ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
7 May 2020 (*)
(Procedure — Intervention — Action for annulment — No interest in the result of the case — Rejection)
In Case T‑609/19,
Canon Inc., established in Tokyo (Japan), represented by U. Soltész, W. Bosch, C. von Köckritz, K. Winkelmann, M. Reynolds, J. Schindler, D. Arts and W. Devroe, lawyers,
applicant,
v
European Commission, represented by G. Conte, C. Urraca Caviedes and T. Vecchi, acting as Agents,
defendant,
supported by
Council of the European Union, represented by A.-L. Meyer and O. Segnana, acting as Agents,
intervener,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2019) 4559 final of 27 June 2019 imposing fines for failing to notify a concentration in breach of Article 4(1) of Council Regulation No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) and for implementing a concentration in breach of Article 7(1) of that regulation (Case M.8179 — Canon v Toshiba Medical Systems Corporation) (summarised in OJ 2019 C 362, p. 8) and, in the alternative, for annulment or reduction of the amount of the fines imposed on the applicant,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and proceedings
1 On 27 June 2019, the Commission adopted Decision C(2019) 4559 final, imposing on Canon two fines for failing to notify a concentration in violation of Article 4(1) of Council Regulation No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) and for implementing a concentration in breach of Article 7(1) of that regulation (Case M.8179 — Canon v Toshiba Medical Systems Corporation) (‘the contested decision’).
2 According to the contested decision, at the beginning of 2016, with a view to overcoming serious financial difficulties before the publication of its financial results for the financial year 2016, Toshiba Corporation (‘the applicant for leave to intervene’) decided to sell its subsidiary Toshiba Medical System Corporation (‘TMSC’), an undertaking which it wholly owned and which is specialised in the medical field. In order to obtain consideration for the sale of TMSC before 31 March 2016, the applicant for leave to intervene organised an accelerated tender procedure in which the applicant’s tender was accepted and which used a two-step transaction structure involving a temporary buyer.
3 On 19 September 2016, the Commission adopted a decision under Article 6(1)(b) of Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area (‘the EEA Agreement’) declaring the concentration compatible with the internal market and with the EEA Agreement.
4 By application lodged at the Court Registry on 9 September 2019, the applicant brought the present action by which it requests the Court to annul the contested decision or, in the alternative, to annul or reduce the fines imposed.
5 By document lodged at the Court Registry on 6 January 2020, Toshiba Corporation applied for leave to intervene in the present case in support of the form of order sought by the applicant.
6 The application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
7 By document lodged at the Court Registry on 31 January 2020, the applicant did not raise any objections in relation to the application for leave to intervene.
8 By document lodged at the Court Registry on 17 February 2020, the Commission raised objections to the application for leave to intervene and asked the Court to reject it. The Commission also requested that the applicant for leave to intervene be ordered to pay the costs relating to that application.
The application for leave to intervene
9 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 which can establish an interest in the result of a case other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.
10 The concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, 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 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 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 18 and the case-law cited).
11 It is necessary to apply a rigorous distinction between prospective interveners establishing a direct interest in the ruling on the specific act 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 of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 19 and the case-law cited).
12 In principle, an interest in the result of the case can be regarded as sufficiently direct only to the extent that that result is such as to alter the legal position of the applicant for leave to intervene (order of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 20 and the case-law cited).
13 However, an economic operator does not have a direct interest to intervene in a case to which another economic operator in a similar situation is a party and which could give rise to a judgment whose grounds might influence the manner in which the Union institution at issue would be likely to assess the situation, which, moreover, is different, of the applicant for leave to intervene (order of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 21 and the case-law cited).
14 In addition, it is for the applicant for leave to intervene to adduce the necessary evidence to prove that it satisfies the conditions set out in paragraph 9 above (order of 27 April 2018, E-Control v ACER, T‑332/17, not published, EU:T:2018:294, paragraph 16).
15 In the present case, the applicant for leave to intervene claims that it has a direct, existing interest in intervening in support of the action brought by the applicant.
16 First, the applicant for leave to intervene, as the parent company of TMSC, actively participated in the administrative procedure in so far as it submitted to the Commission a number of internal documents and provided it with numerous explanations. In particular, it stresses that it asked the Commission for copies of the statement of objections and of the supplementary statement of objections and submitted its comments thereto. Secondly, the documents and explanations provided by the applicant for leave to intervene were misinterpreted in the contested decision. Thirdly, if the contested decision were to be confirmed by the Court, there is a risk that the activities of the applicant, which is a multinational company offering a wide range of products and services, could be significantly affected, requiring it to adapt to that new interpretation of Articles 4 and 7 of Regulation No 139/2004, even when concluding simple contracts. Thus, the action brought by the applicant safeguards the interests of the applicant for leave to intervene with regard to the outcome of potential future proceedings before the Court.
17 The applicant supports the arguments of the applicant for leave to intervene. It is apparent from the case-law, particularly in the area of concentrations, that an applicant for leave to intervene may have an interest in intervening against a decision of the Commission of which it is not the addressee.
18 The Commission disputes the arguments put forward by the applicant for leave to intervene. The latter has no direct, existing interest in the ruling on the forms of order sought by the applicant; rather, it has only a vague interest in the points of law raised by the applicant.
19 As a preliminary point, it should be noted that it is not disputed that the contested decision imposed two fines on the applicant alone, one under Article 4 of Regulation No 139/2004 and the other under Article 7 of that regulation, and did not call into question the compatibility of the concentration authorised by the Commission on 19 September 2016 between the applicant and TMSC.
20 As recalled in paragraph 10 above, the concept of interest in the result of the case must be defined in the light of the result of a case as set out in the operative part of the future judgment or order.
21 In the present case, the operative part of the future judgment or order may only confirm or annul the contested decision by which the applicant alone was ordered to pay two fines, or confirm, annul or modify the amounts of such fines.
22 Accordingly, the applicant for leave to intervene does not have 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.
23 The arguments of the applicant for leave to intervene do not call that finding into question.
24 First, as regards the participation of the applicant for leave to intervene in the procedure which resulted in the contested decision, it should be noted that such participation is not sufficient, in and of itself, for establishing that it has a direct, existing interest in the result of the case (order of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 28 and the case-law cited).
25 Secondly, as regards the alleged misinterpretation, in the contested decision, of the documents and explanations provided by the applicant for leave to intervene, the latter puts forward three examples. According to the first example, recital 14 of the contested decision erroneously states that the transaction structure proposed by the applicant was considered by the applicant for leave to intervene to be complex and risky from a competition law perspective. According to the second example, recital 12 of the contested decision is wrong in stating that the rationale behind that transaction structure was to secure Toshiba’s full consideration for TMSC’s sale before March 2016, while not formally acquiring control before obtaining the necessary clearances from the relevant competition authorities. As for the third example, according to the applicant for leave to intervene, the document cited in footnote 227 of the contested decision did not add anything to the debate.
26 However, the applicant for leave to intervene fails to demonstrate, explain or even argue that its interests were undermined by any of these three examples.
27 In particular, the applicant for leave to intervene does not demonstrate how the alleged misinterpretation is liable to undermine its commercial activity (see, a contrario, order of the General Court of 28 November 2013, Ryanair v Commission, T‑260/13, not published, EU:T:2013:672, paragraph 14).
28 If that argument of the applicant for leave to intervene was intended to be understood as a risk of damage to its reputation, it should, in any event, be recalled that it would also be for the applicant for leave to intervene to establish such risk (see order of 26 April 2018, Valencia Club de Fútbol v Commission, T‑732/16, EU:2018:237, paragraph 17 and the case-law cited).
29 If that argument of the applicant for leave to intervene was intended to be understood as a risk that it would incur liability in the context of administrative or legal proceedings, it should be recalled that a future and hypothetical event is not, in itself, capable of establishing a direct, existing interest in the result of the case (see order of 26 April 2018, Valencia Club de Fútbol v Commission, T‑732/16, EU:2018:237, paragraph 22 and the case-law cited).
30 Third, with regard to the argument of the applicant for leave to intervene that, as a multinational company offering a wide range of products and services, it may in the future find itself in a situation similar to that of the applicant, it is sufficient to note that that simple fact confers on it only an indirect interest in the result of the case (see order of 26 April 2018, Valencia Club de Fútbol v Commission, T‑732/16, EU:2018:237, paragraph 16 and the case-law cited).
31 Neither is the case-law to which the applicant refers capable of calling into question the finding made in paragraph 21 above.
32 Thus, as regards the applicant’s reference to paragraph 27 of the Court’s judgment of 5 September 2014 (Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739), from which it is apparent that two companies were granted leave to intervene in that case in support of the forms of order sought by the Commission, it should be noted that, by means of the contested decision in that instance, the Commission had accepted, in the context of a concentration, the acquisition of shares by the first company, and that the second company benefited from an exclusive agreement to repurchase those shares from the first company. It is therefore clear that those companies had an interest in intervening, in support of the Commission, in the context of an appeal against that Commission decision.
33 The same applies to the applicant’s reference to paragraph 28 of the Court’s judgment of 19 June 2009 (Qualcomm v Commission, T‑48/04, EU:T:2009:212). It is clear that the companies between which the concentration had been accepted by decision of the Commission had an interest in intervening in support of the latter in the context of an action brought against that decision.
34 Lastly, the applicant refers to paragraph 19 of the Court’s judgment of 6 July 2010, Ryanair v Commission (T‑342/07, EU:T:2010:280). In that regard, it is also clear that a company party to a proposed concentration has an interest in intervening in support of the appeal brought by the other company party to that project against the Commission decision refusing that concentration.
35 Unlike those cases, in the present case, as pointed out in paragraph 18 above, the contested decision has no direct consequences for the applicant for leave to intervene. None of the arguments put forward by the applicant for leave to intervene are capable of calling that finding into question.
36 In the light of the foregoing, the application for leave to intervene must be dismissed.
Costs
37 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings as far as the applicant for leave to intervene is concerned, a decision should be made on the costs relating to its application.
38 Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
39 In the present case, since the applicant for leave to intervene has been unsuccessful, it must be ordered to bear its own costs and pay those incurred by the Commission, in accordance with the form of order sought by the latter.
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Toshiba Corporation’s application for leave to intervene is dismissed.
2. Toshiba shall bear the Commission’s costs relating to the application for leave to intervene, as well as its own costs.
Luxembourg, 7 May 2020.