ORDER of the President of the First Chamber of the GENERAL COURT
3 September 2013(*)
(Intervention)
In Case T‑486/11,
Telekomunikacja Polska SA, established in Warsaw (Poland), represented initially by M. Modzelewska de Raad, P. Paśnik and S. Hautbourg, lawyers, C. Vajda, QC, and A. Howard, Barrister, and subsequently by M. Modzelewska de Raad, P. Paśnik and S. Hautbourg, lawyers, and A. Howard, Barrister,
applicant,
supported by:
Polska Izba Informatyki i Telekomunikacji, established at Warsaw (Poland), represented by P. Rosiak, lawyer,
intervener,
v
European Commission, represented by K. Mojzesowicz, G. Koleva and L. Malferrari, acting as Agents,
defendant,
supported by:
Netia SA, established at Warsaw (Poland), represented by P. Alexiadis and E. Dziadykiewicz, Solicitors,
APPLICATION for annulment of Commission Decision of 22 June 2011 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (TFEU) (Case COMP/39.525 – Telekomunikacja Polska) (notified under document C(2011) 4378) (OJ 2011 C 324, p. 7),
THE President of the First Chamber of the GENERAL COURT
makes the following
Order
Facts and procedure
1 By decision of 22 June 2011 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (TFEU) (Case COMP/39.525 – Telekomunikacja Polska) (‘the contested decision’), the Commission held that Telekomunikacja Polska (‘TP’), the only wholesale supplier of LLU (local loop unbundling) and BSA (bitstream access) for broadband internet access in Poland, has infringed Article 102 TFEU by refusing to grant access to its network and to supply wholesale BSA and LLU to alternative operators on the fixed broadband internet retail market and accordingly imposed a fine on it of EUR 127 554 194.
2 By application lodged at the Registry of the General Court on 2 September 2011, the applicant brought an action, registered as Case T‑486/11, seeking, principally, the annulment of the contested decision and, in the alternative, the annulment or reduction of the fine imposed.
3 Pursuant to Article 24(6) of the Rules of Procedure of the General Court, the notice of the application initiating proceedings in the present case was published in the Official Journal of the European Union on 19 November 2011 (OJ 2011 C 340, p. 27).
4 By document lodged at the Registry of the General Court on 23 December 2011, Netia S.A. (‘Netia’) applied for leave to intervene in support of the form of order sought by the Commission.
5 By application lodged at the Registry of the General Court on 28 December 2011, Polska Izba Informatyki i Telekomunikacji (‘PIIT’) sought leave to intervene in support of the form of order sought by the applicant.
6 By order of 29 June 2012, the President of the First Chamber of the General Court granted Netia leave to intervene.
7 By order of 7 November 2012, the President of the First Chamber granted PIIT leave to intervene.
8 By document lodged at the Registry of the General Court on 24 January 2013, European Competitive Telecommunications Association (‘ECTA’) applied for leave to intervene in support of the form of order sought by the Commission.
9 By document lodged at the Registry of the General Court on 13 February 2013, the Commission indicated that it had no objections to ECTA being granted leave to intervene in support of the forms of order sought by it.
10 By document lodged at the Registry of the Court on 15 February 2013, TP raised objections to that intervention.
Law
11 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the 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 other than cases between Member States, between institutions of the Union or between Member States and institutions of the Union is entitled to intervene in that case.
12 The concept of interest in the result of a case must be defined in the light of the very subject-matter of the case and must be understood as a direct and present interest in the form of order sought itself and not an interest in relation to the submissions or arguments put forward (see, to that effect, order of the Court of Justice in Joined Cases 116/77, 124/77 and 143/77 Amylum and Others v Council and Commission [1978] ECR 893, paragraphs 7 and 9, and order of the General Court in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26).
13 According to settled case-law, the right to intervene is open to representative associations the object of which is to protect their members in cases raising questions of principle that are liable to affect those members (orders of the President of the Court in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen v British Coal and Commission [1997] ECR I‑3491, paragraph 66, and in Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6). More particularly, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned, its objects include that of protecting its members’ interests, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given (see, to that effect, order of the President of the First Chamber in Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑479, paragraph 15 and the case-law cited). This broad interpretation of the right of intervention open to associations is intended to facilitate the assessment of the case, whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (order of the President of the Fourth Chamber of 9 March 2005 in Case T‑201/04 Microsoft v Commission, not published in the ECR, paragraph 31).
14 Furthermore, it must be borne in mind that, in accordance with Article 116(6) of the Rules of Procedure of the General Court, where the application to intervene is made after the expiry of the period of six weeks prescribed in Article 115(1), the intervener may, on the basis of the report for the hearing communicated to him, submit his observations during the oral procedure.
15 In the present case, it must be noted that, as is apparent from Article 2 of its Bylaws, ECTA is an association of undertakings which engage in the business of the electronic communications sector in a pro-competitive way in Europe and elsewhere.
16 It is also apparent from Schedule A to those Bylaws that ECTA has the objectives of promoting liberalisation and competition in telecommunications markets, representing the interests of pro-competitive telecommunications providers to key government and regulatory bodies, assisting market entrants through pro‑competitive policies, maintaining a forum for networking and business development throughout Europe and, finally, continually reflecting the dynamic nature of the telecommunications industry.
17 Furthermore, it is apparent from the list of members of ECTA that they include operators active to a significant extent in the telecommunications sector in Europe and a number of associations which in turn represent such operators. ECTA can therefore be regarded as a representative association in the telecommunications sector.
18 The applicant submits that, firstly, ECTA does not have a sufficient interest in the outcome of the present case. The applicant thus argues that the present case relates to a fine imposed on an individual undertaking, concerning a past situation in Poland in particular circumstances, which does not raise any question of principle affecting the telecommunications sector in general. Secondly, the applicant submits that the argument put forward by ECTA in its application for leave to intervene, that it could show what constitutes ‘best practices’ as regards broadband internet penetration across all the Member States of the European Union, is not relevant to the present case. Furthermore, such evidence could not fairly be adduced at the hearing. Thirdly, the applicant submits that the president of ECTA is the Chief Legal Officer of Netia and a member of its management board. It follows that ECTA does not have any real interest in the outcome of the case and would not be able to add anything relevant to the lengthy written submissions of the Commission and Netia itself.
19 In that regard, firstly, it must be noted that the present case concerns the lawfulness of a decision by which the Commission held that the applicant’s practices, as the only wholesale broadband internet access provider in Poland, which consisted, between 3 August 2005 and 22 October 2009, of blocking access to its products by its competitors on the retail broadband internet access market, constituted a single and continuous infringement of Article 102 TFEU. Accordingly, the present case is likely to raise questions of principle affecting the functioning of the sector concerned and, therefore, the interests of the members of ECTA may be affected to a significant extent by the judgment to be delivered.
20 Next, having regard to the nature of the applicant’s conduct which was the subject-matter of the contested decision, ECTA’s suggestion that it state at the hearing what it regards as the ‘best practices’ as regards broadband internet penetration and local loop unbundling in the European Union appears to be relevant. As regards the applicant’s argument that the fact of allowing ECTA to adduce evidence at the hearing as to those ‘best practices’ could infringe its right to a fair hearing, it must be recalled that the oral procedure is adversarial in nature and that the applicant will therefore, in any event, have the opportunity of stating its position on any evidence which ECTA may produce during that stage of the proceedings.
21 Finally, as regards the applicant’s argument that ECTA’s intervention would add nothing to the written submissions of the Commission and Netia because the President of ECTA is the Chief Legal Officer of Netia, of which he is also a member of the management board, it must be noted that such an argument rests on the theory that ECTA’s intervention would reflect only the position of its President and therefore of Netia. It must be pointed out that, firstly, the applicant adduces no evidence that ECTA’s intervention would merely reflect the position of Netia and, secondly, it is apparent from the statement signed by the President and Treasurer of ECTA annexed to the application for leave to intervene that the decision to authorise the Company Secretary and the Vice Chairman to sign the power of attorney authorising the representatives of ECTA to lodge an application for leave to intervene in the present case was taken unanimously by the members of the management board of ECTA.
22 In the light of the foregoing, it must be held that ECTA has duly shown that it has an interest in the outcome of the case. In addition, its application to intervene was served on the parties in accordance with Article 115(2) of the Rules of Procedure. Accordingly, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the proceedings before the General Court by virtue of the first paragraph of Article 53 thereof, ECTA must be granted leave to intervene.
23 Since that application was not made before expiry of the period of six weeks which runs from publication in the Official Journal of the European Union of the notice required under Article 24(6) of the Rules of Procedure of the General Court, ECTA’s intervention must be limited to the submission of observations during the oral procedure, pursuant to Article 116(6) of those rules. Accordingly, ECTA will receive, at the appropriate time, only the report for the hearing which will be prepared in the present case. The rights of the intervener will be those laid down in Article 116(6) of those rules.
Costs
24 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings.
25 At this stage of the proceedings, costs must therefore be reserved.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. European Competitive Telecommunications Association is granted leave to intervene in Case T‑486/11 in support of the form of order sought by the Commission. In accordance with the provisions of Article 116(6) of the Rules of Procedure of the General Court, the Registrar shall, at the appropriate time, communicate to it the report for the hearing with a view to the submission of its observations, if any, during the oral procedure.
2. The costs are reserved.
Luxembourg, 3 September 2013.