ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
16 November 2012 (*)
(Intervention – Interest in the result of the case – Rejection)
In Case T‑201/11,
Si.mobil telekomunikacijske storitve d.d., established in Ljubljana (Slovenia), represented by P. Alexiadis, Solicitor and P. Figueroa Regueiro, lawyer,
applicant,
v
European Commission, represented by C. Giolito and A. Biolan, acting as Agents,
defendant,
supported by
Republic of Slovenia, represented by T. Mihelič Žitko, acting as Agent,
and by
Telekom Slovenije, d.d. (formerly Mobitel, telekomunikacijske storitve, d.d.), represented by J. Sladič and P. Sladič, lawyers,
interveners,
APPLICATION for annulment of Commission Decision C(2011) 355 final of 24 January 2011 in Case COMP/39.707 – Si.mobil/Mobitel rejecting the complaint lodged by Si.mobil telekomunikacijske storitve d.d. pursuant to Article 102 TFEU on 14 August 2009 concerning the allegedly abusive practices of Mobitel telekomunikacijske storitve, d.d. on a number of Slovene wholesale and retail mobile communications markets,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT,
makes the following
Order
1 By application lodged at the Court Registry on 4 April 2011, the applicant brought, pursuant to Article 263 TFEU, an action seeking the annulment of Commission Decision C(2011) 355 final of 24 January 2011 in Case COMP/39.707 – Si.mobil/Mobitel rejecting the complaint lodged by Si.mobil telekomunikacijske storitve d.d. under Article 102 TFEU on 14 August 2009 concerning the allegedly abusive practices of Mobitel telekomunikacijske storitve, d.d. on a number of Slovene wholesale and retail mobile communications markets (‘the Commission decision of 24 January 2011’).
2 By document lodged at the Court Registry on 24 February 2012, Tušmobil d.o.o. sought leave to intervene in support of the form of order sought by the applicant.
3 In their observations lodged at the Court Registry on 21 and 23 March 2012, the applicant and the Commission raised no objections to that application. However, in its observations lodged at the Court Registry on 22 March 2012, the intervener, Telekom Slovenije, d.d. (formerly Mobitel, telekomunikacijske storitve, d.d.), claimed that the Court should reject the application for leave to intervene. In that regard, in essence, it submitted that Tušmobil, which bases its application on the fact that it is in a position similar to that of the applicant, has no interest in the result of the case. It points out that Tušmobil’s application for leave to intervene contains no essential arguments of fact or law in order to demonstrate its interest in intervening.
4 The application to intervene was made in accordance with Article 115(1) of the Rules of Procedure of the General Court.
5 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, any person which can establish an interest in the result of a case submitted to the Court, other than cases between Member States, between institutions of the Union or between Member States and institutions of the Union, has the right to intervene.
6 It follows from 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 an interest in relation to the pleas in law 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 his interest in the result of the case is established (see order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26, and the case-law cited). It is also settled case-law that it is necessary to distinguish between applicants to intervene establishing a direct interest in the ruling on the specific act annulment of which is sought 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 in Case T‑410/03 Hoechst v Commission [2004] ECR II‑4451, paragraph 14 and the case‑law cited).
7 Also in accordance with settled case-law, the mere fact that an economic operator finds himself in a situation analogous to that of the applicant, in particular in that it claims to have suffered damage as a result of the same European Union act, is not, in itself, sufficient to establish an interest to intervene within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice (see, to that effect, order of the President of the Second Chamber in Case T‑191/96 CAS Succhi di Frutta v Commission [1998] ECR II‑573, paragraph 34).
8 It is in the light of those factors that it must be ascertained whether Tušmobil has shown that it has an interest in the result of the case.
9 The Court notes that Tušmobil merely states in its application that, firstly, ‘[b]ased on the market-share criteria, [it] is the third largest mobile network provider in the Republic of Slovenia and it hereby confirms the facts and the claims made by [the applicant] in the … complaint [sent to the Commission on 14 August 2009].’ Secondly, it alleges that ‘[t]he practices and products of [Telekom Slovenije] are causing [it] severe damage in terms of both financial losses and the loss of market share and/or inability to increase its market share’. Thirdly, it points out that, although the Slovenian Competition Protection Office took up the case on 19 March 2009, no decision has been given. Fourthly, it asserts that ‘the factual background, the current situation in the Republic of Slovenia and the arguments presented by [the applicant] indicate the necessity of an investigation that should have been carried out by the Commission. Moreover, the fact that [the Slovenian Competition Protection Office] still has not reached a decision should further persuade the Court to annul the … Commission’s Decision [of 24 January 2011] in order for the … Commission to conduct an investigation and reach a decision regarding the complaint filed by [the applicant].’ Finally, fifthly, Tušmobil claims that ‘[s]ince it was the [party] who provided the necessary information to [the Slovenian Competition Protection Office] and thus enabled it to institute proceedings, [Tušmobil] would provide vital information to the Court to clarify the situation and to reach an informed decision on the matter’.
10 Such claims are not sufficient to establish 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. With regard to the second claim, the application for leave to intervene does not contain any concrete element such as to establish, even at first sight, that the alleged damage is real as regards financial losses and loss of market share. As for the first, third, fourth and fifth claims, Tušmobil fails to show how they could establish its interest in the result of the case.
11 In the absence of such concrete elements or indications, the General Court is therefore not in a position to find that Tušmobil is directly affected by the Commission’s decision of 24 January 2011, nor that its interest in the result of the case is established.
12 In any event, Tušmobil could have an interest in the claims for annulment being upheld in the main proceedings only to the extent that annulment of the Commission’s decision of 24 January 2011 could lead the latter to investigate into the basis of the complaint filed by the applicant on 14 August 2009. Even if that were the case, such an interest does not constitute a direct interest within the meaning of the case-law cited above but, at most, an indirect, future and hypothetical interest arising from the similarity of the situations in question which accordingly does not justify its application for leave to intervene to the required legal standard.
13 In the light of the foregoing considerations, the application for leave to intervene must be dismissed.
Costs
14 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since none of the parties has applied for costs, it is appropriate to order that each of them bear its own costs relating to the present application for leave to intervene.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The application for leave to intervene is dismissed.
2. The applicant for leave to intervene and each of the parties shall bear their own costs relating to the application for leave to intervene.
Luxembourg, 16 November 2012.