ORDER OF THE PRESIDENT OF THE COURT
6 November 2023 (*)
[Text rectified by order of 4 December 2023]
(Appeal – Intervention – Second paragraph of Article 40 of the Statute of the Court of Justice of the European Union – Application submitted by Members of the European Parliament – Rejection)
In Case C‑249/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 April 2023,
ClientEarth AISBL, established in Brussels (Belgium), represented initially by O.W. Brouwer and T.C. van Helfteren, and subsequently by O.W. Brouwer, T.C. van Helfteren and C. Lawton, advocaten,
appellant,
the other party to the proceedings being:
European Commission, represented by C. Ehrbar, G. Gattinara and A. Spina, acting as Agents,
defendant at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal from J.‑C. Bonichot, Judge-Rapporteur,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its appeal, ClientEarth AISBL asks the Court of Justice to set aside the judgment of the General Court of the European Union of 1 February 2023, ClientEarth v Commission (T‑354/21, EU:T:2023:34), by which the General Court dismissed its action for annulment of Commission Decision C(2021) 4348 final of 7 April 2021 refusing access to certain documents requested pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and pursuant to Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).
2 By document lodged at the Court Registry on 11 August 2023, Ms Grace O’Sullivan and Ms Caroline Roose, Members of the European Parliament, applied for leave to intervene in support of the form of order sought by ClientEarth (‘the applicants for leave to intervene’).
3 After the application to intervene was served on the parties by the Registrar of the Court of Justice, in accordance with Article 131(1) of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal by virtue of Article 190(1) thereof, ClientEarth and the European Commission submitted their written observations on that application within the prescribed period. Only the Commission contended that their application should be rejected.
The application to intervene
Preliminary observations
4 The second paragraph of Article 40 of the Statute of the Court of Justice of the European Union provides that any natural 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.
5 According to 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 precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form 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 (see, inter alia, order of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:135, paragraph 7 and the case-law cited).
6 Furthermore, the interest in intervening must be sufficiently well defined. An interest is considered sufficient in so far as the result of the case is capable of altering the legal position of the applicant for leave to intervene (see, inter alia, order of the President of the Court of 31 May 2022, Naturgy Energy Group v Commission, C‑698/21 P, EU:C:2022:417, paragraph 7).
7 Lastly, Members of the Parliament cannot have a sufficiently well-defined interest where the interest relied on is based exclusively on their capacity as Members of that institution (see, to that effect, order of 3 July 1986, France v Parliament, 358/85, EU:C:1986:286, paragraph 10).
Arguments
8 In support of their application, the applicants for leave to intervene claim in particular that, as Members of the Parliament and members of the Parliament’s Committee on Fisheries, they represent – in a similar manner to an association – a significant number of citizens who are active in or dependent on the fishing industry.
9 They also rely on their specific responsibilities and their work within the Parliament in the field of environmental protection and fisheries and, in particular, on the fact that they participated in the revision of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1).
10 They submit that they rely, in their work, on the information provided by environmental protection organisations, and therefore the judgment of the General Court of 1 February 2023, ClientEarth v Commission (T‑354/21, EU:T:2023:34), which forms the subject of the appeal in respect of which the applicants for leave to intervene have lodged their application, will directly affect their activities in so far as it interprets narrowly the conditions for environmental protection organisations to access the documents at issue. In addition, the Commission documents to which ClientEarth seeks access contain detailed information on the application and implementation of Regulation No 1224/2009 in two Member States, which would be useful to them in the future revision of that regulation.
11 They add that the fishing industry was better informed than other stakeholders about the issues that arose during the revision of that regulation.
12 [As rectified by order of 4 December 2023] Lastly, they submit that, since their interest is distinct from that of the Parliament and that institution is not even a party to the present case, their situation must be distinguished from that at issue in the order of 3 July 1986, France v Parliament (358/85, EU:C:1986:286), in which an application to intervene submitted by Members of the Parliament had been rejected.
Assessment
13 First of all, it should be noted that the outcome of the appeal, relating to the lawfulness of the Commission’s refusal to grant ClientEarth’s request for access to documents, does not appear to be capable of altering the legal position of the applicants for leave to intervene.
14 In particular, and as the Commission maintains, the interest that the applicants for leave to intervene have in receiving information from the appellant, which the appellant could obtain in the present case through access to the documents at issue, appears to constitute only an indirect interest and, moreover, cannot be regarded as an existing interest, since those applicants essentially claim that that information would be of use only when Regulation No 1224/2009 is amended in the future.
15 Next, and above all, in so far as the applicants for leave to intervene rely on both their capacity as political representatives and their particular responsibilities within the Parliament in relation to environmental protection and their work in the field of fisheries, it appears that their alleged interest in the result of the case is entirely indissociable from that of the Parliament itself. The differences between the circumstances of the present case and those of the case that gave rise to the order of 3 July 1986, France v Parliament (358/85, EU:C:1986:286), highlighted by the applicants for leave to intervene, are not such as to invalidate that finding.
16 The Parliament has not applied for leave to intervene in the case, despite being entitled to do so under the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which provides that Member States and institutions of the European Union may intervene in cases before the Court of Justice.
17 It follows that the applicants for leave to intervene have not established that they 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 of the European Union.
18 Consequently, their application to intervene must be rejected.
Costs
19 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Ms O’Sullivan and Ms Roose have been unsuccessful in their application to intervene and the Commission has applied for costs, Ms O’Sullivan and Ms Roose must be ordered to bear their own costs and to pay those incurred by the Commission in connection with that application. ClientEarth is to bear its own costs.
On those grounds, the President of the Court hereby orders:
1. The application to intervene lodged by Ms Grace O’Sullivan and Ms Caroline Roose is rejected.
2. Ms Grace O’Sullivan and Ms Caroline Roose shall bear their own costs and pay those incurred by the European Commission.
3. ClientEarth AISBL shall bear its own costs.
Luxembourg, 6 November 2023.
A. Calot Escobar | | K. Lenaerts |