ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
7 November 2012 (*)
(Intervention – Request for confidential treatment)
In Case T‑486/11,
Telekomunikacja Polska SA, established in Warsaw (Poland), represented initially by M. Modzelewska de Raad, P. Paśnik, S. Haubourg, lawyers, C. Vajda QC and A. Howard, Barrister, and subsequently by M. Modzelewska de Raad, P. Paśnik, S. Hautbourg, lawyers, and A. Howard, Barrister,
applicant,
v
European Commission, represented by K. Mojzesowicz, G. Koleva and L. Malferrari, acting as Agents,
defendant,
ACTION for annulment of the 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 found that Telekomunikacja Polska SA (‘TP’), the sole supplier of wholesale Local Loop Unbundling (‘LLU’) services and Bitstream Access (‘BSA’) services for broadband internet access in Poland, had infringed Article 102 TFEU by refusing access to its network and by supplying wholesale BSA and LLU products to alternative operators on the fixed broadband internet access retail market; on that basis, the Commission imposed a fine on TP in the amount of EUR 127 554 194.
2 By application lodged at the Court Registry on 2 September 2011, TP brought an action, registered as Case T-486/11, seeking, principally, annulment of the contested decision and, in the alternative, annulment or reduction of the fine imposed.
3 Pursuant to Article 24(6) of the Rules of Procedure of the General Court, a summary of the application initiating proceedings 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 Court Registry on 28 December 2011, Polska Izba Informatyki i Telekomunikacji (‘PIIT’) applied for leave to intervene in support of the form of order sought by TP.
5 By document lodged at the Court Registry on 30 January 2012, the Commission raised objections to that intervention.
6 By document lodged at the Court Registry on 31 January 2012, TP stated that it had no objections to PIIT being granted leave to intervene in support of the form of order sought by TP.
Law
7 Under 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 party which can establish an interest in the result of a case submitted to the Court, with the exception of cases between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in a case.
8 The concept of an interest in the result of the case 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 put forward (see, to that effect, order 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 in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26).
9 According to settled case-law, representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members have such an interest (see, to that effect, orders of the President of the Court of Justice 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). Specifically, an association may be granted leave to intervene in a case if: (i) it represents an appreciable number of operators 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 judgment to be given (see order of the President of the First Chamber of the Court in Case T‑253/02 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑479, paragraph 15 and the case-law cited). That broad interpretation of the right to intervene is intended to facilitate assessment of the context of such cases whilst preventing 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).
10 In the present case, it is appropriate, first, to note that PIIT is a body representing operators active in the telecommunications sector in Poland.
11 PIIT states that that sector covers activities in internet technologies, computerisation, telecommunications, digital television, electronic services, electronic administration, finance and banking, tariffs, personal data, the energy sector, commercial information, environment protection, patents, taxes, intellectual property rights and public procurement.
12 The Commission argues that only a handful of the undertakings which are members of PIIT are active on the wholesale broadband markets affected by the contested decision and that, where they are present on such markets, their market shares are extremely limited, with the exception of TP’s share. Furthermore, according to the Commission, TP’s main competitors on those markets are not members of PIIT. It follows that, contrary to the assertions made by PIIT, PIIT does not represent an appreciable number of operators active in the sector concerned by the contested decision.
13 However, as has been stated in paragraph 7 above, the right to intervene in a case before the Court – other than in cases between Member States, between institutions of the European Union or between Member States and institutions of the European Union – is available to any party which can establish an interest in the result of that case.
14 It follows that, in the context of an action brought by an undertaking for annulment of a Commission decision finding that that undertaking had infringed Article 102 TFEU, the right to intervene cannot be restricted so as to cover only competitors on the market in which the infringement was found.
15 Accordingly, contrary to the contentions of the Commission, PIIT’s representativeness in the sector concerned cannot, for the purposes of the case-law cited in paragraph 9 above, be assessed solely with reference to the wholesale and retail broadband internet access markets in Poland; rather, it must be assessed with reference to all telecommunications activities which are, by their nature, liable to be affected by a decision concerning the single Polish operator on the broadband internet market.
16 As it is, it is not in dispute that PIIT – which, on 21 December 2011, represented 143 operators active in the telecommunications sector in Poland – is representative of the operators active in that sector. Accordingly, PIIT must be regarded as an association which is representative of an appreciable number of operators active in the sector concerned.
17 Secondly, under Article 1 of PIIT’s Statutes, one of the objects of that association is to defend the economic interests of its members.
18 Thirdly, it should be noted that the present dispute concerns the lawfulness of a decision by which the Commission found that the practices engaged in by TP – the only operator on the wholesale broadband internet access market in Poland – consisting, between 3 August 2005 and 22 October 2009, in preventing its competitors on the retail broadband internet access market from accessing its products 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, in consequence, the interests of PIIT’s members may be affected to an appreciable extent by the judgment to be given.
19 In the light of the foregoing, it must be held that PIIT has duly established its interest in the result of the case. Furthermore, PIIT’s application for leave to intervene has been produced in accordance with Article 115 of the Rules of Procedure. Accordingly, it must be granted leave to intervene, 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 of that Statute.
20 The notice given in the Official Journal of the European Union, referred to in Article 24(6) of the Rules of Procedure, having been published on 19 November 2011, the application for leave to intervene was made within the time allowed under Article 115(1) of those Rules and the rights of the intervener are to be those laid down in Article 116(2), (3) and (4) of the Rules of Procedure.
21 TP has asked that, in accordance with Article 116(2) of the Rules of Procedure, certain confidential aspects of the file be withheld when the procedural documents are communicated to the interveners and, for the purposes of that communication, has produced a non-confidential version of the documents or pleadings in question.
22 At this stage, communication to the interveners of the procedural documents served – or, as the case may be, to be served – on the parties must therefore be restricted to a non-confidential version. A decision on the merits of the application for confidential treatment will, as appropriate, be taken at a later stage, in the light of any objections or observations which may be made in that regard.
Costs
23 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 which closes the proceedings.
24 At this stage of the proceedings, the costs must therefore be reserved.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. Polska Izba Informatyki i Telekomunikacji is granted leave to intervene in Case T‑486/11 in support of the form of order sought by Telekomunikacja Polska SA.
2. The Registrar shall communicate to the intervener a non-confidential version of each procedural document served on the parties.
3. A period shall be prescribed within which the intervener is to submit its observations, if any, on the application for confidential treatment. The decision on the merits of that application is reserved.
4. A period shall be prescribed within which the intervener is to submit a statement in intervention, without prejudice to the fact that it may, if appropriate, supplement that statement at a later stage, following a decision on the merits of the application for confidential treatment.
5. The costs are reserved.
Luxembourg, 7 November 2012.