ORDER OF THE VICE-PRESIDENT OF THE COURT
7 September 2022 (*)
(Interim relief – Appeal – Application to intervene – Interest in the result of the case – Public procurement – Successful tenderer – Grant of application to intervene)
In Case C‑478/22 P(R)‑R,
APPLICATION for suspension of operation and other interim measures under Articles 278 and 279 TFEU, brought on 17 July 2022,
Telefónica de España SA, established in Madrid (Spain), represented by J. Blanco Carol and F. González Díaz, abogados, and P. Stuart, Barrister,
applicant,
the other party to the proceedings being:
European Commission, represented by L. André and M. Ilkova, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its application for interim measures, Telefónica de España SA claims, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice, that the Court of Justice should:
– order the suspension of operation of the order of the President of the General Court of the European Union of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), by which the General Court dismissed its application seeking, first, suspension of the operation of the decision of the European Commission of 21 January 2022 relating to the call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, informing the applicant that its tender had not been successful in the procurement procedure and announcing the imminent signing of a contract with the successful tenderer (‘the contested decision’) and, secondly, an order requiring the European Commission to suspend the signing of that contract;
– order the Commission to suspend the award of contracts in the call for tenders DIGIT/A 3/PR/2019/010 pending a ruling from the General Court in Case T‑170/22;
– order the Commission to suspend the signing of a contract in that call for tenders;
– grant any other appropriate interim measures; and
– order the Commission to bear the costs.
2 That application was made at the same time as Telefónica de España brought an appeal on 17 July 2022, pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, seeking to have the order referred to in the first indent of paragraph 1 above set aside.
3 By document lodged with the Court Registry on 29 July 2022, BT Global Services Belgium BV applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, to intervene in the present case in support of the form of order sought by the Commission.
4 By documents lodged at the Registry on 4 August and 16 August 2022 respectively, the Commission and Telefónica de España submitted written observations on that application.
The application to intervene
The merits of the application to intervene
5 It is apparent from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, that any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States and those institutions, may intervene in that case.
6 According to the Court’s settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the subject matter of the case 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 (see order of the President of the Court of Justice of 14 July 2022, Amazon.com and Others v Commission, C‑815/21 P, not published, EU:C:2022:596, paragraph 7 and the case-law cited).
7 Therefore, where the application to intervene is made in interlocutory proceedings, it is for the applicant to establish that he or she has a direct, existing interest in the ruling on the form of order sought in the application for interim measures.
8 In that regard, since 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 the President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2020:561, paragraph 8 and the case-law cited), it must be ascertained whether his or her legal position might be altered by the grant of the interim measures sought by the application for interim relief or by the rejection of that application.
9 In the present case, it is common ground that BT Global Services Belgium’s tender was selected following the call for tenders DIGIT/A 3/PR/2019/010 and that that company is therefore entitled to sign the inter-institutional framework contract covered by that call for tenders.
10 Therefore, the granting of interim measures consisting in an order that the Commission suspend the award and signature of the contracts covered by that call for tenders would be such as to alter the legal position of BT Global Services Belgium, by preventing it from signing a contract with the Commission in that regard and from commencing performance of that contract until the adoption of the order ruling on the appeal in Case C‑478/22 P(R).
11 BT Global Services Belgium must therefore be regarded as having established, to the requisite legal standard, an interest in the result of the dispute pending before the Court in the present case.
12 BT Global Services Belgium should therefore be allowed to intervene in the present proceedings in support of the Commission’s claims.
The intervener’s procedural rights
13 In accordance with Article 131(3) of the Rules of Procedure, which applies to the appeal proceedings by virtue of Article 190(1) of those rules, BT Global Services Belgium is entitled to receive a copy of every procedural document served on the parties, save for the secret or confidential items or documents excluded from such communication.
14 By document lodged at the Registry on 16 August 2022, Telefónica de España asked the Court to grant confidential treatment, vis-à-vis BT Global Services Belgium, to part of paragraph 131 of the application for interim measures. To that end, Telefónica de España has submitted a non‑confidential version of that application.
15 Since that paragraph does in fact include confidential information relating to Telefónica de España’s financial position, that request must be granted.
16 Furthermore, although Article 132(1) of the Rules of Procedure provides that the intervener may submit a statement in intervention within one month of the communication of the procedural documents, that provision is not applicable to the summary procedure referred to in Article 39 of the Statute of the Court of Justice of the European Union, which is governed by special procedural rules defined, inter alia, in Articles 160 to 166 of the Rules of Procedure.
17 To ensure that the present case is dealt with expeditiously and given that an interim measure has already been adopted by order of the Vice-President of the Court of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)‑R, not published, EU:C:2022:598), BT Global Services Belgium may lodge a statement in intervention within three weeks of the communication referred to in paragraph 13 above.
Costs
18 Pursuant to Article 137(1) of the Rules of Procedure, applicable to the appeal proceedings under Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.
19 In the present case, as BT Global Services Belgium’s application to intervene is granted, the costs relating to its intervention must be reserved.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1. BT Global Services Belgium BV is granted leave to intervene in Case C‑478/22 P(R)‑R in support of the form of order sought by the European Commission.
2. The information redacted from the non-confidential version of the application for interim measures lodged at the Registry of the Court of Justice on 16 August 2022 shall be treated as confidential vis-à-vis BT Global Services Belgium BV, and only the non-confidential version shall be required to be served by the Registrar on BT Global Services Belgium BV.
3. The Registrar shall serve on BT Global Services Belgium BV a copy of all the procedural documents, with the exception of the confidential version of the application for interim measures.
4. A period shall be prescribed within which BT Global Services Belgium BV may submit a statement in intervention.
5. The costs relating to the intervention of BT Global Services Belgium BV are reserved.
Luxembourg, 7 September 2022.
A. Calot Escobar | | L. Bay Larsen |