ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
6 December 2007 (*)
(Intervention – Interest in the result of the case – Access to documents)
In Case T‑111/07,
Agrofert Holding a.s., established in Prague (Czech Republic), represented by R. Pokorný, lawyer,
applicant,
supported by
Kingdom of Sweden, represented initially by A. Kruse and S. Johannesson, and subsequently by S. Johannesson, acting as Agents,
and by
Republic of Finland, represented by J. Himmanen, acting as Agent,
interveners,
v
Commission of the European Communities, represented by X. Lewis and P. Costa de Oliveira, acting as Agents,
defendant,
APPLICATION for annulment of, first, the Commission’s decision of 2 August 2006 refusing to grant the applicant access to the documents relating to the notification and pre-notification procedure in the PKN Orlen/Unipetrol case (COMP/M.3543) and, second, Commission Decision D(2007) 1360 of 13 February 2007 confirming that refusal,
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background to the dispute
1 By Decision (2005) D/201863 of 20 April 2005 (Case COMP/M.3543 – PKN Orlen/Unipetrol), the Commission, pursuant to Article 6(1)(b) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), authorised the proposed acquisition of control, by way of purchase of shares, of the Czech company Unipetrol by the Polish company Polski Koncern Naftowy Orlen (‘PKN Orlen’), which was notified to the Commission on 11 March 2005.
2 PKN Orlen is a public company whose main activities are the refining of crude oil, the manufacture of petroleum and petrochemical products and their storage, transport and distribution. Unipetrol is a company active in the fuels and petroleum sector, and also in the petrochemicals, fertilisers and plastics industries.
3 By letter of 28 June 2006, Agrofert Holding a.s. (‘Agrofert’) applied to the Commission pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) for access to the documents relating to the notification and pre-notification procedure in respect of the acquisition of Unipetrol by PKN Orlen.
4 By letter of 2 August 2006, the Director General of the Commission’s Directorate General (DG) for Competition refused the request for access to documents, on the basis of Article 4(2) of Regulation No 1049/2001.
5 By letter of 18 August 2006, Agrofert sent a confirmatory application to the Commission in accordance with Article 7(2) of Regulation No 1049/2001.
6 By letter of 13 February 2007, the Secretary General of the Commission refused the confirmatory application for access to documents (Decision D(2007) 1360).
Procedure
7 By application lodged at the Registry of the Court of First Instance on 13 April 2007, Agrofert brought an action for annulment of, first, the Commission’s decision of 2 August 2006 refusing to grant the applicant access to the documents relating to the notification and pre-notification procedure in the PKN Orlen/Unipetrol case and, second, the Commission’s decision of 13 February 2007 confirming that refusal. Agrofert also requested the Court to order the Commission to produce the documents in question and to pay the costs.
8 The Kingdom of Sweden and the Republic of Finland applied on 13 and 26 July 2007 respectively to intervene in support of the form of order sought by the applicant.
9 By statements of 7 August 2007, the Commission stated that it had no comments on those two applications to intervene.
10 By statements of 21 August 2007, the applicant stated that it had no objection regarding those two applications to intervene.
11 On 20 July 2007, PKN Orlen applied to intervene in support of the form of order sought by the Commission.
12 By statement of 6 August 2007, the Commission submitted that PKN Orlen had established an interest in the result of the main proceedings within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, and should therefore be granted leave to intervene in the main proceedings.
13 By statement of 21 August 2007, Agrofert requested the Court to dismiss PKN Orlen’s application to intervene.
14 By order of 12 September 2007, the Kingdom of Sweden and the Republic of Finland were granted leave to intervene in support of the form of order sought by the applicant.
Law
Arguments of the parties
15 PKN Orlen maintains, first of all, that the documents sought to be produced were submitted to the Commission – on a confidential basis and on the assumption that those documents would not be divulged – in the context of the notification procedure in respect of the concentration, pursuant to Regulation No 139/2004 and Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 (OJ 2004 L 133, p. 1). PKN Orlen submits that those documents contain information, particularly technical, technological and organisational information, of economic and strategic value. The disclosure of those documents to third parties would therefore be damaging to PKN Orlen, as it would give third parties access to information regarding, inter alia, the structure of production, the volume of its domestic and export sales, its capital relations, its distribution network, and details of the utilisation of its production capacity.
16 PKN Orlen further submits that Agrofert is active, inter alia, on the fuel and petrochemical markets, and that it has become a leader on the Czech market in the chemical, agricultural and food industries.
17 PKN Orlen observes, further, that it is in dispute with Agrofert in proceedings pending before the Arbitration Court of the Czech Chamber of Industry and Agriculture in Prague which were initiated by Agrofert, and in which Agrofert claims that PKN Orlen is in breach of contracts entered into on the privatisation of Unipetrol and has engaged in anti-competitive behaviour. PKN Orlen contends that Regulation No 1049/2001 is not intended to enable the parties to a legal dispute concerning access to documents to obtain evidence for the purposes of those arbitration proceedings.
18 The Commission observes that the applicant seeks access to all unpublished documents relating to the notification and to the pre-notification phase of the concentration between PKN Orlen and Unipetrol, and thus to the documents submitted by PKN Orlen. However, PKN Orlen maintains that those documents are confidential and that their disclosure to third parties and competitors could be harmful.
19 The Commission therefore concludes that PKN Orlen has established an interest in the result of the case and should be granted leave to intervene. It relies, in that regard, on Case T‑198/03 Bank Austria Creditanstalt v Commission [2006] ECR II‑1429, in which it was held that, for the purpose of protecting its business secrets, an applicant had a legal interest in bringing an action for annulment in respect of the publication of a non-confidential version of a Commission decision finding an infringement of Article 81 EC. The Commission infers from this that PKN Orlen has an interest in intervening in order to protect its business secrets, to which access is sought by Agrofert in the present case.
20 Agrofert claims that the intervention would add nothing to the substance of the case – which concerns only Agrofert and the Commission – and would not change the outcome. It contends that intervention by PKN Orlen would only complicate the proceedings and increase the costs unnecessarily.
21 Furthermore, PKN Orlen had an opportunity during the notification procedure to designate those documents which it regarded as confidential, and can no longer adduce new facts in that respect.
22 Agrofert also submits that PKN Orlen must have been aware of the existence of the rules on access to documents when it submitted the documents in question in connection with the concentration.
23 According to Agrofert, the exceptions to public access to the documents referred to in the present case, namely the protection of court proceedings and legal advice, are not applicable to PKN Orlen, but only to the Commission, which in its submission confirms that PKN Orlen should not be granted leave to intervene in the present case. Nor can disclosure of those documents harm PKN Orlen’s interests, since the exceptions to public access to documents do not apply to those documents.
24 Finally, Agrofert claims that PKN Orlen wishes to join the present action solely in order to obstruct the pending proceedings, particularly the four sets of pending arbitration proceedings.
Findings of the Court
25 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance by virtue of the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case, save in cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities, has the right to intervene.
26 It follows from consistent case-law that an interest in the result of a case within the meaning of the second paragraph of Article 40 of the Statute of the Court must be understood as being a direct and present interest in the granting of the form of order sought by the party whom the prospective intervener wishes to support (order of the President of the Court of Justice of 6 March 2003 in Case C‑186/02 P Ramondín and Ramondín Cápsulas v Commission [2003] ECR I‑2415, paragraph 7). To that end, it is necessary, in order to grant leave to intervene, to determine that the prospective intervener is directly affected by the contested decision and that his interest in the result of the case is established (order of the President of the Court of Justice of 17 June 1997 in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen v British Coal andCommission [1997] ECR I‑3491, paragraph 53, and order of the President of the Court of First Instance of 26 July 2004 in Case T‑201/04 R Microsoft v Commission [2004] ECR II‑2977, paragraph 32).
27 It is common ground that the Commission’s refusal to grant access to the applicant concerns documents which relate to a concentration to which PKN Orlen is one of the parties and which therefore directly concern its situation.
28 In accordance with the regulations on concentrations, PKN Orlen disclosed the documents in question, expressly emphasising their confidential nature.
29 In the present case, if the Court of First Instance were to decide to allow the application, the Commission might, when complying with the judgment annulling the decisions, find it necessary, in certain circumstances, to disclose to the applicant the documents in question, including those concerning PKN Orlen.
30 Accordingly, it is necessary to consider whether PKN Orlen has a direct and established interest in the fate of the decisions which Agrofert seeks to have annulled.
31 Agrofert’s assertions that the intervention would add nothing to the substance of the case and would only complicate the proceedings, and likewise the assertion that PKN Orlen cannot, at this stage, adduce new facts regarding the confidentiality of the documents produced during the notification procedure, are irrelevant as regards the evaluation of the interest in intervening, and are not capable of invalidating the above conclusion. The same applies to the reference to the pending national proceedings.
32 Agrofert’s argument that the documents in question are not covered by any of the exceptions to the principle of public access to documents, and consequently cannot cause any damage to PKN Orlen’s interests, goes to the substance of the dispute and must therefore, at this stage, be rejected as being premature.
33 Consequently, since the application to intervene has been made in accordance with Article 115 of the Rules of Procedure of the Court of First Instance and the applicant in intervention has established its interest in the result of the case in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice, its application to intervene must be granted.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Polski Koncern Naftowy Orlen SA is granted leave to intervene in Case T‑111/07 in support of the form of order sought by the Commission.
2. The Registrar shall serve on Polski Koncern Naftowy Orlen a copy of every procedural document.
3. A period shall be prescribed within which Polski Koncern Naftowy Orlen must state, in writing, the pleas and arguments relied on in support of the form of order which it seeks.
4. Costs are reserved.
Luxembourg, 6 December 2007
E. Coulon | V. Tiili
Registrar | President |