ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
11 November 2015 (*)
(Intervention — Interest in the result of the case — Dismissal)
In Case T‑712/14,
Confédération européenne des associations d’horlogers-réparateurs (CEAHR), established in Brussels (Belgium), represented initially by P. Mathijsen and P.C. Dyrberg, and subsequently by M. Sánchez Rydelski, lawyers,
applicant,
v
European Commission, represented initially by F. Ronkes Agerbeek, M. Farley and C. Urraca Caviedes, and subsequently by F. Ronkes Agerbeek, A.E. Dawes and J. Norris — Usher, acting as Agents,
defendant,
supported by
The Swatch Group SA, represented by A. Israel and M. Jakobs, lawyers,
by
LVMH Moët Hennessy-Louis Vuitton, represented by R. Subiotto QC and C. Froitzheim, lawyer,
and by
Rolex, SA, represented by M. Araujo Boyd, lawyer,
interveners,
ACTION for annulment of Commission Decision C(2014) 5642 final of 29 July 2014, rejecting the complaint lodged by the applicant in Case COMP.39.097 — Watch repair,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 On 20 July 2004, the applicant lodged a complaint with the Commission of the European Communities against several undertakings, including the interveners (The Swatch Group SA, LVMH Moët Hennessy-Louis Vuitton, Rolex, SA), active in the watch manufacturing sector (‘the Swiss watch manufacturers’). In the complaint, the applicant alleged the existence of an agreement or a concerted practice between the Swiss watch manufacturers and the abuse of a dominant position resulting from their refusal to continue to supply spare parts to independent watch repairers.
2 On 10 July 2008, the Commission adopted Decision C(2008) 3600, on the basis of Article 7(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18). By that decision, following a limited investigation, the Commission rejected the complaint on the ground that there was insufficient Community interest in continuing the investigation into the alleged infringements (‘the first Commission decision’).
3 By judgment of 15 December 2010 in CEAHR v Commission (T‑427/08, EU:T:2010:517), the Court annulled the first Commission decision, holding that the decision in question was vitiated by an inadequate statement of reasons, a failure to take relevant factors into account and manifest errors of assessment, illegalities which affected the Commission’s finding that there was insufficient Community interest in continuing the investigation.
4 On 1 August 2011, the Commission initiated a proceeding under Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ L 1 2003, p. 1). In the course of its investigation, it sent requests for information, under Article 18 of that regulation, to, amongst others, the applicant and the Spanish, British, German and French associations representing independent watch repairers and held meetings with some of those associations. The Commission also sent requests for information to 64 independent watch repairers active in five EU Member States, and to the Swiss watch manufacturers. Lastly, it also held several meetings with the applicant at various stages of the administrative procedure.
5 On 29 July 2014, the Commission adopted Decision C(2014) 5642 final (COMP.39.097 — Watch repair, ‘the contested decision’). It considered that there was a limited likelihood of finding an infringement of Article 101 TFEU or Article 102 TFEU. Accordingly, exercising its discretion to set priorities, the Commission concluded that there were insufficient grounds for conducting a further investigation into the alleged infringements and rejected the complaint pursuant to Article 7(2) of Regulation No 773/2004.
Procedure
6 By application lodged at the Court Registry on 7 October 2014, the applicant brought an action for the annulment of the contested decision.
7 By document lodged at the Court Registry on 31 March 2015, Cousins Material House Ltd (‘Cousins’) sought leave to intervene in support of the form of order sought by the applicant.
8 The application to intervene was served on the parties in accordance with the first paragraph of Article 116(1) of the Rules of Procedure of the General Court of 2 May 1991.
9 By document lodged at the Court Registry on 20 April 2015, the Commission requested the Court to dismiss the application for leave to intervene.
10 By document lodged at the Court Registry on 22 April 2015, the applicant indicated that it did not oppose the intervention.
Law
11 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, 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 other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case. An application to intervene is to be limited to supporting the form of order sought by one of the parties.
12 It is settled case-law that the concept of 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, 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 form of order sought and not as 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 (orders of 25 November 1964 in Lemmerz-Werke v High Authority, 111/63, ECR, EU:C:1964:82; of 12 April 1978 in Amylum and Others v Council and Commission, 116/77, 124/77 and 143/77, ECR, EU:C:1978:81, paragraphs 7 and 9; of 25 February 2003 in BASF v Commission, T‑15/02, ECR, EU:T:2003:38, paragraph 26, and of 4 February 2004 in Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission, T‑14/00, ECR, EU:T:2004:32, paragraph 11). It is necessary, in particular, to ascertain whether the prospective intervener is directly affected by the contested act and its interest in the result of the case is established (orders of 17 June 1997 in National Power and PowerGen, C‑151/97 P(I) and C‑157/97 P(I), ECR, EU:C:1997:307, paragraph 53, and of 3 June 1999 in ACAV and Others v Council, T‑138/98, ECR, EU:T:1999:121, paragraph 14).
13 It is also settled case-law that it is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific act whose annulment 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 of 15 November 1993 in Scaramuzza v Commission, C‑76/93 P, ECR, EU:C:1993:880 and EU:C:1993:881; orders in BASF v Commission, cited in paragraph 12 above, EU:T:2003:38, paragraph 27, and in Coöperatieve Aan- en Verkoopvereniging Ulestraten, Schimmert en Hulsberg and Others v Commission, cited in paragraph 12 above, EU:T:2004:32, paragraph 12).
14 In the present case, Cousins submits that it is the United Kingdom’s largest wholesale supplier of branded watch spare parts, with a current spare parts catalogue of 115 000 parts. It has been active in this area since 1969 and supplies spare parts to both independent repairers and authorised repairers who form part of the Swiss watch manufacturers’ official networks.
15 In the first place, Cousins maintains that it has a direct, existing interest in the result of the case since if the Court annuls the contested decision on the basis of the errors of law and fact and manifest errors of appraisal alleged by the applicant, it would be of direct benefit to Cousins, whereas if the decision were upheld it would have a serious, adverse and immediate effect on Cousins’ business.
16 Cousins submits in that respect, by way of example, that Swatch Group notified it around the time when the decision contested was adopted that, as from 31 December 2015, it would cease supplying spare parts to Cousins. Thus, Swatch Group’s decision to cease supplying Cousins is directly linked to the contested decision, since the latter decision provides direct and express legitimacy to the decisions of the Swiss watch manufacturers to discontinue long-standing supplies of spare parts, tools and other components. Cousins submits that, in general, the contested decision provides a justification to the Swiss watch manufacturers to maintain and extend their practice of discontinuing supplies, whereas such a justification would no longer exist if the Court were to annul the contested decision.
17 The Commission contends that the circumstances mentioned by Cousins do not support a finding that its application to intervene should be granted, since the annulment of the contested decision would not automatically bring about a change in Cousins’ economic situation.
18 It must be noted that, according to the order of 16 November 2012 in Si.mobil v Commission (T‑201/11, EU:T:2012:606), the annulment of a Commission decision rejecting a complaint alleging an infringement of the EU competition rules could lead the Commission to investigate further into the basis of that complaint, but would not oblige the Commission to find such an infringement. Accordingly, the benefit that the prospective intervener might derive from the annulment does not constitute a direct, existing interest in the result of the case, but, at most, an indirect, future and hypothetical interest arising from the similarity of the economic situation of the applicant and that of the prospective intervener (see, to that effect, order in Si.mobil v Commission, cited above, paragraph 12).
19 Moreover, the hypothetical nature of the impact of the contested decision’s annulment on Cousins’ situation is confirmed, in the present case, by the fact that, following the annulment of the first Commission decision, the Commission carried out a further investigation, but nevertheless found, in the contested decision, that there was a limited likelihood of finding an infringement of Article 101 TFEU or Article 102 TFEU.
20 It follows that the link between the annulment of the contested decision and a possible change in the Swiss watch manufacturers’ practices in relation to the supply of spare parts is too remote, with the result that Cousins’ present argument is not capable of establishing a direct, existing interest in the result of the case.
21 In the second place, Cousins submits that it is a competitor of the Swiss watch manufacturers (i) in relation to the supply of spare parts, components and tools to the repairers authorised by the manufacturers and (ii) in relation to the supply of spare parts to independent watch repairers. Cousins takes the view that, in accordance with the case-law, that situation of competition justifies its intervention. Cousin emphasises that if the contested decision were upheld, it would bring about a significant change in the structure of the market and Cousins would be eliminated as a competitor of those manufacturers in the two abovementioned respects.
22 The Commission contends that, in the context of an action for annulment of a decision rejecting a complaint on the ground that there is an insufficient likelihood of finding an infringement of Article 101 TFEU or Article 102 TFEU, the fact that a prospective intervener is a competitor of the undertakings against which the complaint was made is not sufficient to justify granting the application to intervene.
23 It must be noted that Cousins is indeed a competitor of the Swiss watch manufacturers in relation to the sale of spare parts for watches manufactured by the latter.
24 However, as regards Cousins’ argument based on the case-law, it must be pointed out that the case-law on which it relies, namely the order of 21 February 2008 in Der Grüne Punkt — Duales System Deutschland v Commission, (C‑385/07 P, EU:C:2008:114) and the order of 7 July 1998 in Van den Bergh Foods v Commission (T‑65/98 R, EU:T:1998:155), concerned factual situations different from that of the present case, since the actions in those case were brought against Commission decisions finding an infringement of the EU competition rules. The annulment of such decisions immediately disadvantages competitors, since the measure declaring unlawful and prohibiting certain conduct on the market by the undertakings concerned — which was harmful to the competitors — disappears from the legal order of the European Union. The case as regards the contested decision is different, since, in that decision, the Commission did not definitively classify the conduct of the Swiss watch manufacturers as lawful or unlawful, with the result that the annulment of that decision would have an impact on the classification of that conduct which is much more remote and uncertain than in the case of decisions finding an infringement. The final conclusion of the contested decision was that the Commission did not have sufficient reasons to continue its investigation, in view of the limited likelihood of a finding of an infringement of Article 101 TFEU or Article 102 TFEU. Accordingly, while its annulment could lead the Commission to continue its investigation, the legal classification of the Swiss watch manufacturers’ conduct would remain an open question.
25 It follows that Cousins’ interest relates to the Court’s findings, in the judgment to be delivered, on the pleas raised by the applicant, as, moreover, Cousins indicated in its arguments (see paragraph 15 above), and does not constitute a direct, existing interest in the ruling on the form of order sought.
26 In any event, it can be seen from the order in Si.mobil v Commission (cited in paragraph 18 above, EU:T:2012:606) that the competitive relationship between the undertaking whose conduct is characterised as an infringement of the EU competition rules and the prospective intervener is by itself insufficient to establish that the latter has a direct, existing interest in the result of the case, since the Court did not take that factor — which had been brought to its attention and had been put forward by the applicant for leave to intervene — into account, and rejected the application to intervene (order in Si.mobil v Commission, cited above, paragraphs 10 to 12, see also judgment of 17 December 2014 in Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 4).
27 In the third place, Cousins submits that, as the United Kingdom’s largest independent wholesaler engaged in the supply of spare parts to the independent watch repair sector, it can be expected to advance the interests of that sector in a way which is analogous to, but different from, that of trade associations such as CEAHR.
28 In that respect, it must be pointed out that even if Cousins clearly shares an economic interest with the independent watch repairers, there is a supplier-customer relationship between it and those repairers and it cannot be regarded as an organisation representing the interests of those repairers. Accordingly, its situation is fundamentally different from that of CEAHR, which is an international non-profit organisation whose sole mission is to represent the interests of independent watch repairers.
29 Moreover, as regards the shared interest with the independent watch repairers and the associations representing them in relation to the continued supply of spare parts, it must be pointed out that the mere fact that an economic operator finds himself in a situation analogous to that of the applicant 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 (orders of 20 March 1998 in CAS Succhi di Frutta v Commission, T‑191/96, EU:T:1998:60, paragraph 34, and Si.mobil v Commission, cited in paragraph 18 above, EU:T:2012:606, paragraph 7).
30 Accordingly, that argument is also incapable of justifying the grant of the application to intervene.
31 In the light of the foregoing, the application to intervene must be dismissed.
Costs
32 Under Article 134(1) of the Rules of Procedure of the General Court, which applies to the present case by virtue of Article 144(6) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Cousins has been unsuccessful, it must be ordered to pay the costs incurred by the Commission in relation to the present application to intervene, in accordance with the latter’s pleadings. As the applicant has not submitted any claims as regards the costs relating to the present application to intervene, it must be ordered to bear its own costs incurred in that connection.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application to intervene is dismissed.
2. Cousins Material House Ltd shall bear its own costs and pay the costs incurred by the Commission in relation to the application to intervene.
3. Confédération Européenne des Associations d’Horlogers-Réparateurs (CEAHR) shall bear its own costs incurred in relation to the application to intervene.
Luxembourg, 11 November 2015.