ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
25 June 2015 (*)
(Intervention — Confidentiality)
In Case T‑451/14,
Fujikura Ltd, established in Tokyo (Japan), represented by L. Gyselen, lawyer,
applicant,
v
European Commission, represented by A. Biolan, C. Giolito and H. van Vliet, acting as Agents, and by M. Johansson, 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 applicant, Fujikura Ltd, and the companies Furukawa Electric Co. Ltd (‘Furukawa’) and Viscas Corporation (‘Viscas’), 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 an individual basis, a fine of EUR 8 152 000 on the applicant, and, on a joint and several basis, a fine of EUR 34 992 000 on the applicant, Furukawa and Viscas (Article 2(o) and (p) of the contested decision). In addition, the Commission ordered the undertakings referred to in Article 1 of the contested decision, including the applicant, Furukawa and Viscas, 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 decision was addressed to both the applicant and to Furukawa and Viscas (Article 4 of the contested decision).
3 It is apparent from the grounds of the contested decision that the Commission found that both the applicant and Furukawa had participated directly in the infringement found to have occurred during the period between 18 February 1999 and 30 September 2001 (recital 811 of the contested decision), and that Viscas had participated directly in the infringement during the period between 1 October 2001 and 28 January 2009 (recital 815 of the contested decision). Moreover, the Commission essentially took the view that the applicant and Furukawa had to be held liable for the anti-competitive conduct of Viscas, on the ground that, during the period considered, they had jointly exercised decisive influence over its conduct on the market (recitals 816 to 853 of the contested decision).
Procedure
4 By application lodged at the Court Registry on 16 June 2014, the applicant brought an action seeking (i) a reduction of the fine imposed on it pursuant to Article 2(o) of the contested decision for its direct participation in the cartel between 18 February 1999 and 30 September 2001, and (ii) the annulment of Article 2(p) of the contested decision in so far as that decision declares it jointly and severally liable for the fine imposed on Viscas between 1 January 2005 and 28 January 2009.
5 The Commission has contended that the action should be dismissed and the applicant ordered to pay the costs.
6 By document lodged at the Court Registry on 29 October 2014, Viscas sought leave to intervene in the present case in support of the form of order sought by the applicant.
7 By letter of 11 November 2014, the application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.
8 By document lodged at the Court Registry on 4 December 2014, the applicant raised no objections to that application.
9 By document lodged at the Court Registry on 5 December 2014, the Commission essentially requested the Court to reject Viscas’ application to intervene.
10 By separate document lodged at the Court Registry on the same day, the Commission requested that, in accordance with Article 116(2) of the Rules of Procedure, certain information in Annex B.28 to the defence be excluded from the file communicated to Viscas, if its intervention were allowed. To that end, the Commission produced a non-confidential version of the documents concerned.
Law
Arguments of the parties
11 Viscas, supported in all essential respects by the applicant, claims that it has established an interest in the result of the case submitted to the Court in the present case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice. In that regard, it submits essentially that, in the contested decision, it was considered to be liable, with the applicant, for a single infringement in respect of the period between 1 October 2001 and 28 January 2009 and that it was ordered jointly and severally with the applicant to pay a single fine for the period considered. It also maintains that, according to the case-law, it is irrelevant whether it also has an independent right of action against the contested decision. Lastly, Viscas claims that the pleas in law and main arguments put forward by the applicant have direct implications on the separate action which it itself has brought before the Court against the contested decision, since they reinforce the pleas relied on in support of that action. In particular, Viscas asserts that the applicant’s plea alleging that the Commission erred by including in the calculation of the amount of the fine which was imposed on it the value of independent sales of Viscas’ parent companies in 2004 is capable of influencing the treatment given by the Court to the similar plea which it raises in its own action. According to Viscas, the applicant’s plea alleging infringement of the principle of proportionality, in that the limited weight of the Japanese undertakings in the infringement is not reflected in the amount of the fine imposed on them, is also capable of substantiating the fourth plea of its own action, alleging infringement of the same principle.
12 The Commission raises objections in respect of that application to intervene. First, the Commission notes that Viscas has brought its own action for annulment against the contested decision and that, accordingly, its intervention does not favour the economy of procedure. Secondly, the Commission submits, in essence, that Viscas does not have a right to intervene as regards the applicant’s first two pleas, which concern only the part of the fine imposed exclusively on the applicant. Lastly, the Commission submits, in essence, that Viscas does not have any interest in supporting the applicant’s third plea. In particular, it submits that, if that plea were upheld by the Court, the applicant would no longer be jointly liable with Viscas and Furukawa for payment of the fine which was imposed on them jointly and severally, which would give rise to a financial risk for Viscas.
Assessment of the President
13 The application to intervene was submitted in accordance with Article 115 of the Rules of Procedure.
14 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. In accordance with the same provision, an application to intervene is to be limited to supporting the form of order sought by one of the parties.
15 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 (order 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).
16 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 (order in Fresh Del Monte Produce v Commission, EU:T:2010:42, paragraph 15 above, paragraph 26 and the case-law cited).
17 In the present case, the Commission took the view that, during the period between 18 February 1999 and 30 September 2001, the applicant had participated directly in the cartel at issue and that, during the period between 1 October 2001 and 28 January 2009, the date on which the infringement found by the contested decision ended, the applicant and Viscas formed, in conjunction with Furukawa, an economic unit for the purposes of the application of the competition rules, since Viscas did not determine its conduct independently on the market, but was a subsidiary owned by the applicant and Furukawa. The contested decision observes, in particular, that there is evidence which confirms that both the applicant and Furukawa exercised decisive influence over the commercial policy of Viscas (recitals 815 to 852 of the contested decision).
18 Within the context of the present action, as is apparent from paragraph 4 above, the applicant seeks, in particular, a reduction of the fine imposed on it by virtue of its participation in the infringement during the period between 18 February 1999 and 30 September 2001.
19 It must be stated that, in the contested decision, the applicant was considered to be liable for a single and continuous infringement, both by virtue of its direct participation during the first period referred to in paragraph 17 above and by virtue of its decisive influence over the conduct of Viscas in respect of the second period, also referred to in paragraph 17 above. It must also be stated that, as regards that second period, the applicant and Viscas were considered, for the purposes of the application of Article 101 TFEU, to be a single undertaking, with the result that the applicant was held liable for the infringement in respect of that second period only on the basis of the existence of an economic unit in particular between it and Viscas. In addition, in respect of that second period, the applicant and Viscas were ordered, jointly and severally, to pay a single fine.
20 Admittedly, the form of order sought by the applicant, referred to in paragraph 18 above, seeks only a reduction of the fine which was imposed on it in respect of the first period, a period in which, since Viscas’ operations had not yet started, it was not possible for the Commission to find that it had participated in the cartel at issue.
21 Moreover, it is true that, as the Commission essentially states, the second of the applicant’s heads of claim seeks the annulment of the fine which was imposed on it, jointly and severally with Viscas and Furukawa, only in so far as it is an addressee of that part of the contested decision. Thus, in its third plea, the applicant confines itself to contesting its liability in respect of the participation of its subsidiary, Viscas, in the cartel at issue, during the period between 1 October 2001 and 28 January 2009, but does not contest the merits of the fine itself. Consequently, as the Commission noted in its observations, if the Court were to uphold that head of claim, the applicant would no longer be obliged, on a joint and several basis with Viscas and Furukawa, to pay the fine at issue, which, evidently, Viscas does not have an interest in supporting, given the financial risk which it would thereby incur.
22 However, the reduction by the Court of the fine imposed on the applicant in respect of the first period could be such as to influence the treatment which may be given to the form of order sought by Viscas within the context of its own action and which seeks a reduction of the fine which was imposed on it in respect of the second period.
23 That could be the case if, in order to decide such a reduction, the Court were to uphold the applicant’s plea alleging infringement by the Commission of the principle of proportionality on account of the limited weight of the Japanese undertakings in the infringement or its plea alleging that the Commission incorrectly took into account the applicant’s independent sales in calculating the fine, since similar pleas are also raised by Viscas in its own action.
24 Lastly, contrary to what the Commission submits in essence, the fact that Viscas itself has 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, order in Fresh Del Monte Produce v Commission, EU:T:2010:42, paragraph 15 above, paragraph 31 and the case-law cited).
25 In the light of the foregoing considerations, it must be held that the interest in intervening in the present case on which Viscas 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, since Viscas limits its intervention to supporting the applicant’s claims seeking a reduction of the fine imposed on the latter by virtue of its direct participation in the infringement. Consequently, the application to intervene must be allowed (see, to that effect, order in Fresh Del Monte Produce v Commission, EU:T:2010:42, paragraph 15 above, paragraph 32).
26 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 28 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.
27 However, the Commission has requested, in accordance with Article 116(2) of the Rules of Procedure, that certain confidential material in Annex B.28 to the defence be omitted from the communication to the intervener and, for the purposes of that communication, it has produced non-confidential versions of the documents concerned.
28 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. Viscas Corporation is granted leave to intervene in Case T‑451/14 in support of the form of order sought by the applicant.
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.