ORDER OF THE GENERAL COURT (Sixth Chamber)
25 October 2011(*)
(Intervention – Interest in the outcome of the case)
In Case T‑28/11,
Koninklijke Luchtvaart Maatschappij NV, established in Amstelveen (Netherlands), represented by M. Smeets, lawyer,
applicant,
v
European Commission, represented by S. Noë, N. von Lingen, acting as Agents, and by B. Doherty, Barrister,
defendant,
APPLICATION for annulment of European Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight), and, in the alternative, for annulment or reduction of the fine imposed on the applicant,
THE GENERAL COURT (Sixth Chamber)
composed of E. Moavero Milanesi, President, N. Wahl (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 By Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight) (‘the contested decision’), the European Commission established the existence of a cartel between a large number of airlines, including Koninklijke Luchtvaart Maatschappij NV, concerning airfreight services (‘the cartel in question’).
2 By application lodged at the Registry of the Court on 23 January 2011, the applicant, Koninklijke Luchtvaart Maatschappij, brought an action for annulment of the contested decision in so far as it concerns it and, in the alternative, for a reduction in its fine.
3 By document lodged at the Registry of the Court on 15 April 2011, Schenker AG, a company established in Essen (Germany), the parent company of a group of companies providing road, air and maritime transport services and related services worldwide, applied to intervene in this case in support of the form of order sought by the Commission.
4 That application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.
5 The applicant and the Commission submitted their written observations on that application to intervene by documents lodged at the Registry of the Court on 16 and 17 June 2011 respectively.
Law
Arguments of the parties
6 In order to establish that it has an interest in the outcome of the case, Schenker claims that it has a legal, economic and real interest in having the contested decision upheld.
7 Schenker submits that it is directly affected by the collusive practices of the members of the cartel as a customer of those members, including of the applicant. As a provider of logistics services, it was forced to pay considerable fuel and security surcharges. Consequently, by paying those surcharges, it suffered heavy economic losses. It refers on this point to the existence of framework agreements concluded by it or its subsidiaries with certain members of the cartel in question.
8 Moreover, as a customer of certain members of the cartel, it has a direct interest in the final termination of the cartel in question and the prevention of its reoccurrence. According to Schenker, an undertaking affected by a cartel has a protected interest in having upheld the decision which establishes the existence of the cartel and fines its members. Consequently, an undertaking affected by a cartel, such as Schenker, should be granted leave to intervene when one of the cartel members seeks the annulment of such a decision.
9 Lastly, Schenker has a direct and existing interest in having the contested decision upheld, since that decision forms the legal basis of an action for damages that it intends to bring before the national courts for infringement of the competition rules. In this respect, it explains that it intends to claim damages before the national courts on account of payment of surcharges imposed by the members of the cartel in question. Moreover, it claims that, on 7 April 2011, the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) served on it an originating application in the context of proceedings initiated by Société Air France-KLM, Koninklijke Luchtvaartmaatschappij NV and Martinair Holland NV. The purpose of that document instituting proceedings is to obtain a declaration from that court that the applicants are not liable vis-à-vis Schenker.
10 The applicant is opposed to Schenker’s being granted leave to intervene. The Commission has expressed reservations as to Schenker’s interest in intervening.
Findings of the Court
11 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which, pursuant to the first paragraph of Article 53 thereof, is applicable to the procedure before the General Court, any person establishing an interest in the result of a case other than a case between Member States, between institutions of the Union or between Member States and institutions of the Union is entitled to intervene in that case.
12 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 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. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested act and whether his interest in the result of the case is established (see order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26 and the case‑law cited).
13 As was observed in paragraphs 7 to 9 above, Schenker states that it has an interest in the granting of the form of order sought by the Commission to have the contested decision upheld, because it is a customer of the members of the cartel in question and an alleged victim of that cartel. In support of its arguments, Schenker relies on several orders of the Court of Justice and the General Court.
14 It is true that it is apparent from the case‑law cited by Schenker that the Courts of the European Union have granted certain undertakings leave to intervene in competition cases, in particular where the intervention concerned:
– legal entities forming part of the same economic entity as that to which the applicant belonged, which had themselves been held to be jointly and severally liable (order of 17 February 2010 in Case T‑587/08 Fresh Del Monte Produce v Commission, not published in the ECR, and order of the President of the Fifth Chamber of 2 July 2010 in Case T‑384/09 SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, not published in the ECR);
– competitors of an undertaking which was accused of abusing a dominant position within the meaning of Article 102 TFEU (order of the President of 21 February 2008 in Case C‑385/07 P Duales System Deutschland v Commission, not published in the ECR, and order of the President in Case T‑65/98 R Van den Bergh Foods v Commission [1998] ECR II‑2641);
– associations composed of competitors or customers which opposed the alleged anti‑competitive agreements containing restrictive clauses in their regard (order in Case 71/74 INTERV. Nederlandse Vereniging voor de Fruit- en Groentenimporthandel and Frubo v Commission [1974] ECR 1095);
– parties which actively participated in the administrative procedure before the Commission and/or had filed the complaint which led to the Commission’s investigation and to the adoption of the contested decision (order in Van den Bergh Foods v Commission);
– associations representing a large number of operators active in the sector concerned whose object included the protection of the interests of its members, since the case was capable of raising questions of principle affecting the functioning of the sector concerned, and the interests of its members were therefore capable of being affected to an appreciable extent by the judgment to be given (see order of the President of the First Chamber in Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑479, paragraph 15 and the case-law cited).
15 In the first place, the Court would point out that Schenker’s argument that it has an interest in obtaining the final termination of the cartel and the prevention of its reoccurrence does not constitute 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. First of all, the interest alleged is too general and does not constitute ‘a direct, existing interest in the result of the case’ for the purposes of that provision. Next, the obligation on the participants in the cartel in question to bring to an end their anti‑competitive practices is meaningful only to the extent that they have not already done so. Moreover, the action does not refer to that part of the operative part of the contested decision. In addition, the obligation to refrain from the same or similar conduct in the future also flows from the prohibition referred to in Article 101 TFEU.
16 Next, the situation of the undertakings that are referred to in paragraph 14 above is not comparable to Schenker’s situation. In those cases, the result of the case had a direct impact on the economic freedom of action of the applicants for leave to intervene and, therefore, on their commercial activity. Moreover, most of those applicants for leave to intervene had either filed a complaint with the Commission or participated in the administrative procedure.
17 In the present case, it has not been established that the outcome of the case is liable to harm Schenker’s commercial activity of supplying logistics services. The contested decision does not concern exclusivity agreements or similar practices foreclosing the market. Moreover, the outcome of this case will also not affect the capacity of downstream customers to conclude contracts with Schenker or their interest in doing so, or alter Schenker’s contractual rights and obligations vis-à-vis the applicant. Lastly, the Court would point out that Schenker has never filed a complaint with the Commission concerning the conduct referred to in the contested decision and did not participate in any manner whatsoever in the administrative procedure before the Commission.
18 Contrary to the claim made by Schenker, the fact that an undertaking might possibly be affected by high prices caused by an alleged cartel does not mean that it has a right to intervene in a case in which the undertakings accused of participating in the cartel challenge the legality of the decision establishing and punishing the alleged cartel. The objective of an intervention such as that in the present case is not to ensure the economic freedom of the intervener’s commercial activity. The object of such intervention, which is to support a decision which established and punished an alleged cartel, is solely to ensure that it is possible to claim at a later stage before national courts or non‑Member State courts payment of damages by the undertakings alleged to have participated in the cartel.
19 Moreover, it must be stated that Schenker is just one of a very large number of undertakings which might potentially have been affected by the alleged cartel in question and that it is not distinguished from the other consumers of airfreight services.
20 Thus, in Case T‑29/92 SPO and Others v Commission [1993] ECR II‑1, the Court examined to what extent the intervener’s situation differed from that of other consumers, notwithstanding the fact that an action in which the applicants and the intervener were involved was pending before a national court, and the circumstance that the result of the case to which the intervener was a party before the national court depended on the legality of the Commission’s decision which was the subject of the action before the Court. The Court found that that circumstance was not sufficient to establish a direct and existing interest in the result of the case. The application to intervene was granted because the intervener was distinguished from other consumers by the fact that, before the Commission adopted the decision in question, it had taken measures to safeguard its rights.
21 That case-law also applies in the situation, such as in this case, in which the applicant for leave to intervene has merely made known his intention to bring actions for damages before national courts.
22 Whether or not, on the date of its application, Schenker had brought an action for damages, it is apparent from the foregoing considerations that Schenker was required to establish that it had an interest going beyond that of the other consumers of airfreight services which might bring actions for damages and it failed to so in the present case.
23 The fact that an originating application was served on Schenker in the context of proceedings initiated by Air France, KLM and Martinair does not alter that finding. It cannot be inferred from this that Schenker is distinguished from the other customers of the cartel members which might have been harmed by the cartel. In this respect, the Court would point out that those proceedings were brought in response to Schenker’s threat to bring actions inter alia before courts in the United States. The proceedings brought before the District Court, Amsterdam, seek to safeguard the exclusive jurisdiction of that court as well as the law applicable to any disputes, as agreed in their respective contracts, between the aforementioned undertakings and Schenker.
24 In addition, in contrast to the case which gave rise to the order in SPO and Others v Commission, Schenker’s legal situation does not depend directly on the final decision in this case.
25 It must be pointed out in this respect that the adoption of a decision confirming that undertakings participated in a cartel is neither a necessary nor a sufficient condition for a successful claim for damages.
26 Agreements and concerted practices caught by Article 101(1) TFEU which do not satisfy the conditions of Article 101(3) TFEU are prohibited, no prior decision to that effect being required. As the Commission stated, Schenker’s right to claim damages as compensation for losses caused by anti‑competitive practices adopted in breach of Article 101 TFEU can be exercised independently of any prior decision by the Commission.
27 Lastly, the purpose of the present proceedings is not to make possible or facilitate the bringing of civil actions in the national legal system, such as claims for damages. Their purpose is to review the legality of the decision by which the Commission punished the undertaking in question for infringing the rules of competition law and to review the amount of the fine consequently imposed on it.
28 Accordingly, since Schenker has failed to establish the existence of a direct, existing interest in the result of the case, its application to intervene must be dismissed.
Costs
29 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 closing the proceedings. Since the present order closes the proceedings with respect to Schenker, it is appropriate to give a decision on the costs relating to its application to intervene.
30 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since no application for costs has been made with respect to Schenker, it must be ordered to bear its own costs, and the Commission and Koninklijke Luchtvaart Maatschappij must also be ordered to bear their own costs incurred in connection with Schenker’s application to intervene.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. Schenker AG’s application to intervene is dismissed.
2. Schenker shall bear its own costs.
3. The European Commission and Koninklijke Luchtvaart Maatschappij NV shall each bear its own costs.
Luxembourg, 25 October 2011.
E. Coulon | | E. Moavero Milanesi |