ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
5 October 2023 (*)
(Intervention – Access to documents – No interest in the result of the case)
In Case T‑36/23,
Matina Stevi, residing in Brussels (Belgium),
The New York Times Company, established in New York, New York (United States),
represented by B. Kloostra, lawyer,
applicants,
v
European Commission, represented by P. Stancanelli, A. Spina and M. Burón Pérez, acting as Agents,
defendant,
PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1 By their action under Article 263 TFEU, the applicants, Ms Matina Stevi and The New York Times Company, seek annulment of the European Commission’s Decision C(2022) 8371 final of 15 November 2022 concerning a request for access, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), to text messages exchanged between the President of the Commission and the Chief Executive Officer (CEO) of the pharmaceutical company Pfizer.
Facts and procedure
2 By email of 11 May 2022, the applicants, on the basis of Regulation No 1049/2001, sent a request to the Commission for access to all text messages exchanged between the President of the Commission and the CEO of Pfizer between 1 January 2021 and that date.
3 By Decision C(2022) 8371 final of 15 November 2022, the Commission, following the applicants’ confirmatory application of 9 August 2022, declared that, given that the Commission did not hold any such documents corresponding to the description given in the application, it was not in a position to fulfil the request (‘the contested decision’).
4 On 25 January 2023, by application lodged at the Court Registry, the applicants brought an action for annulment of the contested decision.
5 On 27 March 2023, in accordance with Article 79 of the Rules of Procedure of the General Court, a notice was published in the Official Journal of the European Union (OJ 2023 C 112, p. 37).
6 By document lodged at the Court Registry on 17 May 2023, Ms Daniela Taini and 27 other natural persons whose names are set out in the annex (‘the prospective interveners’) applied for leave to intervene in the present proceedings in support of the form of order sought by the applicants.
7 The application for leave to intervene was served on the parties in accordance with Article 144(1) of the Rules of Procedure.
8 By document lodged at the Court Registry on 10 July 2023, the Commission objected to the application for leave to intervene and requested that the prospective interveners be ordered to pay the costs in relation to that application.
9 By document lodged at the Court Registry on 12 July 2023, the applicants stated that they had no observations to make in relation to the application for leave to intervene.
Law
10 The second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court under the first paragraph of Article 53 of that statute, provides that any person which can establish an interest in the result of a case submitted to the General Court, save in cases between Member States, between EU institutions or between Member States and EU institutions, has the right to intervene in that case.
11 It follows from settled case-law that the concept of ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must be defined with regard to the subject matter of the case and be understood as being a direct and existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law raised. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment. Thus, in proceedings concerning an application for annulment, a person must be regarded as having established an interest in the result of that case, and therefore as having the right to intervene in that case, if that person establishes a direct, existing interest in the grant of the form of order sought by the party in support of whom he or she seeks to intervene and, accordingly, in the ruling on the contested measure (see order of 27 July 2022, EAA v Commission, T‑781/21, not published, EU:T:2022:487, paragraph 8 and the case-law cited).
12 When ruling on an application for leave to intervene opposed by one of the main parties, it is necessary, in particular, to ascertain whether the party applying for leave to intervene is directly affected by the contested measure and whether his or her interest in the result of the case is established. In that regard, it should be pointed out that it is for the prospective intervener to adduce the necessary evidence to prove that he or she satisfies the conditions set out above (see order of 27 July 2022, EAA v Commission, T‑781/21, not published, EU:T:2022:487, paragraphs 10 and 11 and the case-law cited).
13 Finally, it is necessary to distinguish between prospective interveners 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 (order of the President of the Court of Justice of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, not published, EU:C:2020:364, paragraph 13 and the case-law cited).
14 The prospective interveners are 28 natural persons. In support of their application for leave to intervene, they submit that, as European citizens, they have a direct interest in establishing that the Commission’s conduct is transparent and that it has acted in accordance with the principle of good administration laid down in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. They state that they are in the same legal and material situation as the applicants and that they will therefore be exposed to the result of the case.
15 The Commission submits that the application for leave to intervene should be dismissed on the ground that the prospective interveners have in no way demonstrated that they have a direct and existing interest in the result of the case for the purposes of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.
16 In the present case, it should be noted in the first place that the contested decision is addressed to the applicants and that none of the prospective interveners is mentioned in that decision. It must also be noted that the prospective interveners have not adduced any evidence to show that they are in the same legal and material situation as the applicants.
17 Moreover, even assuming that the situation of the prospective interveners is comparable to that of the applicants, it should be pointed out, however, that the mere fact of being in a similar situation thus confers on a prospective intervener only an indirect interest in the result of the case (see order of the President of the Court of Justice of 21 December 2012, Council v Fulmen and Mahmoudian, C‑280/12 P, not published, EU:C:2012:835, paragraph 9 and the case-law cited).
18 In addition, it should be noted that any person in a situation similar to that of the applicants could argue that he or she has an interest in intervening in a dispute. However, 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 Justice of 10 September 2019, Council v K. Chrysostomides & Co. and Others, C‑597/18 P, not published, EU:C:2019:740, paragraph 15).
19 Furthermore, even if the prospective interveners, like the applicants but independently from them, were entitled to seek access to the same documents as those requested by the applicants, they would not, in principle, having regard to the case-law referred to in paragraph 17 above, have a direct interest in the result of the dispute between the applicants and the Commission for the purposes of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union (see, to that effect, order of the President of the Court of Justice of 6 November 2013, Thesing and Bloomberg Finance v ECB, C‑28/13 P, not published, EU:C:2013:744, paragraph 15).
20 In the second place, the mere assertion by the prospective interveners that, as European citizens, they have a direct interest in establishing that the Commission’s conduct is transparent and that it acted in accordance with the principle of good administration cannot suffice to prove their direct and existing interest in the result of the case, within the meaning of the applicable case-law.
21 As is apparent from paragraph 11 above, the concept of an interest in the result of the case must be understood as a direct and existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or the arguments raised by the applicants.
22 Accordingly, it must be held that the prospective interveners, on whom the burden of proof lay pursuant to the case-law referred to in paragraph 12 above, have not adduced the evidence necessary to prove that they had a direct and existing interest in the result of the case.
23 Consequently, the application for leave to intervene must be dismissed.
Costs
24 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings with respect to the prospective interveners, it is appropriate to give a decision on the costs relating to their application for leave to intervene.
25 Under Article 134(1) of the Rules of Procedure, 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 prospective interveners have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission in connection with the present intervention proceedings, in accordance with the form of order sought by the Commission.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for leave to intervene submitted by Ms Daniela Taini and the other natural persons whose names are set out in the annex is dismissed.
2. Ms Taini and the other natural persons whose names are set out in the annex shall pay the costs of the European Commission relating to the intervention proceedings and shall bear their own costs.
Luxembourg, 5 October 2023.