ORDER OF THE GENERAL COURT (Sixth Chamber)
16 December 2009 (*)
(Aid granted by the Hungarian authorities to certain electricity generators – Power purchase agreements – Intervention – Interest in the result of the case – Confidentiality)
In Case T‑370/08,
Csepeli Áramtermelő kft, established in Budapest (Hungary), represented by Á. Máttyus, K Ferenczi, B. van de Walle de Ghelcke, T. Franchoo and D. Fessenko, lawyers,
applicant,
v
European Commission, represented by L. Flynn, N. Khan and K. Talabér-Ritz, acting as Agents,
defendant,
ACTION for annulment of the Commission’s decision of 4 June 2008 declaring incompatible with the common market the aid granted by the Hungarian authorities to certain electricity generators in the form of long-term power purchase agreements concluded, prior to the accession of the Republic of Hungary to the European Union, between the network operator Magyar Villamos Művek (MVM), owned by the Hungarian State, and certain electricity generators (State Aid C 41/2005 (ex NN 49/2005) – Hungarian ‘Stranded costs’),
THE GENERAL COURT (Sixth Chamber),
composed of A.W.H. Meij (President), V. Vadapalas and T. Tchipev (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 5 September 2008, the applicant brought an action, pursuant to the fourth paragraph of Article 230 EC, seeking annulment of the Commission’s decision of 4 June 2008 declaring incompatible with the common market the aid granted by the Hungarian authorities to certain electricity generators in the form of long-term power purchase agreements concluded, prior to the accession of the Republic of Hungary to the European Union, between the network operator Magyar Villamos Művek (MVM), owned by the Hungarian State, and certain electricity generators (State Aid C 41/2005 (ex NN 49/2005) – Hungarian ‘Stranded costs’) (‘the contested decision’).
2 By document lodged at the Registry on 12 January 2009, Budapesti Erőmű Zártkörűen Működő Részvénytársaság (‘BERT’) applied for leave to intervene in support of the form of order sought by the applicant.
3 The application for leave to intervene was served on the parties on 22 January 2009 in accordance with Article 116(1) of the Rules of Procedure of the Court.
4 By document lodged at the Registry on 11 February 2009, the Commission raised objections to that application and asked the Court to order BERT to pay the costs of the intervention.
5 By document lodged at the Registry on 17 February 2009, the applicant stated that it did not wish to submit any observations on the application for leave to intervene.
6 By letter lodged at the Registry on 17 February 2009, the applicant requested confidential treatment, vis-à-vis BERT, of certain information in its application and in the defence. By letter lodged at the Registry on 3 April 2009, it also requested confidential treatment in relation to certain information in its reply and by letter lodged at the Registry on 3 June 2009, in relation to certain information in its rejoinder. The applicant produced a non-confidential version of its application and its reply. The Commission produced a non-confidential version of the defence and the rejoinder.
7 In accordance with the third subparagraph of Article 116(1) of the Rules of Procedure, the President of the Sixth Chamber referred the decision to the Chamber hearing the case.
The application for leave to intervene
Arguments of the parties
8 BERT submits that it has a direct, existing interest in the result of the case before the Court in the present case for the purposes of the second paragraph of Article 40 of the Statute of the Court of Justice. In that regard, it states that it is affected by the contested decision in the same way as the applicant. Like the applicant, BERT concluded a power purchasing agreement with MVM which is assessed in common with the agreement concluded by the applicant in the contested decision as belonging to the same category and is treated in exactly the same way as all the other agreements in that category as constituting new State aid. The Court’s decision will thus have a direct effect on the treatment of the agreement concluded by BERT.
9 The Commission considers that BERT does not have a direct interest in the result of the case. In that regard, it submits that the contested decision was adopted following a case-by-case assessment and found to be incompatible with the common market the subsidies which the Republic of Hungary granted separately to the individually-named power generators in the form of power purchase agreements. The contested decision thus constitutes a bundle of individual decisions which may only be annulled with respect to the electricity generators which have successfully brought an action before the Court and in any event it remains binding on those electricity generators which have not brought such an action. Since BERT confines itself to drawing similarities between its situation and the applicant’s, it merely has an indirect and potential interest in the result of the case.
Findings of the Court
10 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before this Court by virtue of the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, save in cases between Member States, between institutions of the Union or between Member States and institutions of the Union, are to have the right to intervene in that case.
11 It has consistently been held 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, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The expression ‘result’ of the case is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver (orders in Case 111/63 Lemmerz-Werke v High Authority [1965] ECR 716, at 717; Joined Cases 116/77, 124/77 and 143/77 Amylum and Others v Council and Commission [1978] ECR 893, paragraphs 7 and 9; and Case T‑14/00 Coöperatieve Aan- en Verkoopvereinigung Ulestraten, Schimmert en Hulsberg and Others v Commission [2004] ECR II‑497, paragraph 11 and the case‑law cited).
12 It has also consistently been held that it is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific measure 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 in Case C‑76/93 P Scaramuzza v Commission [1993] ECR I‑5715, paragraph 11; see the order of the President of the Sixth Chamber of the Court in Case T‑80/06 Budapesti Erőmű ‘Zártkörűen Működő Részvénytársaság’ v Commission [2008] ECR II‑0000, paragraph 9 and the case‑law cited).
13 It should be noted in the present case that, as is apparent from recital 153 in the preamble to the contested decision, the Commission made a common assessment, in relation to all the power purchase agreements covered by the contested decision, as to the existence of State aid and the compatibility thereof with the common market. To justify that comprehensive approach the Commission referred to the strong similarities between the governing principles of all the agreements concerned, namely the long-term capacity reservations, the minimum guaranteed off-take and the pricing mechanism aimed at covering fixed, variable and capital costs (recitals 236 and 340). The Commission also considered that the main advantage granted by the agreements at issue was common to all the agreements examined and that, in order accurately to reflect the reality of the Hungarian power generation market, it had to follow a common assessment of all the agreements in its decision (recital 153). Thus, the Commission carried out a comprehensive and objective analysis of the governing principles of those agreements.
14 It is true that that analysis includes several references to the individual agreements which show some of their parameters, such as the date of, and procedure for, their conclusion (recitals 36 to 45), their duration (Table 1), the generation capacity of the power plants concerned (Table 3), their annual electricity production (Table 4), the average sales prices applied on an annual basis by the various electricity generators concerned (recitals 245 to 250) etc., which are generally presented in an exhaustive manner for each agreement in the form of either a list or a table. However, it should be noted that the majority of those references appear in a purely descriptive context (for example in recitals 29 and 36 to 45 and Tables 3 and 4) or are simply aimed at dismissing certain specific arguments and to confirm that certain parts of the Commission’s general reasoning concerning the principles listed apply invariably to all the agreements concerned (see for example recitals 245 to 250 and Table 10).
15 In the circumstances, it must be borne in mind that, in so far as it establishes the existence of State aid and the incompatibility thereof with the common market, the contested decision identifies without distinction the aid elements which are common to all the agreements at issue and then assesses in a comprehensive manner the application of the principles criticised. In spite of the fact that the beneficiaries of the aid found to be unlawful are identified individually in the operative part, the decision none the less adopts a comprehensive approach in relation to all the agreements considered. Therefore, contrary to what the Commission contends, its decision concerning the existence of State aid and the incompatibility thereof with the common market cannot be regarded as a bundle of individual decisions concerning each of the agreements identified in the operative part separately.
16 It follows that BERT, as a party to such an agreement, has a direct, existing interest in the result of the case for the purposes of the second paragraph of Article 40 of the Statute of the Court of Justice. Consequently, its application for leave to intervene must be granted.
17 Since the notice in the Official Journal referred to in Article 24(6) of the Rules of Procedure was published on 22 November 2008, the application to intervene was made within the time‑limit laid down in Article 115(1) of those rules and the rights of the intervener are those set out in Article 116(2) to (4) of the Rules of Procedure.
The applications for confidential treatment
18 The applicant has requested confidential treatment, vis-à-vis BERT, of certain information contained in the file.
19 At this stage in the proceedings, the procedural documents served on the parties which BERT is to receive must be restricted to the non-confidential versions produced by the applicant and the Commission. A decision on whether the request for confidential treatment if justified will, if necessary, be taken at a later stage in the light of any objections or observations which might be submitted in that regard.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. Budapesti Erőmű Zártkörűen Működő Részvénytársaság is granted leave to intervene in Case T‑370/08 in support of the form of order sought by the applicant, Csepeli Áramtermelő kft.
2. The Registrar shall communicate to the intervener the non-confidential versions of every document served on the parties.
3. A period shall be prescribed within which the intervener may submit any observations on the request for confidential treatment. The decision on whether that request is justified is reserved.
4. A period shall be prescribed within which the intervener may submit a statement in intervention, without prejudice to its right to supplement that statement if necessary following a decision on the merits of the request for confidential treatment.
5. Costs are reserved.
Luxembourg, 16 December 2009.