ORDER OF THE PRESIDENT OF THE GENERAL COURT (Fifth Chamber)
27 March 2012 (*)
(State aid – Action for annulment – Intervention – Interest in the result of the case – Dismissal)
In Case T‑262/11,
Ellinikos Xrysos AE Metalleion kai Viomixanias Xrysou, established in Kifissia (Greece), represented by K. Adamantopoulos, E. Petritsi, E. Trova and P. Skouris, lawyers,
applicant,
v
European Commission, represented by E. Gippini Fournier and D. Triantafyllou, acting as Agents,
defendant,
APPLICATION for the annulment of Commission Decision 2011/452/EU of 23 February 2011 on the State aid C 48/08 (ex NN 61/08) implemented by Greece in favour of Ellinikos Xrysos SA (OJ 2011 L 193, p. 27),
THE PRESIDENT OF THE GENERAL COURT (Fifth Chamber),
makes the following
Order
Facts and Procedure
1 By application lodged at the Registry of the General Court on 9 August 2011, European Goldfields Ltd (‘European Goldfields’), a company incorporated under the laws of Yukon with its registered office in Canada, requested leave to intervene in Case T‑262/11 in support of the form of order sought by Ellinikos Xrysos AE Metalleion kai Viomixanias Xrysou (‘Hellas Gold’).
2 The application for leave to intervene was made in proceedings brought by Hellas Gold seeking annulment of Commission Decision C 48/08 (ex NN 61/08) of 23 February 2011 (OJ 2011 L 193, p. 27) (‘the contested decision’), in which it found two measures to be State aid incompatible with the internal market: firstly, the 2003 transfer of the Cassandra mines to Hellas Gold on the basis that the price was below real market value and, secondly, the exemption from taxes on the transaction provided for in the contract for sale. Consequently, the Commission ordered the Hellenic Republic to recover EUR 15.34 million, together with interest thereon.
3 As the contested decision was published on 23 July 2011, the application for leave to intervene was submitted within the period prescribed in Article 115(1) of the Court’s Rules of Procedure.
4 The application for leave to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure. The Commission contended, contrary to the position of Hellas Gold, that the Court should dismiss the application.
Law
Arguments of the parties
5 European Goldfields submits that it is the main shareholder of Hellas Gold. It owns 95% of the shares in Hellas Gold through its subsidiaries: 650 000 shares via European Goldfields (Greece) BV (whose shares are owned entirely by European Goldfields Mining (Netherlands) BV, itself a wholly owned subsidiary of European Goldfields Ltd) and 300 000 shares via Hellas Gold BV (a wholly owned subsidiary of European Goldfields Ltd). Moreover, it provided the necessary capital to finance the gold mining project of Hellas Gold in Greece.
6 European Goldfields claims, in essence, that, as the main shareholder of Hellas Gold, the alleged recipient of the aid at issue, and as an interested party in the administrative procedure which led to the adoption of the contested decision, it has a direct and specific interest in the result of the case. The possible recovery of the public funds covered by the contested decision would jeopardise its market position. It has a duty to protect that position, as well as the interests of its shareholders. In addition, it has standing to bring proceedings for annulment of the contested decision and has, moreover, exercised that right by initiating proceedings in Case T‑261/11.
7 In its observations on the application for leave to intervene, the Commission submits that European Goldfields has not demonstrated that it has a direct and existing interest in the result of the procedure in question separate from that of Hellas Gold.
Findings of the Court
8 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, the right of persons to intervene is subject to the condition that they can establish an interest in the result of the case.
9 According to settled case-law, the concept of interest in the result of the case, within the meaning of Article 40 of the Statute, 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 claims (see the order of the Court of Justice in Case 111/63 Lemmerz-Werke v High Authority [1965] ECR 716; orders of the President of the Court of Justice in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraphs 51 to 53, and in Case C‑186/02 P Ramondín and Ramondín Cápsulas v Commission [2003] ECR I‑2415, paragraph 7).
10 Settled case-law also makes a 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 (see the order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 27 and the case-law cited). Were that not so, any person affected in an unspecified manner by the case could establish an interest in the result of the case. Such a situation would not be consistent with the requirements of economy of procedure (see the order in Joined Cases T‑97/92 and T‑111/92 Rijnoudt and Hocken v Commission [1993] ECR II‑587, paragraphs 20 and 21).
11 Next, in must be borne in mind that, according to settled case‑law, the procedure for reviewing State aid is, in view of its general structure, a procedure initiated in respect of the Member State responsible for granting the aid (Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 81; see also, to that effect, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 29). No special role is reserved to the recipient of aid, amongst all the interested parties, by any provision of the procedure for reviewing State aid (Falck and Acciaierie di Bolzano v Commission, paragraph 83). It follows from that case-law that a fortiori no special role is reserved to the shareholders of the recipient of aid by that procedure.
12 However, it is also settled case-law that, in state aid cases, the recipient of that aid has an interest in the result and is therefore entitled to intervene (see the order of 12 June 1995 in Case T‑371/94 British Airways and Others v Commission, not published in the ECR, paragraph 6, and the order in Case T‑330/94 Salt Union v Commission [1995] ECR II‑2881, paragraph 10 and the case-law cited). In the present case, the recipient of the aid has lodged its own action for annulment of the contested decision.
13 European Goldfields claims the right to intervene as the main shareholder of Hellas Gold. However, contrary to the position of Hellas Gold, which is the recipient of the aid at issue and which has a direct, existing interest in any dispute concerning that aid, a shareholder such as European Goldfields has, in the circumstances of the present case, only an indirect and potential interest in the result of the case. It would not be consistent with the requirements of economy of procedure to grant leave to intervene to the shareholders of the recipients of aid where they have failed to establish a specific interest in the result (see, to that effect, order of 11 September 2006 in Case T‑367/05 UPC France Holding and Others v Commission, not published in the ECR, paragraph 15).
14 European Goldfields’ argument that upholding the contested decision would seriously affect its market position cannot be accepted. Were the present action to be dismissed, the result would be to confirm the Hellenic Republic’s obligation to recover the aid at issue from Hellas Gold. However, there is nothing to indicate that such recovery would automatically have financial consequences for European Goldfields or that European Goldfields could thereby establish a direct, existing interest in the result of the case. In actual fact, European Goldfields has, in accordance with the case-law cited in paragraph 13 above, only an indirect and potential interest in the result of the case.
15 Moreover, European Goldfields’ argument that the result of the case could affect the interests of its shareholders cannot be accepted either. It must be borne in mind, in that regard, that the concept of interest in the result of the case must be defined in the light of the precise subject-matter of the dispute. European Goldfields’ assertion that, in essence, repayment of the aid at issue could have an impact on the interests of its own shareholders is too abstract and general to establish that it is significantly affected by the outcome of the present case.
16 As regards European Goldfields’ claim that, as a large shareholder of Hellas Gold, it has the right to intervene, it should be noted that that fact alone does not establish that it has a direct interest in the result of the case, in accordance with the case-law cited in paragraph 13 above, and in particular in the light of the fact that its shareholding in Hellas Gold is only through European Goldfields Mining (Netherlands) BV and Hellas Gold BV (see paragraph 5 above). The recipient of the aid must be viewed as an entity which is distinct from its members and endowed with its own free will. It was therefore a decision for Hellas Gold to make to bring an action for the annulment of the contested decision, in the present case (see, to that effect, the order in UPC France Holding and Others v Commission, paragraph 18, and, by analogy, the order in National Power and PowerGen, paragraph 66).
17 Lastly, the fact that European Goldfields participated in the administrative procedure, as an interested party, is insufficient to establish the interest required by Article 40 of the Statute of the Court of Justice (see, by analogy, the order of the President of the Fifth Chamber (extended composition) of the General Court in Case T‑227/01 Diputación Foral de Álava and Gobierno Vasco v Commission [2006] ECR II‑1, paragraph 10).
18 As European Goldfields has not demonstrated that it has a direct, existing interest in the result of the case, its application for leave to intervene must be dismissed.
Costs
19 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 European Goldfields, it is appropriate to give a decision on the costs relating to its application for leave to intervene.
20 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. Since European Goldfields has been unsuccessful, it must be ordered to bear its own costs and pay those of the Commission relating to this application, in accordance with the form of order sought by the Commission. Hellas Gold, which requested that the Commission be ordered to pay the costs, must be ordered to bear its own costs relating to the application for leave to intervene.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The application for leave to intervene made by European Goldfields Ltd is dismissed.
2. European Goldfields Ltd shall bear its own costs and pay those of the Commission relating to the intervention proceedings.
3. Ellinikos Xrysos AE Metalleion kai Viomixanias Xrysou shall bear its own costs relating to the intervention proceedings.
Luxembourg, 27 March 2012.