ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
30 November 2016 (*)
(Intervention – Environmental organisation – Interest in the result of the case – 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, Naturschutzbund Deutschland e.V. (NABU) 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 to NABU being granted leave to intervene in support of the form of order sought by them. 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 NABU.
13 By document lodged at the Court Registry on 25 May 2016, the Commission indicated that it was opposed to NABU being granted leave to intervene.
Law
14 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 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 is apparent 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 and arguments 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 Moreover, the Courts of the European Union have adopted a broad interpretation of the right of associations to intervene, 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 (see order of 16 March 2016, One of Us v Commission, T‑561/14, not published, EU:T:2016:173, paragraph 25 and the case-law cited).
17 Regarding, in particular, applications for leave to intervene submitted by environmental organisations, the requirement for a direct and existing interest in the result of the case means either that the scope of the activities of such organisations should coincide with that of the region and sector concerned by the proceedings before the Court or, where the scope of their activities is wider, that they should be actively involved in protection programmes or studies relating to the region and sector concerned, the viability of which could be jeopardised if the contested measure were to be adopted (see order of 21 October 2014, Bayer CropScience v Commission, T‑429/13, not published, EU:T:2014:920, paragraph 73 and the case-law cited).
The application for leave to intervene
18 In the light of the case-law cited in paragraph 17 above, it is necessary to determine, first of all, whether the scope of NABU’s activities coincides with that of the region and sector concerned by the proceedings before the Court.
19 In that regard, NABU submits that it is a not-for-profit, independent organisation, which operates in Germany and whose objective is the protection of the environment. Given that the fixed link project consists of, inter alia, the completion of German hinterland connections, the scope of NABU’s activities coincides, both from a geographic point of view and in terms of its subject matter, with that of the region and sector concerned by the proceedings before the Court.
20 It should be borne in mind that, although the fixed link project consists of, inter alia, the completion of German hinterland connections, the contested decision does not concern those connections. It is solely concerned with the funding granted by the Kingdom of Denmark for the planning, construction and operation of the fixed link project and the Danish hinterland connections (see paragraphs 2 to 4 above).
21 The region concerned by the contested decision is thus the area of the fixed link, which crosses the Baltic Sea between Rødby and Puttgarden and covers approximately 4 to 5 km of the Danish and German coastlines, and the Danish hinterland.
22 It is apparent from the extract from NABU’s website, appended to the application for leave to intervene, that it is one of the largest environmental associations in Germany, that it brings together 560 000 members and sponsors who look after more than 110 000 hectares of protected reserves in Germany, and that it has volunteer groups working on an international level to conserve nature and combat poverty in Africa, Eurasia and the Caucasus. NABU is thus an association which is active throughout Germany and which also intervenes at international level.
23 Therefore, it must be found that the scope of NABU’s activities does not coincide with that of the region concerned by the contested decision.
24 That finding is not affected by NABU’s argument that the annulment of the contested decision will effectively lead to the cancellation of the whole fixed link and thus of the German hinterland connections which include the upgrading of the road link between Heiligenhafen and Puttgarden, and the expansion and electrification of the rail link between Lübeck and Puttgarden.
25 Indeed, even assuming that the region concerned by the contested decision includes the German hinterland, the scope of NABU’s activities extends well beyond that region.
26 Having regard to the case-law cited in paragraph 17 above, it is therefore necessary to determine whether NABU is actively involved in protection programmes or studies relating to the region and sector concerned, the viability of which could be jeopardised if the contested decision were to be adopted.
27 In that regard, NABU submits, first, that its largest nature conservation centre – the Wallnau Waterbird Reserve – is located in the west of the island of Fehmarn, a German island in close proximity to the fixed link project.
28 Secondly, it argues, regarding ‘protection programmes relating to the region and sector concerned’, that it is actively involved in a vast number of campaigns and has undertaken several initiatives aiming to draw the public’s attention to the negative impact of the fixed link project on the environment. Thus, NABU has led a campaign against the fixed link project since 2007 which involves numerous initiatives, such as the organisation of public online protests, the sending of letters to ministers and Members of Parliament to vote against the fixed link project, and the signing of resolutions against that project. It has also issued numerous press releases informing the public of the harmful effects of the fixed link project on the environment and has asked the Kingdom of Denmark and the Federal Republic of Germany to abandon that project and focus on the expansion of the ‘Jutland route’ as a more environmentally-friendly and less costly alternative.
29 Thirdly, it submits, regarding ‘studies relating to the region and sector concerned’, that it has commissioned several studies and reports specifically related to the fixed link project, intended to demonstrate the harmful effects of that project on the environment and the lack of justification for that project from a traffic, economic and environmental point of view. It cites, in that regard, a study concerning the impact of the fixed link project on traffic and the estimated cost of that project and a transport market study intended to highlight the lack of justification for the fixed link project from a traffic point of view.
30 According to NABU, the protection programmes, campaigns, initiatives and studies upon which it relies directly relate to the region and sector concerned in the present case and the objectives of those programmes, campaigns, initiatives and studies (which are intended to oppose the realisation of the fixed link project) could be jeopardised by the possibility of the contested decision being upheld and the project being allowed to continue.
31 Lastly, NABU submits that it has filed several statements with the German administrative and judicial authorities in relation to the planning approval process for the German hinterland connections. For example, it has filed objections to the planning approval process for the fixed link project in Germany with the German administrative authorities. According to those objections, the environmental repercussions of the project in the region concerned cannot be justified in the light of the fact that there is little need for that project from an economic point of view, and no adequate environmental impact assessment has been carried out in respect of that project. In addition, NABU has brought a complaint against the decision approving the German hinterland connections on the ground that that decision infringed national and EU environmental legislation. According to NABU, its actions before the national authorities could be jeopardised if the contested decision were to be upheld.
32 It should be pointed out at the outset that, regarding the Wallnau Waterbird Reserve, NABU merely indicates, as noted by the Commission, that the reserve is in close proximity to the fixed link project without explaining how the contested decision could jeopardise the nature conservation activities that are carried out in that reserve.
33 However, NABU has demonstrated that it has been involved for several years in a campaign intended to expose to the public the negative effects of the fixed link project on the environment, that it has commissioned two studies concerning the need for that project, and that it is taking steps, before the national authorities, to dispute the project’s impact on the environment.
34 Accordingly, regardless of whether the steps taken before the national authorities by NABU could, in themselves, satisfy the requirement for a direct and existing interest in the result of the case, it must be held that NABU is actively involved in protection programmes or studies relating to the region and sector concerned which will be jeopardised if the contested decision is upheld.
35 The Commission’s arguments have no effect on that conclusion.
36 Regarding the Commission’s argument that, in essence, the studies relied on by NABU may not be taken into account because they are not environmental studies and because those studies have been finalised and therefore cannot be jeopardised by the contested decision being upheld, it should be noted that those studies are relevant because NABU commissioned them in order to oppose the fixed link project which, according to NABU, has a negative impact on the environment, and because, as noted by NABU, the objective of those studies, which are intended to highlight the disadvantages of the fixed link project, will be jeopardised if the contested decision is approved.
37 Lastly, the Commission’s argument that, as the contested decision does nothing more than authorise public funding and has no effect on the applicable environmental legislation, it has no direct effect on the interests defended by NABU, cannot succeed. It does not follow from the case-law cited in paragraph 17 above that, in order to be granted leave to intervene, an association must demonstrate that the contested decision has a direct effect on the interests it is defending, but that it has a direct and existing interest in the result of the case. Given that NABU is seeking, by its actions, to prevent the fixed link project from being completed because of its impact on the environment, it has a direct and existing interest in the annulment of the contested decision, which approves the financing of that project.
38 Consequently, NABU must be granted leave to intervene.
The application for confidential treatment
39 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.
40 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
41 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.
42 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. Naturschutzbund Deutschland e.V. 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 Naturschutzbund Deutschland e.V. 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 Naturschutzbund Deutschland e.V. 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 Naturschutzbund Deutschland e.V. 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.