ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
30 November 2016 (*)
(Intervention – Interest in the result of the case – Representative association whose object is the protection of its members’ interests – Application for confidential treatment)
In Case T‑630/15,
Scandlines Danmark ApS, established in Copenhagen (Denmark),
Scandlines Deutschland GmbH, established in Hamburg (Germany),
represented by L. Sandberg-Mørch, lawyer,
applicants,
v
European Commission, represented by L. Flynn, S. Noë and L. Armati, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented by C. Thorning, acting as Agent, assisted by R. Holdgaard, lawyer,
intervener,
APPLICATION based on Article 263 TFEU and seeking annulment of Decision C(2015) 5023 final of the European Commission of 23 July 2015 on State aid SA.39078 notified by the Kingdom of Denmark for the financing of the Fehmarn Belt Fixed Link project,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and procedure
1 In September 2008, the Kingdom of Denmark and the Federal Republic of Germany signed a treaty in relation to a project for a fixed link between Denmark and Germany.
2 That project consists of: (i) an approximately 19 km immersed coast-to-coast tunnel, which crosses the Fehmarn Belt between Germany and Denmark and consists of a four-lane motorway and an electrified, double-track railway between Rødby (Denmark) and Puttgarden (Germany) (‘the fixed link’); (ii) the fixed link’s rail and road hinterland connections in Denmark (‘the Danish hinterland connections’); and (iii) the fixed link’s rail and road hinterland connections in Germany (‘the German hinterland connections’).
3 Under the treaty concluded between the two Member States, the Kingdom of Denmark is responsible for financing the fixed link and the Danish hinterland connections, while the Federal Republic of Germany is responsible for financing the German hinterland connections.
4 On 22 December 2014, the Kingdom of Denmark notified the European Commission of its decision to grant the Danish company A/S Femern Landanlæg funding for the planning, construction and operation of the Danish hinterland connections and to grant the Danish company Femern A/S funding for the planning, construction and operation of the fixed link.
5 On 23 July 2015, the Commission adopted Decision C(2015) 5023 final on State aid SA.39078 notified by the Kingdom of Denmark for the financing of the Fehmarn Belt Fixed Link project (‘the contested decision’).
6 By that decision, the Commission decided not to raise any objections with regard to the measures notified by the Kingdom of Denmark. In particular, it considered, in the first place, that the funding granted to A/S Femern Landanlæg for the planning, construction and operation of the Danish hinterland connections did not constitute State aid within the meaning of Article 107(1) TFEU, on the ground that that funding was not such as to distort competition or affect trade between Member States. It considered, in the second place, that, should the funding granted to Femern A/S for the planning, construction and operation of the fixed link constitute State aid within the meaning of Article 107(1) TFEU, it would in any event be compatible with the internal market under Article 107(3)(b) TFEU, pursuant to which aid to promote the execution of an important project of common European interest may be considered to be compatible.
7 By application lodged at the Court Registry on 10 November 2015, the applicants, ferry operators who provide services on two sea routes between Germany and Denmark, brought an action seeking annulment of the contested decision.
8 The notice of the bringing of the action was published in the Official Journal of the European Union of 15 February 2016 (OJ 2016 C 59, p. 21).
9 On 17 February 2016, the Commission lodged its defence at the Court Registry.
10 By document lodged at the Court Registry on 7 April 2016, the Swedish shipowners’ association Föreningen för Svensk Sjöfart applied for leave to intervene in the present case in support of the form of order sought by the applicants.
11 The application for leave to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
12 By document lodged at the Court Registry on 25 May 2016, the applicants indicated that they had no objections regarding that application for leave to intervene. In that same document, the applicants applied for certain information contained in the application and in certain documents appended to the application to be treated as confidential with regard to Föreningen för Svensk Sjöfart.
13 By document lodged at the Court Registry on 25 May 2016, the Commission indicated that it was opposed to Föreningen för Svensk Sjöfart being granted leave to intervene.
Law
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 of that statute, 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.
15 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 and existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law raised. The expression ‘result’ is to be understood as meaning the final decision sought from the Court, as set out in the operative part of the judgment. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is certain (orders of 6 March 2003, Ramondín and Ramondín Cápsulas v Commission, C‑186/02 P, EU:C:2003:141, paragraph 7; of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraphs 6 and 7; and of 25 February 2003, BASF v Commission, T‑15/02, not published, EU:T:2003:38, paragraph 26).
16 It is also apparent from settled case-law that the right to intervene is open to representative associations whose object is to protect their members in cases raising questions of principle that are liable to affect those members (orders of 28 September 1998, Pharos v Commission, C‑151/98 P, EU:C:1998:440, paragraph 6; of 9 March 2005, Microsoft v Commission, T‑201/04, EU:T:2005:587, paragraph 31; and of 16 March 2016, One of Us v Commission, T‑561/14, not published, EU:T:2016:173, paragraph 24).
17 In particular, an association may be granted leave to intervene in a case if (i) it represents an appreciable number of undertakings active in the sector concerned, (ii) its objects include that of protecting its members’ interests, (iii) the case may raise questions of principle affecting the functioning of the sector concerned, and (iv) the interests of its members may therefore be affected to an appreciable extent by the forthcoming judgment (orders of 28 May 2004, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2004:164, paragraph 18; 18 October 2012, ClientEarth and International Chemical Secretariat v ECHA, T‑245/11, not published, EU:T:2012:557, paragraph 12; and 16 March 2016, One of Us v Commission, T‑561/14, not published, EU:T:2016:173, paragraph 24).
18 It should be noted that the Court has adopted a broad interpretation of the right of associations to intervene which, according to the Court, is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (orders of 18 October 2012, ClientEarth and International Chemical Secretariat v ECHA, T‑245/11, not published, EU:T:2012:557, paragraph 13; 21 October 2014, Bayer CropScience v Commission, T‑429/13, not published, EU:T:2014:920, paragraph 69; and 16 March 2016, One of Us v Commission, T‑561/14, not published, EU:T:2016:173, paragraph 25).
The application for leave to intervene
19 In support of its application for leave to intervene, Föreningen för Svensk Sjöfart argues, in essence, that it satisfies the conditions required by the case-law cited in paragraph 17 above in order to be granted leave to intervene.
20 As a preliminary point, it should be emphasised that the Commission does not dispute that the second and third conditions are satisfied. More specifically, regarding the second condition, it recognises that the prospective intervener has as its object, inter alia, the protection of its members’ common interests. Regarding the third condition, the Commission recognises that, in the contested decision, it acknowledged that the fixed link was likely to have a negative impact on ferry operators.
21 However, the Commission argues that the prospective intervener does not satisfy the first and fourth conditions listed in the case-law cited in paragraph 17 above.
Whether the prospective intervener is representative
22 Föreningen för Svensk Sjöfart argues that it represents 58 shipping companies, which account for nearly all of the shipping companies operating in Sweden, some of which are also active in other countries. Together, its members hold more than 41% of the votes in the ‘Swedish Shipping Organisation’. Furthermore, Föreningen för Svensk Sjöfart argues that it represents Sweden within the ‘European Community Shipowners’ Association’ (ECSA), where it participates in numerous representative committees and plays a significant role in that association’s policymaking. It therefore considers that it represents an appreciable number of undertakings in the sector concerned, namely the shipping sector, and that, accordingly, it satisfies the first condition listed in the case-law cited in paragraph 17 above.
23 The Commission considers that that first condition is not satisfied in the present case. In that regard, it maintains that, while the prospective intervener describes the situation in Sweden well, it does not explain why that situation is sufficient to satisfy the requirements of that first condition. The Commission adds that such an explanation is all the more necessary given that the Fehmarn Belt project concerns a proposed fixed link, by tunnel, between the Danish port of Rødby and the German port of Puttgarden. That project therefore seems unlikely to affect only (or even mainly) Swedish shipowners.
24 However, under the case-law cited in paragraph 17 above, there is no requirement, in order for an association to be considered to represent an appreciable number of undertakings active in the sector concerned, either for its members to be from more than one Member State (order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, not published, EU:T:2014:920, paragraph 34) or for its members to be the only or the main persons affected. That case-law requires only that an association requesting leave to intervene represent an appreciable number of undertakings active in the sector concerned.
25 In the present case, it should be borne in mind that, in the contested decision, the Commission noted that the purpose of the fixed link was to improve the connection between the Nordic countries and central Europe for passengers and for road and railway freight (see recital 115 of the contested decision). Sweden, by virtue of its geographical location, is one of the countries most nearly concerned by that project.
26 Moreover, the Commission has acknowledged that the opening of the fixed link will have negative effects on the ferry operators serving the route between Rødby (Denmark) and Puttgarden (Germany) and other sea routes in the region (see recital 116 of the contested decision).
27 It is common ground that, among the prospective intervener’s members, there are Swedish ferry operators who serve sea routes in the region of the fixed link project.
28 In addition, the Commission does not dispute the fact that the prospective intervener is the main Swedish association of ferry operators, that it is composed of 58 members and that, among its members, those who provide transport services in the region concerned by the fixed link project collectively hold more than 41% of the votes in the ‘Swedish Shipping Organisation’. Therefore, the prospective intervener represents an appreciable number of undertakings active in the sector concerned by the fixed link project.
29 It must therefore be held that the first condition listed in the case-law cited in paragraph 17 above is satisfied.
Whether the interests of the prospective intervener’s members are significantly affected
30 Föreningen för Svensk Sjöfart submits that it satisfies the fourth condition listed in the case-law cited in paragraph 17 above. It argues that its members are in direct competition with the fixed link which, given that it will connect the German island of Fehmarn to the Danish island of Lolland, will establish uninterrupted rail and road links between Sweden and Germany. In addition, Föreningen för Svensk Sjöfart submits that several of its members have contested the granting of the aid at issue before the Commission.
31 It also submits that the economic situation of some of its members will be significantly affected by that fixed link project. It argues in that regard that:
– TT-Line AB, which provides ferry services on the routes from Trelleborg to Rostock and Trelleborg to Travemünde, would be significantly affected in terms of volume and revenue;
– Stena Line Scandinavia AB, which operates the routes from Trelleborg to Rostock, Trelleborg to Sassnitz and Gothenburg to Kiel, would lose up to 30% of its volume and revenue on each of those routes, most likely forcing it to close its longest route, namely the route from Gothenburg to Kiel;
– Nordö-Link Rederi AB, which provides ferry services on the route from Malmö to Travemünde, is also very likely to incur significant losses in terms of both volume and revenue.
32 The Commission contends that the fourth condition is not satisfied. In that regard, it argues that an ‘uninterrupted rail/road link’ already exists between Germany and Sweden. In addition, Föreningen för Svensk Sjöfart’s assertions that, because of the contested decision, some of its members would lose a large part of their traffic are unsubstantiated. The Commission notes that the annexes provided by Föreningen för Svensk Sjöfart merely confirm the fact that the undertakings mentioned operate the ferry routes indicated. However, that is not sufficient to establish, as required by case-law, that the interests of its members will be affected to an appreciable extent by the forthcoming judgment, not least for the simple reason that a potential future effect on volume and revenue is not sufficient in that regard.
33 Lastly, the Commission argues, in essence, that, according to case-law, the prospective intervener must establish that the contested decision has a direct effect on its legal situation or on the legal situation of its members, not on their economic situation.
34 Furthermore, it contends that one of the undertakings mentioned, namely Stena Line Scandinavia AB, has brought an action against the contested decision, with the result that any interest that it has in the matter depends on that action.
35 As a preliminary point, it should be borne in mind that the contested decision concerns, inter alia, the funding granted to Femern A/S for the operation of the fixed link and that, in that decision, the Commission noted that the services provided by Femern A/S were in competition with the services provided by ferry operators. It is explained in that decision that the opening of the fixed link will have negative effects on the ferry operators serving the sea route between Rødby and Puttgarden and other sea routes in the region. It added that those effects were inherent in the project, which seeks to offer a quicker and more convenient alternative to ferry services (see recitals 80 and 116 of the contested decision).
36 As is apparent from paragraph 31 above, the prospective intervener represents, inter alia, ferry operators who serve sea routes in the region of the fixed link project, such as TT-Line AB, Stena Line Scandinavia AB and Nordö-Link Rederi AB.
37 In addition, it should be noted that the Commission does not dispute that the third condition listed in the case-law cited in paragraph 17 above is satisfied and that the case may therefore raise questions of principle affecting the functioning of the sector concerned and, more specifically, may have potentially negative consequences for ferry operators.
38 The forthcoming judgment is, therefore, likely to significantly affect the interests of the members of the association requesting leave to intervene.
39 The Commission’s arguments cannot call that conclusion into question.
40 First of all the fact, relied on by the Commission, that a link already exists between Sweden and Germany does not alter the Commission’s finding that the fixed link project will have negative consequences for the ferry operators serving sea routes in the region concerned by that project. Indeed, it is stated in paragraph 96 of the contested decision that that fixed link project will significantly improve conditions for transporting passengers and freight and will reduce existing traffic congestion. It must be inferred from this that the project in question is likely to lead to greater numbers of passengers and carriers than those currently travelling between central Europe and the Nordic countries by the rail and road routes mentioned by the Commission being able to take advantage of such a link. That fact will have negative consequences for the ferry operators serving sea routes in the region concerned.
41 Moreover, the Commission cannot rely in the present case on the order of 8 June 2012, Schenker v Koninklijke Luchtvaart Maatschappij (C‑596/11 P(I), not published, EU:C:2012:334, paragraph 22), in order to maintain that a potential future effect on volume and revenue is not sufficient to establish that the fourth condition is satisfied. Although, in that order, the Court held that the fact that an undertaking might possibly, as a customer, be affected by high prices caused by an alleged cartel did not mean that it had the right to intervene in a case in which the undertakings accused of participating in the cartel challenged the legality of the decision establishing and punishing that cartel, the situation invoked by Föreningen för Svensk Sjöfart in support of its application for leave to intervene, namely that it is an association representing ferry operators who serve routes competing with the fixed link, is completely different. As has been recalled in paragraph 18 above, the Court has adopted a broad interpretation of the right of associations to intervene.
42 Lastly, the Commission’s argument that, in essence, the prospective intervener was required to establish that the contested decision had a direct effect on its legal situation or on that of its members, not on their economic situation, must also be rejected. In that regard, it should be noted that it is, admittedly, apparent from the case-law relied on by the Commission that, in principle, an interest in the result of the case can be considered to be sufficiently direct only if that result is capable of altering the legal situation of the prospective intervener (see order of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7 and the case-law cited). However, that case-law was not developed in response to applications for leave to intervene submitted by representative associations and, as has been stated above, the Court has held that an association requesting leave to intervene satisfied the fourth condition listed in the case-law cited in paragraph 17 above in so far as the economic situation of its members was likely to be negatively affected (see, to that effect, order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, not published, EU:T:2014:920, paragraph 54).
43 Moreover, regardless of whether, in the light of the case-law cited in paragraph 17 above, an association such as Föreningen för Svensk Sjöfart would be granted leave to intervene in support of one of its members who has already brought an action for annulment against that decision, Föreningen för Svensk Sjöfart is not invoking the interests of Stena Line Scandinavia AB, the applicant in pending Case T‑631/15, Stena Line Scandinavia AB v Commission, as the only interests likely to be significantly affected by the forthcoming judgment.
44 Consequently, given that Föreningen för Svensk Sjöfart satisfies the conditions listed in the case-law cited in paragraph 17 above, it must be granted leave to intervene in support of the form of order sought by the applicants.
The application for confidential treatment
45 The applicants have requested, in accordance with Article 144(5) and (6) of the Rules of Procedure, that certain confidential material in the file be omitted from the documents communicated to the intervener and have produced, for the purposes of that communication, a non-confidential version of the application and of certain documents appended thereto.
46 At this stage, any procedural documents already served on the main parties that are communicated to the intervening association and any documents to be served at a later date must therefore be limited to a non-confidential version. A decision on the merits of the application for confidential treatment will, should the need arise, be made subsequently, in the light of any objections or observations which may be submitted in that regard.
Costs
47 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings.
48 At this stage of the proceedings, the costs must therefore be reserved.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Föreningen för Svensk Sjöfart is granted leave to intervene in Case T‑630/15 in support of the form of order sought by Scandlines Deutschland GmbH and by Scandlines Danmark ApS.
2. The Registrar shall send Föreningen för Svensk Sjöfart copies of all the procedural documents served on the main parties. Those copies shall, at this stage of the proceedings, be limited to a non-confidential version.
3. A period shall be prescribed for Föreningen för Svensk Sjöfart to submit any objections it may have regarding the application for confidential treatment. The decision on the merits of that application is reserved.
4. A period shall be prescribed for Föreningen för Svensk Sjöfart to submit a statement in intervention, without prejudice to the possibility of its supplementing that statement at a later date, should the need arise, following a decision on the merits of the application for confidential treatment.
5. The costs are reserved.
Luxembourg, 30 November 2016.