV2 Danmark A/S shall bear their own costs.
Luxembourg, 22 March 2012.