ORDER OF THE PRESIDENT OF THE COURT
29 February 2024 (*)
(Appeal – Application to intervene – Article 40, second paragraph, of the Statute of the Court of Justice of the European Union – No interest in the result of the case)
In Case C‑413/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 July 2023,
European Data Protection Supervisor (EDPS), represented by P. Candellier, G. Devin, X. Lareo, D. Nardi and T. Zerdick, acting as Agents,
appellant,
supported by:
European Data Protection Board, represented by C. Foglia, M. Gufflet, G. Le Grand and I. Vereecken, acting as Agents, and by E. de Lophem, G. Ryelandt and P. Vernet, avocats,
intervener in the appeal,
the other party to the proceedings being:
Single Resolution Board (SRB), represented by H. Ehlers, M. Fernández Rupérez and A. Lapresta Bienz, acting as Agents, and by M. Braun and H.‑G. Kamann, Rechtsanwälte, and F. Louis, avocat,
applicant at first instance,
supported by:
European Commission, represented by A. Bouchagiar and H. Kranenborg, acting as Agents,
intervener in the appeal,
THE PRESIDENT OF THE COURT,
having regard to the proposal of T. von Danwitz, Judge-Rapporteur,
after hearing the Advocate General, A.M. Collins,
makes the following
Order
1 By its appeal, the European Data Protection Supervisor (EDPS) asks the Court of Justice to set aside the judgment of the General Court of the European Union of 26 April 2023, SRB v EDPS (T‑557/20, EU:T:2023:219; ‘the judgment under appeal’), by which the General Court annulled the revised decision of the EDPS of 24 November 2020 adopted following the request from the Single Resolution Board (SRB) for review of the decision of the EDPS of 24 June 2020 concerning five complaints submitted by several complainants (Cases 2019-947, 2019-998, 2019-999, 2019-1000 and 2019-1122) (‘the decision at issue’).
2 By document lodged at the Registry of the Court of Justice on 10 November 2023, ANONOS Inc. applied, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Articles 129 and 130 of the Rules of Procedure of the Court of Justice, for leave to intervene in support of the form of order sought by the EDPS.
3 Following service on the parties by the Registrar of the Court of Justice of that application to intervene, in accordance with Article 131(1) of the Rules of Procedure, applicable to the appeal proceedings pursuant to Article 190(1) of those rules, the EDPS and the SRB submitted their written observations on that application. The SRB alone contended that that application should be rejected.
The application to intervene
Arguments
4 In support of its application to intervene, ANONOS claims that it has a direct and existing interest in the result of the case brought before the Court. In that connection, ANONOS states that it is a legal person whose activity consists in providing data embassy services and selling software for the anonymisation and pseudonymisation of personal data. In doing so, it contributes to the state of the art and technological developments for a high level of protection of personal data and privacy as required under the relevant EU legislation.
5 It claims that the case in which it seeks to intervene concerns the definition of the scope of ‘personal data’ within the meaning of Article 3(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39), together with the concepts of ‘anonymisation’ and ‘pseudonymisation’ for the purposes of that regulation. It takes the view that the outcome of that case will have a direct effect on the regulatory framework under which it can market its products and services and hence its economic position.
6 ANONOS acknowledges that its application to intervene, dated 10 November 2023, was lodged more than six weeks after 21 August 2023, the date on which the notice of the appeal was published in the Official Journal of the European Union, and that its application therefore did not comply with the requirements of Article 130(1) of the Rules of Procedure. ANONOS states that it was, however, misinformed as to the possibility for it to intervene by the information provided by the Court on its website, and that it should, in any event, be granted leave to intervene in order to submit its observations at the hearing, pursuant to Article 129(4) of those rules of procedure.
Assessment
7 The first paragraph of Article 40 of the Statute of the Court of Justice of the European Union provides that Member States and institutions of the European Union may intervene in cases before the Court. The second paragraph of that Article 40 confers the same right to the bodies, offices and agencies of the Union and to any other person which can establish an interest in the result of a case submitted to the Court.
8 It is settled case-law that the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case 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 raised or the arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment or order (order of the President of the Court of 1 September 2022, Google and Alphabet v Commission, C‑48/22 P, EU:C:2022:667, paragraph 6 and the case-law cited).
9 Therefore, more specifically, it is a direct and existing interest in the grant of the form of order that is sought by the party that the applicant to intervene intends to support (order of the President of the Court of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, EU:C:2020:50, paragraph 7 and the case-law cited).
10 In that regard, it is appropriate, in particular, to ascertain that the party applying to intervene is directly affected by the contested measure and that his or her interest in the result of the case is certain. Generally, 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 to intervene (order of the President of the Court of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, EU:C:2020:364, paragraph 8).
11 In the present case, the appeal seeks to have the judgment under appeal set aside, in so far as it annulled the decision at issue, which was adopted by the EPDS further to complaints, made under Regulation 2018/1725, from shareholders and creditors affected by the resolution of the credit institution Banco Popular Español SA. In particular, the complainants disputed the procedure followed by the SRB in order to be able to take a final decision on whether the affected shareholders and creditors should be granted compensation on account of the resolution of Banco Popular Español. They took issue with the SRB for failing to inform them of the fact that their personal data – which were collected by means of a questionnaire intended to allow them to submit comments on the preliminary decision to grant them such compensation and on the non-confidential version of the valuation of the difference in treatment carried out in order to determine whether those complainants would have had better treatment had Banco Popular Español been the subject of normal insolvency proceedings – would be transmitted to third parties. By the decision at issue, the EDPS found that the SRB, as the controller of those data, had failed to fulfil the obligation to provide information laid down in Article 15(1)(d) of that regulation vis-à-vis those complainants.
12 However, ANONOS is neither a shareholder nor a creditor affected by the resolution of the credit institution Banco Popular Español, did not take part in the procedure that led to the adoption of that decision, and cannot be affected directly by the judgment under appeal.
13 In those circumstances, contrary to the arguments put forward by ANONOS, the outcome of the appeal is not such as to alter its legal position on the market for the goods and services that it supplies, and will have no direct effect on its legal situation.
14 It follows that, without there being any need to rule, in the present case, on the procedural consequences of the failure to comply with the period of one month fixed by Article 190(2) of the Rules of Procedure in which to submit applications to intervene, extended on account of distance by the single period of 10 days provided for in Article 51 of those rules of procedure, ANONOS has failed to demonstrate that it 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. Consequently, its application to intervene must be dismissed.
Costs
15 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
16 Since ANONOS has been unsuccessful in its application to intervene, and the EDPS and the SRB have not applied for costs to be awarded against it, it must be held that they are each to bear their own costs in relation to the application to intervene made by ANONOS.
On those grounds, the President of the Court hereby orders:
1. The application to intervene submitted by ANONOS Inc. is dismissed.
2. ANONOS Inc., the European Data Protection Supervisor (EDPS) and the Single Resolution Board (SRB) shall each bear their own costs.
Luxembourg, 29 February 2024.
A. Calot Escobar | | K. Lenaerts |