Language of document : ECLI:EU:C:2021:488

ORDER OF THE PRESIDENT OF THE COURT

4 June 2021 (*)

(Appeal – Intervention – EFTA Surveillance Authority – Application made after the expiry of the period laid down in Article 190(2) of the Rules of Procedure of the Court, but before the decision to open the oral part of the procedure – Grant of application for leave to intervene)

In Case C‑376/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 August 2020,

European Commission, represented initially by G. Conte, C. Urraca Caviedes, J. Szczodrowski and M. Farley, and subsequently by G. Conte, C. Urraca Caviedes, J. Szczodrowski, M. Farley and F. Castillo de la Torre, acting as Agents,

appellant,

the other parties to the proceedings being:

CK Telecoms UK Investments Ltd, established in London (United Kingdom), represented initially by B. Kennelly, Senior Counsel, T. Wessely, Rechtsanwalt, O.W. Brouwer, advocaat, A. Müller, advocate, M. Davis, S. Prichard, A. Coe, J. Aitken and K. Asakura, Solicitors, and subsequently by B. Kennelly, Senior Counsel, T. Wessely, Rechtsanwalt, O.W. Brouwer, advocaat, A. Müller, advocate, M. Davis, A. Coe, J. Aitken and K. Asakura, Solicitors,

applicant at first instance,

United Kingdom of Great Britain and Northern Ireland, represented initially by S. Brandon, and subsequently by F. Shibli and S. McCrory, acting as Agents,

EE Ltd,

interveners at first instance,

THE PRESIDENT OF THE COURT

having regard to the proposal of A. Arabadjiev, Judge-Rapporteur,

after hearing the Advocate General, G. Pitruzzella,

makes the following

Order

1        By its appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (T‑399/16, EU:T:2020:217), by which the General Court annulled Commission Decision C(2016) 2796 final of 11 May 2016 declaring incompatible with the internal market the concentration resulting from the acquisition of Telefónica Europe plc by Hutchison 3G UK Investments Ltd (Case COMP/M.7612 – Hutchison 3G UK/Telefónica UK).

2        By document lodged at the Court Registry on 24 March 2021 on the basis of the third paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 130 of the Rules of Procedure of the Court of Justice, applicable to the appeal proceedings under Article 190(1) of those rules, the EFTA Surveillance Authority applied for leave to intervene in the present case in support of the form of order sought by the Commission. That authority submits, first, that the subject matter of the present dispute, to which its application to intervene relates, falls within the scope of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’). Secondly, that authority observes that, although that application was made after the expiry of the period laid down in Article 190(2) of the Rules of Procedure, it was nonetheless lodged before the decision to open the oral part of the procedure provided for in Article 60(4) of those rules.

3        After the EFTA Surveillance Authority’s application to intervene was served on the parties by the Registrar of the Court of Justice, pursuant to Article 131(1) of the Rules of Procedure, applicable to the appeal proceedings under Article 190(1) of those rules, only CK Telecoms UK Investments submitted its observations on that application to intervene, without specifying any secret or confidential items or documents which would be liable to affect it adversely if communicated to that authority. That undertaking submits that even though that application to intervene may rightly be based on the third paragraph of Article 40 of the Statute of the Court of Justice of the European Union, it nevertheless questions whether that authority has a genuine interest in intervening in the present proceedings because, inter alia, that authority has never in fact been called upon to control concentrations under Article 57(2) of the EEA Agreement. That undertaking adds that the EFTA Surveillance Authority lodged its application to intervene after the expiry of the period laid down in Article 190(2) of the Rules of Procedure for that purpose.

 The application to intervene

4        It should be noted, as a preliminary point, that the first to third paragraphs of Article 40 of the Statute of the Court of Justice of the European Union provide for three separate categories of interveners, each of which is subject to specific rules.

5        The third paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which applies to the States, other than the Member States, which are parties to the EEA Agreement, and to the EFTA Surveillance Authority referred to in that agreement, provides that they may intervene in cases before the Court where one of the fields of application of that agreement is concerned.

6        It follows from the latter provision that the admissibility of an application for leave to intervene made by a third State which is a party to the EEA Agreement, or by the EFTA Surveillance Authority, cannot be subject to any condition other than that the subject matter of the case to which that application for leave to intervene relates must fall within the scope of that agreement. Accordingly, the abovementioned States and the EFTA Surveillance Authority must be allowed to intervene in cases before the Court, without having to establish a particular interest, when those disputes concern one of the fields of application of the EEA Agreement (order of 18 December 2020, Commission v Austria, C‑328/20, EU:C:2020:1068, paragraph 8).

7        It must be held that that condition is satisfied in the present case. It is sufficient to recall, first, that, by Decision C(2016) 2796 final, the Commission declared a concentration between undertakings incompatible with the internal market and, second, that, as is apparent from Article 57 of the EEA Agreement, the control of concentrations within the meaning of that agreement may, in certain cases and subject to certain conditions, be carried out by the EFTA Surveillance Authority. In addition, the Commission’s review of the transaction at issue was carried out in the light of the provisions of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), which was incorporated into the EEA Agreement, as is apparent from Annex I to Decision of the EEA Joint Committee No 78/2004 of 8 June 2004 amending Annex XIV (Competition), Protocol 21 (on the implementation of competition rules applicable to undertakings), Protocol 22 (concerning the definition of ‘undertaking’ and ‘turnover’ (Article 56)) and Protocol 24 (on cooperation in the field of control of concentrations) to the EEA Agreement (OJ 2004 L 219, p. 13).

8        As regards the fact that the EFTA Surveillance Authority lodged its application to intervene after the expiry of the period referred to in Article 190(2) of the Rules of Procedure but before the decision to open the oral part of the procedure, it should be borne in mind that, in accordance with Article 129(4) of the Rules of Procedure, applicable to the appeal proceedings under Article 190(1) of those rules, ‘consideration may be given’ to an application to intervene which is made after the expiry of that period but before the decision to open the oral part of the procedure.

9        Therefore, if consideration is given to such an application, the exceedance of that period merely deprives the intervener of the possibility of submitting a statement in intervention pursuant to Article 132(1) of the Rules of Procedure, applicable to the appeal proceedings under Article 190(1) of those rules, but still makes it possible for that intervener to submit its observations during the hearing, if it takes place (order of the President of the Court of 25 October 2017, Xellia Pharmaceuticals and Alpharma v Commission, C‑611/16 P, not published, EU:C:2017:825, paragraph 6).

10      In the present case, it is appropriate to give consideration to the application to intervene made by the EFTA Surveillance Authority pursuant to Article 129(4) of the Rules of Procedure and, therefore, to allow its intervention in support of the form of order sought by the Commission, in accordance with the third paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 131(4) of the Rules of Procedure, applicable to the appeal proceedings under Article 190 of those rules.

11      Pursuant to Article 129(4) of the Rules of Procedure, the EFTA Surveillance Authority may submit its observations during the hearing, if it takes place.

12      In addition, pursuant to Article 131(4) of the Rules of Procedure, it is to receive a copy of every procedural document served on the parties.

 Costs

13      Under Article 137 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings.

14      In the present case, since the application to intervene made by the EFTA Surveillance Authority has been granted, the costs relating to its intervention must be reserved.

On those grounds, the President of the Court hereby orders:

1.      The EFTA Surveillance Authority is granted leave to intervene in Case C376/20 P in support of the form of order sought by the European Commission.

2.      The EFTA Surveillance Authority is authorised to submit its observations during the hearing, if it takes place.

3.      A copy of all the procedural documents will be served on the EFTA Surveillance Authority.

4.      The costs relating to the intervention of the EFTA Surveillance Authority are reserved.

Luxembourg, 4 June 2021.

A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.