ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
25 June 2015 (*)
(Intervention — Confidentiality)
In Case T‑475/14,
Prysmian SpA, established in Milan (Italy),
Prysmian Cavi e Sistemi Srl, established in Milan,
represented by C. Tesauro, F. Russo and L. Armati, lawyers,
applicants,
v
European Commission, represented by C. Giolito, L. Malferrari, P. Rossi and H. Van Vliet, acting as Agents, and by S. Kingston, lawyer,
defendant,
APPLICATION for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables)
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Background
1 By Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’), the Commission found that a number of undertakings, including the applicants, Prysmian SpA and Prysmian Cavi e Sistemi Srl, and The Goldman Sachs Group, Inc. (‘Goldman Sachs’), had infringed Article 101 TFEU and Article 53 EEA by participating in a cartel in the (extra) high voltage underground and/or submarine power cables sector (Article 1 of the contested decision).
2 In that decision, the Commission also imposed, in respect of that infringement, various fines on the undertakings referred to in Article 1 of that decision, including, on a joint and several basis, a fine of EUR 37 303 000 on the applicants and Goldman Sachs (Article 2(g) of the contested decision). In addition, the Commission ordered the undertakings referred to in Article 1 of the contested decision, including the applicants and Goldman Sachs, immediately to bring to an end the infringement, in so far as they had not already done so, and to refrain from any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect (Article 3 of the contested decision). That contested decision was addressed to, inter alia, the applicants and to Goldman Sachs (Article 4 of the contested decision).
3 It is apparent from the grounds of the contested decision that the Commission found that Prysmian Cavi e Sistemi Srl had participated directly in the abovementioned cartel between 18 February 1999 and 28 January 2009 (recital 729 of the contested decision). Moreover, the Commission took the view that Prysmian SpA and Goldman Sachs had to be held jointly and severally liable with Prysmian Cavi e Sistemi Srl for that infringement, on the ground, essentially, that, during the period from 29 July 2005 to 28 January 2009, they had exercised decisive influence over the conduct of Prysmian Cavi e Sistemi Srl on the market (recitals 782 to 784 of the contested decision).
Procedure
4 By application lodged at the Court Registry on 17 June 2014, the applicants brought an action seeking, principally, the annulment of the contested decision and, alternatively, (i) the annulment of Article 1(5) of the contested decision, in so far as the Commission found that Prysmian Cavi e Sistemi Srl had participated in the abovementioned infringement during the period between 18 February 1999 and 27 November 2001, (ii) the annulment of Article 2(f) and (g) of the contested decision, as regards the determination of the amount of the fines imposed jointly and severally on Goldman Sachs and the applicants, on the one hand, and on Prysmian Cavi e Sistemi Srl and Pirelli & C. SpA, on the other, (iii) a reduction of the fines imposed and (iv) the annulment of Annexes I and II to the contested decision in so far as they concern a senior manager of Prysmian, Mr F. Romeo.
5 The Commission has contended that the action should be dismissed and the applicants ordered to pay the costs.
6 By document lodged at the Court Registry on 4 November 2014, Goldman Sachs sought leave to intervene in the present case in support of the form of order sought by the applicants.
7 By document lodged at the Court Registry on 10 December 2014, the Commission submitted its written observations on that application to intervene.
8 By document lodged at the Registry on the same day, the Commission requested confidential treatment, vis-à-vis Goldman Sachs, of certain material in the defence and the annexes thereto.
Law
Arguments of the parties
9 Goldman Sachs claims that it has an interest in the result of the present case. In particular, it asserts that the legality of the fine which the contested decision imposed on it depends on the legality of the fine imposed on the applicants. According to Goldman Sachs, the contested decision imposed on it a fine on the ground that it exercised decisive influence over the applicants and, accordingly, formed an economic unit with the applicants. Goldman Sachs contends that, as a consequence, in the event of the annulment or reduction of the fine imposed on the applicants, its own liability is directly affected.
10 For its part, the Commission raises objections to Goldman Sachs’ application to intervene. First, it contends, in essence, that Goldman Sachs’ intervention in the present case would be superfluous in the light of its own action brought against the contested decision. Secondly, it submits that Goldman Sachs does not have a direct and existing interest in intervening in support of the form of order sought by the applicants. In the first place, the Commission claims that Goldman Sachs does not have an interest in intervening in support of the form of order seeking annulment of the contested decision in its entirety, for which, in any event, in the Commission’s view, the applicants do not have standing to bring proceedings. In the second place, according to the Commission, the form of order seeking annulment of Article 1(5) relates only to the period from 18 February 1999 to 27 November 2001, for which Goldman Sachs was not considered to be liable in the contested decision. In the third place, the Commission essentially considers that it is not established that Goldman Sachs could derive an advantage from the annulment or reduction by the Court of the fine imposed under Article 2(f) of the contested decision. In the fourth and final place, according to the Commission, Goldman Sachs does not establish its interest in intervening as regards the form of order seeking annulment of Annexes I and II to the contested decision in so far as they concern Mr F. Romeo.
11 The applicants have not raised any objections to Goldman Sachs’ application to intervene.
Assessment of the President
12 The application to intervene was submitted in accordance with Article 115 of the Rules of Procedure.
13 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, except in cases between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.
14 It is settled case-law that the concept of an interest in the result of the 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 forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether its interest in the result of the case is established (orders of 17 February 2010 in Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2010:42, paragraph 25 and the case-law cited, and of 2 July 2010 in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, T‑384/09, EU:T:2010:276, paragraph 23).
15 Moreover, as the Commission observes, in essence, in recital 693 of the contested decision, competition law refers to the activities of undertakings. The concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. The Court of Justice has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (orders in Fresh Del Monte Produce v Commission, paragraph 14 above, EU:T:2010:42, paragraph 26 and the case-law cited, and in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, paragraph 14 above, EU:T:2010:276, paragraph 24).
16 It should also be observed that, in the case of a subsidiary which is wholly owned by the parent company, the parent company and its subsidiary constitute a single undertaking for the purposes of Article 101 TFEU and there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (judgment of 10 September 2009 in Akzo Nobel and Others v Commission, C‑97/08 P, ECR, EU:C:2009:536, paragraphs 59 and 60). The same considerations appear, in essence, in recitals 696 and 697 of the contested decision.
17 In the present case, the Commission took the view that, during the period between 29 July 2005 and 28 January 2009, the date on which the infringement found by the contested decision ended, the applicants and Goldman Sachs formed an economic unit for the purposes of the application of the competition rules. According to the contested decision, Prysmian Cavi e Sistemi Srl did not determine its conduct independently on the market, but was a subsidiary wholly owned by Prysmian SpA (recital 745 of the contested decision). In addition, the contested decision observes that there is evidence which confirms that Goldman Sachs also exercised decisive influence over Prysmian SpA’s commercial policy during the period considered (recitals 739 to 781 of the contested decision).
18 Within the context of the present action, as is apparent from paragraph 4 above, the applicants essentially seek the annulment of the contested decision in so far as that decision concerns them or, alternatively, annulment or reduction of the fine which was imposed on them pursuant to Article 2(f) of that decision.
19 It must be stated that, in the contested decision, the applicants and Goldman Sachs were considered, for the purposes of the application of Article 101 TFEU, to be a single undertaking and were held liable for a single infringement, which is linked to Prysmian Cavi e Sistemi Srl’s conduct on the market, and that Goldman Sachs was held liable for the infringement only on the basis of the existence of an economic unit between it and the applicants. In addition, the applicants and Goldman Sachs were ordered, jointly and severally, to pay a single fine. Goldman Sachs must consequently be able to intervene in the present case in support of the form of order sought by the applicants (see, to that effect, orders in Fresh Del Monte Produce v Commission, paragraph 14 above, EU:T:2010:42, paragraphs 29 and 30, and in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, paragraph 14 above, EU:T:2010:276, paragraph 28).
20 In addition, the fact that Goldman Sachs itself had an independent right of action against the contested decision and has in fact brought such an action is irrelevant for the purposes of determining whether it has established an interest in intervening in the present case (see, to that effect, orders in Fresh Del Monte Produce v Commission, paragraph 14 above, EU:T:2010:42, paragraph 31 and the case-law cited, and in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, paragraph 14 above, EU:T:2010:276, paragraph 29).
21 In the light of the foregoing considerations, it must be held that the interest in intervening in the present case on which Goldman Sachs relies must be classified as a direct, existing interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute. Consequently, the application to intervene must be allowed (see, to that effect, orders in Fresh Del Monte Produce v Commission, paragraph 14 above, EU:T:2010:42, paragraph 32, and in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, paragraph 14 above, EU:T:2010:276, paragraph 30).
22 Since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 15 September 2014, the application to intervene was submitted within the period prescribed in Article 115(1) of the Rules of Procedure and the intervener’s rights will be those provided for in Article 116(2) to (4) of those rules.
23 However, the Commission has requested, in accordance with Article 116(2) of the Rules of Procedure, that certain confidential material in the file be omitted from the communication to the intervener and, for the purposes of that communication, it has produced non-confidential versions of the defence and the annex at issue.
24 At the present stage, the communication to the intervener of the pleadings served and, if necessary, to be served on the parties must therefore be limited to a non-confidential version. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted on that issue.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The Goldman Sachs Group, Inc. is granted leave to intervene in Case T‑475/14 in support of the form of order sought by the applicants.
2. The Registrar shall send to the intervener a non-confidential version of all pleadings served on the parties.
3. A period shall be prescribed within which the intervener may submit any observations that it may have on the request for confidential treatment. The decision on the merits of that request is reserved.
4. A period shall be prescribed within which the intervener may submit a statement in intervention, without prejudice to the possibility of supplementing it later if necessary, further to a decision on the merits of the request for confidential treatment.
5. The costs are reserved.
Luxembourg, 25 June 2015.