ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
12 December 2012 (*)
(Intervention – Interest in the result of a case – Article 116(6) of the Rules of Procedure of the General Court)
In Case T‑635/11,
Regency Entertainment Psychagogiki kai Touristiki AE, established in Maroussi Attikis (Greece), represented by N. Niejahr, lawyer, F.M. Carlin, Barrister, Q. Azau, F. Spyropoulos, I. Dryllerakis, and K. Spyropoulos, lawyers,
applicant,
v
European Commission, represented by P.-J. Loewenthal, D. Triantafyllou and H. van Vliet, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2011) 3504 Final of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25),
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and procedure
1 By application lodged at the Registry of the General Court on 9 December 2011, Regency Entertainment Psychagogiki kai Touristiki AE brought an action for annulment of Commission Decision C (2011) 3504 Final of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25) (‘the contested decision’).
2 In that decision, the Commission found that Greece had put into place discriminatory fiscal treatment in favour of certain casinos through the implementation of several simultaneous, partially mandatory, legal provisions concerning the fixing of a uniform 80% levy on the price of admission tickets and the setting of two unequal regulated prices of admission tickets at EUR 6 and EUR 15 respectively for publicly and privately owned casinos. The Commission took the view that those measures constituted unlawful State aid for the purpose of Article 108(3) TFEU and that they were not compatible with the internal market because they conferred an undue competitive advantage on certain casinos. It therefore decided that Greece had to recover the incompatible aid granted after 21 October 1999 from the casinos which had received it.
3 On 27 July 2012, Koinopraxia Touristiki Loutrakiou (‘KTL’), the headquarters of which are in Athens (Greece) and which is represented by Mr S. Pappas, lawyer, applied for leave to intervene in support of the form of order sought by Commission in the present case.
4 That application to intervene was served on the parties in accordance with the first subparagraph of Article 116(1) of the Rules of Procedure of the General Court. By letter of 10 September 2012, the Commission stated that it had no objections to that request. By letter of 13 September 2012, the applicant claimed that that application to intervene should be dismissed.
5 The parties to the main proceedings have not requested that any of the documents placed on the file be treated as confidential.
The application to intervene
The merits of the application to intervene
6 Paragraph 2 of Article 40 of the Statute of the Court of Justice, which, pursuant to the first paragraph of Article 53 thereof, is applicable to the procedure before the General Court, provides that any person establishing an interest in the result of a case other than cases between Member States, between institutions of the Union or between Member States and institutions of the Union may intervene in that case. According to the fourth paragraph of Article 40 of the Statute of the Court of Justice, an application to intervene is to be limited to supporting the form of order sought by one of the parties.
7 In the present case, KTL submits that it submitted the complaint on the basis of which the Commission adopted the contested decision, actively participated in the administrative procedure and is in competition with the companies which received the aid which is the subject-matter of the contested decision. It adds that it was granted leave to intervene in a similar case which is pending before the General Court (order of the President of the Second Chamber of the General Court of 4 May 2012 in Case T‑419/11 Etaireia Akiniton Dimosiou AE (ETAD) v Commission). It therefore has a direct and present interest in intervening.
8 The applicant disputes KTL’s interest in intervening. It submits first that the application to intervene is inadmissible since the documents putting its application in order were not provided in the language of the case. What is more, KTL does not establish its direct and present interest in intervening. It maintains that the mere fact of having lodged a complaint does not establish the existence of such an interest. Furthermore, it disputes the assertion that KTL is in competition with it. Lastly, it submits that the fact that KTL was granted leave to intervene in Case T‑419/11, which seeks the annulment of the contested decision, does not prove that it has an interest in intervening in this case. In the alternative, the applicant submits that the application to intervene was lodged more than six weeks after the communication of the action in the Official Journal of the European Union and can therefore be granted only on the basis of Article 116(6) of the Rules of Procedure.
9 First of all, the Court points out that the party seeking leave to intervene properly put its application to intervene in order by providing the requested documents within the prescribed period, namely proof of its legal existence and evidence that the authority given to its lawyer was properly established by a representative authorised for that purpose.
10 The fact that those documents were provided in Greek does not invalidate that finding.
11 It is apparent from subparagraphs 1 to 3 of Article 35(3) of the Rules of Procedure and from the second subparagraph of Article 7(5) of the Instructions to the Registrar of the General Court (OJ 2007 L 232, p. 1) that, in the absence of a request from a party to that effect, it is only if the translation into the language of the case appears necessary for the purposes of the efficient conduct of the proceedings that it is for the Registrar to have it carried out (see Case T‑177/07 Mediaset v Commission [2010] ECR II‑2341, paragraph 37).
12 In the present case, in the absence of a request to that effect from the parties, the Court did not deem it necessary to request the translation into the language of the case of the documents in question, which were provided in accordance with procedural requirements for the purposes of identifying the party seeking leave to intervene and its representative.
13 The applicant’s argument that the application to intervene is inadmissible on the ground that the documents putting that application in order were not provided in the language of the case must therefore be rejected.
14 Secondly, the Court points out that the contested decision was adopted at the end of a procedure which was initiated following a complaint lodged by KTL on 8 July 2009. In that complaint, KTL criticised the Greek legislation on a system of levies on admissions to casinos, alleging that such a system provided State aid to three Greek casinos.
15 Furthermore, the contested decision concludes that there is discriminatory fiscal treatment in favour of certain Greek beneficiary casinos through several simultaneous legal provisions which were implemented unlawfully by Greece and are not compatible with the internal market because they confer an undue competitive advantage on the beneficiary casinos, of which the party seeking leave to intervene is not one. The contested decision is thus favourable to KTL and its interests may be affected if that decision is annulled.
16 KTL does therefore have a direct and present interest in the result of the case, since the application seeks the annulment of a decision which was adopted at the end of a procedure initiated following the lodging of its complaint and which is favourable to it (see, to that effect, order of the President of the Third Chamber of the General Court in Case T‑367/94 British Coal v Commission [1997] ECR II‑469, paragraph 31; order of the President of the Third Chamber (Extended Composition) of the General Court of 25 February 2000 in Case T‑127/99 Diputación Foral de Álava and Others v Commission, not published in the ECR, paragraph 12; and order of the President of the Sixth Chamber of the General Court of 6 June 2008 in Case T‑416/05 Olympiakes Aerogrammes v Commission, not published in the ECR, paragraph 29).
17 It follows that KTL has established its interest in the result of the case. Consequently, its application to intervene must be granted.
The intervener’s procedural rights
18 It must be borne in mind that Article 115(1) of the Rules of Procedure provides that an application to intervene must be made within six weeks of the publication in the Official Journal of the European Union of the notice of initiation of the action or, failing that, before the decision to open the oral procedure.
19 Furthermore, Article 116(6) the Rules of Procedure provides that, where the application to intervene is made after the expiry of the period of six weeks prescribed in Article 115(1), the intervener may, on the basis of the Report for the Hearing communicated to him, submit his observations during the oral procedure.
20 It is apparent upon reading those provisions together that the procedural rights of the intervener differ according to whether he submitted his application to intervene before the expiry of the six-week period beginning with the publication in the Official Journal of the European Union of the notice of initiation of the action, or after the expiry of that period but before the decision to open the oral procedure. Where the intervener submitted his application after the expiry of that period, he is only entitled to participate in the oral procedure, provided he submitted his application to the Court of First Instance before the opening of that procedure. In that capacity, he must receive a copy of the Report for the Hearing and may submit his observations on the basis of that report during the oral procedure (see, to that effect, order of the President of the Fourth Chamber of General Court in Case T‑201/04 Microsoft v Commission [2005] ECR II‑1491, paragraphs 39 to 41).
21 In the present case, the notice of initiation of the action was published in the Official Journal of the European Union of 4 February 2012 (OJ 2012 C 32, p. 41). KTL’s application to intervene was lodged at the Registry of the General Court on 27 July 2012. It is therefore obvious that it was submitted after the expiry of the six-week period provided for by Article 115(1) of the Rules of Procedure, plus the period of 10 days on account of distance provided for in Article 102(2) of the Rules of Procedure.
22 Accordingly, KTL can claim only the procedural rights provided for by Article 116(6) of the Rules of Procedure.
Costs
23 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings.
24 At this stage of the proceedings, costs must therefore be reserved.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders:
1. Koinopraxia Touristiki Loutrakiou is granted leave to intervene in Case T‑635/11 in support of the form of order sought by the European Commission.
2. In accordance with the provisions of Article 116(6) of the Rules of Procedure of the General Court, the Registrar shall communicate to it in due course the Report for the Hearing, on the basis of which it may submit any observations during the oral procedure.
3. The costs are reserved.
Luxembourg, 12 December 2012.