ORDER OF THE PRESIDENT OF THE COURT
22 October 2019 (*)
(Appeal — Intervention — State aid — Project for the construction of a fixed rail-road link — Logistics undertaking — Port infrastructure manager — Environmental protection association — Interest in the result of the case — Direct and immediate consequences of the aid scheme at issue in the case on the applicant’s economic situation — Article 108(2) TFEU — Interested parties — Admission)
In Case C‑175/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 February 2019,
Stena Line Scandinavia AB, established in Gothenburg (Sweden), represented by L. Sandberg, advokat, and P. Alexiadis, Solicitor,
applicant,
the other parties to the proceedings being:
European Commission, represented by V. Bottka, S. Noë and L. Armati, acting as Agents,
defendant at first instance,
Kingdom of Denmark, represented by J. Nymann-Lindegren, acting as Agent, and R. Holdgaard, advokat,
Föreningen Svensk Sjöfart, established in Gothenburg,
interveners at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal from J.-C. Bonichot, Judge-Rapporteur,
after hearing the Advocate General, M. G. Pitruzzella,
makes the following
Order
1 By its appeal, Stena Line Scandinavia AB seeks to have set aside the judgment of the General Court of the European Union of 13 December 2018, Stena Line Scandinavia v Commission (T‑631/15, not published, EU:T:2018:944, ‘the judgment under appeal’), by which it annulled in part the Commission’s decision of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) concerning the financing of the Fehmarn Strait fixed link project (C(2015) 5023 final, OJ 2015 C 325, p. 5, ‘the contested decision’).
2 By documents filed at the Court Registry on 27 May 2019, Rederi AB Nordö-Link, Trelleborg Hamn AB (‘the port of Trelleborg’) and Aktionsbündnis gegen eine feste Fehmarnbeltquerung eV requested to intervene in this case in support of the form of order sought by Stena Line Scandinavia AB.
3 Those requests to intervene were submitted on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and of Articles 129 and 130 of the Rules of Procedure of the Court of Justice.
4 By letters filed at the Court Registry on 24 June 2019, the Kingdom of Denmark and the European Commission stated that, in their view, those applications should be rejected.
The applications to intervene
Preliminary observations
5 The second paragraph of Article 40 of the Statute of the Court of Justice of the European Union provides that any person may intervene before the Courts of the European Union if that person can establish an interest in the result of a case submitted to one of those Courts.
6 In accordance with the settled case-law of the Court, 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 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 put forward or the arguments raised. The expression ‘result of a case’ refers to the final decision of the Court, as enshrined in the operative part of the judgment which would be delivered if the form of order sought by the party which the applicant for leave to intervene seeks to support were upheld (see, to that effect, order of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, not published, EU:C:2015:135, paragraph 7 and the case-law cited).
7 In that regard, it is necessary in particular to verify that the applicant for leave to intervene is directly affected by the contested act and that its interest in the result of the case is certain (see the order of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:135, paragraph 7 and the case-law cited).
8 In principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the applicant for leave to intervene (see, to that effect, order of the President of the Court of 29 July 2019, Commission v Carreras Sequeros and Others, C‑119/19 P, not published, EU:C:2019:658, paragraph 11 and the case-law cited). In that regard, an interested party, within the meaning of Article 108(2) TFEU, seeking to intervene, in the context of an action for annulment of a decision taken by the Commission relating to State aid, in support of another interested party itself claiming an infringement of the procedural rights which it derives from that provision, has an interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. In the event of the annulment of such a Commission decision, the legal position of the applicant for leave to intervene would be altered in that, first, that annulment entails the obligation for the Commission to open, or, if appropriate, reopen, the formal examination procedure under Article 108(2) TFEU and, second, it would give rise to a right for that applicant, as an interested party, to participate in that formal examination procedure (see, to that effect, order of the Vice-President of the Court of 6 October 2015, Comité d’entreprise SNCM v Commission, C‑410/15 P(I), EU:C:2015:669, paragraphs 10 and 11).
9 Such an interest has also been recognised due to the direct and immediate effect of the aid scheme which is the subject matter of the dispute on the economic situation of the applicant for leave to intervene (see, to that effect, order of the President of the Court of 6 March 2003, Ramondin and Ramondin Cápsulas v Commission, C‑186/02 P, EU:C:2003:141, paragraphs 9 and 10).
10 With regard to applications to intervene submitted by environmental protection organisations, the condition that there must be an ‘interest in the result of the case’, recalled in paragraph 6 above, assumes, first, that the remit of those organisations, as derived from their objective laid down, as the case may be, in their articles of association, has a direct link with the subject matter of that case and, second, that that case raises questions of principle which are liable to affect the interests defended by the organisations in question (orders of the President of the Court of 7 February 2019, Bayer CropScience and Bayer v Commission, C‑499/18 P, not published, EU:C:2019:107, paragraph 6, and of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, not published, EU:C:2019:198, paragraph 25).
The application of Rederi Nordö-Link
Arguments
11 Rederi Nordö-Link is a multinational logistics company specialising in the maritime transport of cars, rail freight, containers and passengers, particularly on the maritime link between Malmö (Sweden) and Travemünde (Germany).
12 In support of its application to intervene, Rederi Nordö-Link asserts that it has an interest in the result of the case.
13 First, it argues that by linking the island of Fehmarn (Germany) to the island of Lolland (Denmark), when there is already a fixed link between Denmark and Sweden, the project to build the Fehmarn Strait fixed link, approved by the Treaty between the Kingdom of Denmark and the Federal Republic of Germany on the Fehmarn Strait fixed link, signed on 3 September 2008 and ratified in 2009 (‘the project at issue’), will establish an uninterrupted rail-road link between Sweden and Germany, which will compete even more with the maritime links which that company operates, since, as it is located in a sparsely populated region with few local commuters, that project will primarily concern long-distance traffic.
14 Second, Rederi Nordö-Link argues that the project at issue is likely to eliminate competition in the ferry transport market between continental Europe and the Nordic countries, and to have the effect, as predicted by independent studies, of leading to higher prices for passengers on the future fixed link.
15 Third, Rederi Nordö-Link believes that its commercial interests are directly threatened by the implementation of the project at issue, which will also compromise the investments it has made.
16 The Kingdom of Denmark and the Commission submit that Rederi Nordö-Link does not have an interest in the result of the case.
17 The Commission argues that the part of the contested decision relating to the measures concerning the connections with the Danish hinterland concerns aid measures separate from those contested in the context of the project at issue, that those separate measures have a different purpose and different beneficiaries, and that Rederi Nordö-Link therefore has not proven that it has an interest in the result of the case as regards those separate measures.
18 The Commission submits that there also appears to be no justification for allowing Rederi Nordö-Link to intervene in support of the form of order sought by the appellants concerning the aid measures relating to the fixed link, since the appeal should be dismissed as manifestly inadmissible in that regard, given that the General Court granted their application in that respect in the judgment under appeal.
19 It adds that Rederi Nordö-Link does not show how its legal position would be affected if the appellants’ appeal were upheld and that the mere fact that the applicant for leave to intervene is a competitor of the company receiving the aid measures the annulment of which is sought is not sufficient to prove an interest in the result of the case.
20 The Commission notes that the same lawyer represents both the appellants and the three applicants for leave to intervene in this case and expresses its doubts, in that context, as to the effectiveness and usefulness of those interventions.
Assessment
21 As regards Rederi Nordö-Link’s interest in the result of the present case, it should be noted from the outset that, even if the measures granted to Femern Landanlæg A/S, in its capacity as a public undertaking responsible for the construction, operation and financing of rail connections with the Danish hinterland, are separate from those granted to Femern A/S, as a public company responsible for the financing, construction and operation of the Fehmarn Strait fixed link, they are no less part of the same project, as the General Court noted in paragraph 88 of the judgment under appeal.
22 In the particular circumstances of the present case, it cannot be ruled out, at this stage of the procedure, that the project at issue offers an alternative to shipping lines between Sweden and Germany and is therefore likely to have consequences on the activity of shipping links between those two Member States operated by Rederi Nordö-Link.
23 In the light of the foregoing, nor can it be ruled out that that company may also be entitled to submit comments to the Commission on the measures referred to in paragraph 21 of this order, which may, where appropriate, be taken into account by that institution during the formal investigation procedure provided for in Article 108(2) TFEU, so that it should be regarded as an ‘interested party’ within the meaning of that provision.
24 In addition, it is appropriate to note that, with regard to those same measures, the appellants claim infringement of their procedural rights under Article 108(2) TFEU.
25 Finally, applications to intervene cannot be rejected on the ground that the applicants for leave to intervene are represented by the same lawyer as the appellants, particularly since, in theory, all those parties claim a common interest in having the form of order sought in the appeal granted.
26 In the light of the case-law of the Court of Justice referred to in paragraphs 7 to 9 of this order and of the foregoing considerations, Rederi Nordö-Link must be regarded as having provided sufficient justification in law of the existence of an interest in the result of the dispute pending before the Court in the present case.
The application to intervene of the port of Trelleborg
Arguments
27 The port of Trelleborg, located in Sweden, is described in the application to intervene as one of the main Swedish ports active on the market for the provision of port and terminal operating services.
28 In support of its application to intervene, the port of Trelleborg claims to have an interest in the settlement of the dispute.
29 First, it argues that by linking the island of Fehmarn to the island of Lolland, where there is already a fixed line between Denmark and Sweden, the project at issue will establish an uninterrupted rail-road link between Sweden and Germany, which will lead to a massive reduction in maritime traffic between those two Member States.
30 In addition, as the project is located in a sparsely populated region with few local commuters, the project at issue should primarily concern long-distance traffic.
31 The port of Trelleborg adds that independent studies have shown that that project will affect the commercial viability of all sectors dependent on port activity.
32 The port of Trelleborg states, second, that the significant loss of income which it will suffer as a result will compromise the investments that it has made.
33 Third, the port of Trelleborg claims that its commercial interests are, in consequence, directly threatened by the implementation of the project at issue.
34 The Kingdom of Denmark and the Commission assert that the port of Trelleborg does not have an interest in the result of the case.
35 The Commission submits that the section of the contested decision concerning the measures relating to connections with the Danish hinterland relates to aid measures separate from those in dispute in the context of the project at issue, that those separate aid measures have a different purpose and different beneficiaries and that the port of Trelleborg fails to justify its interest in the result of the case with regard to those separate aid measures.
36 The Commission argues that there also seems to be no justification for allowing the intervention of the port of Trelleborg in support of the form of order sought by the appellants with regard to the aid measures relating to the fixed link, since their appeal should, in that regard, be dismissed as manifestly inadmissible given that the General Court granted their application in the contested judgment.
37 It adds that the port of Trelleborg has not shown how its legal position would be affected if the appellants’ appeal were upheld and that the mere fact that the applicant for leave to intervene is a competitor of the company receiving the aid measures for which the annulment is sought is not sufficient to justify an interest in the result of the case.
38 The Commission is also of the opinion that there is reason to fear that the port of Trelleborg’s application to intervene may hinder the effectiveness of the proceedings before the Court, since the same lawyer represents both the appellants and the applicants for leave to intervene.
Assessment
39 As regards the interest of the port of Trelleborg in the result of the present case, it should be noted from the outset that, even if the measures granted to Femern Landanlæg, in its capacity as a public undertaking responsible for the construction, operation and financing of rail connections with the Danish hinterland, are distinct from those granted to Femern, as a public company responsible for the financing, construction and operation of the Fehmarn Strait fixed link, they are no less part of the same project, as the General Court noted in paragraph 88 of the judgment under appeal.
40 In the particular circumstances of the present case, it cannot be ruled out, at this stage of the procedure, that the project at issue offers an alternative to shipping lines between Sweden and Germany and is therefore likely to have consequences on the activity of shipping links to and from that port with Germany.
41 In the light of the above, it cannot be ruled out that the port of Trelleborg may also be entitled to submit comments to the Commission on the measures referred to in paragraph 39 of this order, which may, where appropriate, be taken into account by that institution during the formal investigation procedure provided for in Article 108(2) TFEU, so that it should be regarded as an ‘interested party’ within the meaning of that provision.
42 In addition, it should be noted that, with regard to those same measures, the appellants claim infringement of their procedural rights under Article 108(2) TFEU.
43 Finally, applications to intervene cannot be rejected on the ground that the applicants for leave to intervene are represented by the same lawyer as the appellants, particularly since, in theory, all those parties claim a common interest in having the form of order sought in the appeal granted.
44 In the light of the case-law of the Court of Justice referred to in paragraphs 7 to 9 of this order and of the foregoing considerations, the port of Trelleborg must be regarded as having provided sufficient justification in law of the existence of an interest in the result of the dispute pending before the Court in the present case.
The application of Aktionsbündnis gegen eine feste Fehmarnbeltquerung
Arguments
45 Aktionsbündnis gegen eine feste Fehmarnbeltquerung is an association established in Germany, with 429 members.
46 In support of its application to intervene, it claims to have an interest in the result of the case.
47 It argues that its purpose, as stated in its statutes, is, in particular, to protect the environment and the population from the negative environmental and economic effects of the project at issue.
48 It claims to have been the originator of a number of acts of protest against that project and to have instituted court proceedings against it.
49 It claims actively to have participated in programmes to protect the region and sector concerned, consisting of beach-cleaning, protection of water quality and of bees, which could be jeopardised if the project at issue were to be implemented.
50 The Kingdom of Denmark and the Commission assert that that association does not have an interest in the result of the case.
51 The Kingdom of Denmark argues that if the Court were to grant an application to intervene by an association formed specifically to oppose the projects of an entity receiving an aid measure, it could result in the number of persons who could be granted leave to intervene in a case involving such a beneficiary becoming unlimited, since it would be sufficient for those persons, who, as such, would not have the right to intervene, to form an association for that purpose.
52 The Commission notes, as a preliminary comment, that Aktionsbündnis gegen eine feste Fehmarnbeltquerung bases its arguments exclusively on annexes which do not meet the language requirements of Article 38 of the Rules of Procedure, since they are drafted in a language other than the language of the case.
53 The Commission submits that the section of the contested decision concerning the measures relating to connections with the Danish hinterland concerns aid measures separate from those in dispute in the context of the project at issue, that those separate aid measures have a different purpose and different beneficiaries and that there is nothing to show that the activities of Aktionsbündnis gegen eine feste Fehmarnbeltquerung are directed against the activity relating to those connections.
54 That institution adds that the initiatives undertaken by this association to draw the public’s attention to the environmental effects of the project at issue will not be compromised by the result of the case.
55 The Commission also argues that that association does not show that it has a direct and certain interest in the result of the case.
56 The Commission also alleges that there is a risk of undermining the effectiveness of the proceedings before the Court, having regard to the fact that the same lawyer represents both the appellants and the three applicants for leave to intervene in this case.
Assessment
57 As regards the interest of Aktionsbündnis gegen eine feste Fehmarnbeltquerung in supporting the form of order sought by the applicants, it is necessary, first of all, to note that it appears from the application to intervene that the purpose of that association, as stated in its statutes, is to oppose the implementation of the project at issue and that it bases its arguments on a number of initiatives which it has taken to that end.
58 Next, it appears that although, as is clear from paragraphs 21 and 39 of this order, the aid measures granted to Femern Landanlæg are separate from those granted to Femern, the fact remains that those two measures relate to the same project, as the General Court noted in paragraph 88 of the judgment under appeal. Thus, the questions of principle raised in the present dispute, relating to the classification of measures under that project as ‘State aid’, are such as to affect the interests defended by Aktionsbündnis gegen eine feste Fehmarnbeltquerung.
59 Finally, applications to intervene cannot be rejected solely on the ground that the applicants for leave to intervene are represented by the same lawyer as the appellants, especially since, in theory, all those parties claim a common interest in having the form of order sought in the appeal granted.
60 In the light of the case-law of the Court referred to in paragraph 10 of this order and of the foregoing considerations, Aktionsbündnis gegen eine feste Fehmarnbeltquerung must be regarded as having provided sufficient justification in law of the existence of an interest in the result of the dispute pending before the Court in the present case.
61 It follows from all the foregoing considerations that Rederi Nordö-Link, the port of Trelleborg and Aktionsbündnis gegen eine feste Fehmarnbeltquerung must be granted leave to intervene in the present proceedings in support of the form of order sought by the appellants.
The procedural rights of the intervening parties
62 Since the applications of Rederi Nordö-Link, the port of Trelleborg and Aktionsbündnis gegen eine feste Fehmarnbeltquerung were submitted within the one-month period provided for in Article 190(2) of the Rules of Procedure, they will receive, in accordance with Article 131(4) of those Rules, applicable to the appeal proceedings pursuant to Article 190(1) thereof, a copy of every procedural document served on the parties, in the absence of a request from the parties that certain documents or documents be excluded from such communication.
63 Rederi Nordö-Link, the port of Trelleborg and Aktionsbündnis gegen eine feste Fehmarnbeltquerung may, in accordance with Article 132(1) of the Rules of Procedure, submit a statement in intervention within 1 month after that communication and may submit their observations at the oral hearing, if one is held.
Costs
64 Since the applications to intervene of Rederi Nordö-Link, the port of Trelleborg and Aktionsbündnis gegen eine feste Fehmarnbeltquerung must be granted, the costs relating to those interventions must be reserved.
On those grounds, the President of the Court hereby orders:
1. The applications of Rederi AB Nordö-Link, Trelleborg Hamn AB and Aktionsbündnis gegen eine feste Fehmarnbeltquerung eV to intervene in support of the form of order sought by Scandlines Danmark ApS and Scandlines Deutschland GmbH are granted.
2. A copy of all the procedural documents shall be served, by the Registrar, on Rederi AB Nordö-Link, Trelleborg Hamn AB and Aktionsbündnis gegen eine feste Fehmarnbeltquerung.
3. A time limit shall be set for Rederi AB Nordö-Link, Trelleborg Hamn AB and Aktionsbündnis gegen eine feste Fehmarnbeltquerung to submit a statement in intervention.
4. The costs are reserved.
Luxembourg, 22 October 2019.
A. Calot Escobar | | K. Lenaerts |