ORDER OF THE GENERAL COURT
(Third Chamber)
27 November 2013 (*)
(Intervention – Interest in the result of the case)
In Case T‑465/12,
AGC Glass Europe SA, established in Brussels (Belgium),
AGC Automotive Europe SA, established in Fleurus (Belgium),
AGC France SAS, established in Boussois (France),
AGC Flat Glass Italia Srl, established in Cuneo (Italy),
AGC Glass UK Ltd, established in Northampton (United Kingdom),
AGC Glass Germany GmbH, established in Wegberg (Germany),
represented by L. Garzaniti, J. Blockx and P. Niggemann, lawyers, and S. Ryan, Solicitor,
applicants,
v
European Commission, represented by M. Kellerbauer, G. Meessen and P.J.O. Van Nuffel, acting as Agents,
defendant,
APPLICATION for annulment of European Commission Decision C(2012) 5719 final of 6 August 2012 on the rejection of a request for confidential treatment submitted by AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case COMP/39.125 – Carglass),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood, and E. Bieliūnas, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 On 12 November 2008, the European Commission adopted Decision C(2008) 6815 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.125 – Carglass) (‘the Carglass Decision’). In the Carglass Decision, the Commission found inter alia that the undertaking consisting of AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH, the applicants, participated in an infringement of the competition rules.
2 Taking into account their cooperation with the Commission during the administrative procedure that led to the adoption of the Carglass Decision, the applicants were awarded a reduction of 50% of the fine that would have been imposed on them in the absence of such cooperation, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
3 On 25 March 2009, the Commission’s Directorate-General for Competition notified the applicants, among others, of its intention to publish a non-confidential version of the Carglass Decision on its website. At the same time, the Commission asked the applicants to identify in the text of the decision any business secrets concerning them or other information which, if disclosed, could cause them serious harm.
4 The applicants responded to that request in letters of 22 April, 2 July, 18 September and 16 October 2009. In so doing, the applicants highlighted a range of information contained in the complete version of the Carglass Decision which they considered to be business secrets or other confidential information. They therefore asked the Commission to exclude that information from the more complete non-confidential version of that decision which the Commission intended to publish.
5 A provisional non-confidential version of the Carglass Decision was published on the website of the Directorate-General for Competition on 11 February 2010, largely taking into account the applicants’ requests for confidential treatment.
6 By letters of 18 November and 9 December 2011, the Commission informed the applicants that, in view of several requests for access to information contained in the Carglass Decision, it intended to publish a more detailed version of that decision. Consequently, the Commission refused a number of requests by the applicants for confidential treatment concerning the facts constituting the infringement, in particular the names of customers, the names and description of products and other information which, it was alleged, made it possible to identify customers of the applicants who were affected by the cartel (‘category I’ information). It also refused a number of requests for confidential treatment concerning, among other things, the number of parts supplied by the applicants, the market share of a specific car manufacturer, pricing calculations and price changes (‘category II’ information), on the ground, inter alia, that that information could not be regarded as sensitive confidential business information, as it had been exchanged with the other participants in the infringement and it was more than five years old. Finally, the Commission refused various requests for confidential treatment concerning information relating to the dates of letters, document pages, and other administrative information (‘category III’ information).
7 The applicants repeated most of their requests for confidentiality to the hearing officer, with the exception of the majority of those concerning the category III information. Following an exchange of views with the hearing officer, the applicants withdrew their request that the category II information be treated as confidential.
8 By decision of 6 August 2012 (‘the contested decision’), the hearing officer accepted some of the requests for confidentiality relating to category I information, inasmuch as that information made it possible to identify clearly certain persons. However, it rejected the majority of those requests.
9 By application lodged at the Court Registry on 19 October 2012, the applicants brought an action for annulment of the contested decision in so far as it rejected a number of their requests for confidentiality relating to information coming within category I.
10 By documents lodged at the Registry on 17 January 2013, Württembergische Gemeinde-Versicherung a.G. (‘WGV’), VHV Allgemeine Versicherung AG (‘VHV’) and LVM Landwirtschaftlicher Versicherungsverein Münster a.G. (‘LVM’), all three of which operate in the field of car glass insurance, applied for leave to intervene in the present case in support of the form of order sought by the Commission for dismissal of the action. By document lodged at the Registry on 22 January 2013, HUK-Coburg Haftpflicht-Unterstützungs-Kasse Kraftfahrender Beamter Deutschlands a.G. in Coburg (‘HUK-Coburg’), which likewise operates in the field of car glass insurance, also applied for leave to intervene in the present case in support of the form of order sought by the Commission.
11 The applications for leave to intervene were served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court. The Commission and the applicants submitted written observations on those applications for leave to intervene.
12 By documents lodged at the Registry on 4 and 11 March 2013, the applicants made a request to the Court for confidential treatment, vis-à-vis WGV, VHV, LVM and HUK-Coburg, of information contained in the application and the defence, should they be granted leave to intervene in the action.
13 Following a change in the composition of the Chambers of the Court at the beginning of the new judicial year, the Judge-Rapporteur was assigned to the Third Chamber, and this case was therefore also assigned to it.
Law
14 WGV, VHV, LVM and HUK-Coburg put forward a similar line of argument in order to establish a direct and existing interest in the result of the case.
15 They state, first of all, that they have brought actions for damages against the applicants before the Landgericht Düsseldorf (Regional Court, Düsseldorf). Those actions, based inter alia on an infringement of European Union law relating to cartels between 1998 and 2003 which was penalised in the Carglass Decision, are stated to seek compensation for the damage caused by the applicants to those insurance companies due to the fact that the latter became involved in a large number of cases for the purpose of replacing car glass that was no longer usable. They also submit that it must be borne in mind that publication of a more detailed non-confidential version of the Carglass Decision by the Commission is likely to improve their understanding of the cartel which was the subject of that decision and, in that way, make it easier to demonstrate the loss suffered to the Landgericht Düsseldorf.
16 WGV, VHV, LVM and HUK-Coburg then state that access to more complete information about the cartel that gave rise to the adoption of the Carglass Decision is made more difficult by the Commission’s rejection of their requests for access to certain documents from the administrative file relating to the Carglass Decision, which were made on the basis of 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).
17 The Commission is not opposed to WGV, VHV, LVM and HUK-Coburg being granted leave to intervene in the present action.
18 The applicants, on the other hand, consider that those prospective interveners have not shown that they have a direct and existing interest in the result of the case.
19 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of the statute, any person establishing an interest in the result of a case other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union is entitled to intervene in that case.
20 Moreover, it is settled case-law that the concept of an interest in the result of a case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice 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 (order of the President of the Court of 6 April 2006 in Case C‑130/06 P(I) An Post v Deutsche Post and Others, paragraph 8, and order of the President of the Court of 17 October 2011 in Case C‑3/11 P(I) Gesamtverband der deutschen Textil- und Modeindustrie and Others v Council and Others, paragraph 10). In that regard, it should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see, to that effect, the order of the President of the Court of 25 January 2008 in Case C‑461/07 P(I) Provincia di Ascoli Piceno and Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, paragraph 5).
21 In this case, starting with the argument of the applicants for leave to intervene that their direct and existing interest in the result of the case is apparent from the fact that they have brought an action for damages before the Landgericht Düsseldorf against the applicants as a result of the applicants’ participation in the cartel which was the subject of the Carglass Decision, it must be stated that it has been held, in relation to an application for leave to intervene made by an undertaking claiming that it was affected by the anti-competitive conduct at issue in the case concerned, that to recognise that each natural or legal person who could potentially bring a civil action seeking damages for loss resulting from the anti-competitive conduct of an undertaking has a direct and existing interest in the result of a case would lead to the category of potential interveners being so wide that there would be a risk of seriously undermining the effectiveness of the procedure before the Courts of the European Union (see, inter alia, the orders of the President of the Court of 8 June 2012 in Case C‑589/11 P(I) Schenker AG v Air France SA and Commission, paragraph 24; in Case C‑590/11 P(I) Schenker AG v Air France-KLM and Commission, paragraph 24; and in Case C‑596/11 P (I) Schenker AG v Koninklijke Luchtvaart Maatschappij NV and Commission, paragraph 24; see also, by analogy, the order of the President of the Court of 19 February 2013 in Case C‑365/12 P Commission v EnBW Energie-Baden-Württemberg, paragraph 11).
22 That case-law also applies to the present applications for leave to intervene. The fact that the applicants for leave to intervene have actually brought an action for damages against an undertaking which participated in the cartel in question does not have the effect of substantially distinguishing their situation from that of the applicants for leave to intervene contemplated by that case-law who could potentially bring such an action, and accordingly that fact cannot establish a direct and existing interest in the result of the case.
23 Next, the fact that the applicants for leave to intervene submitted requests to the Commission for access to certain documents from the administrative file relating to the Carglass Decision, on the basis of Regulation No 1049/2001, and that those requests were rejected by the Commission is not such as to establish that the applicants for leave to intervene have a vested and existing interest in the result of the case. Those requests are not capable of distinguishing WGV, VHV, LVM and HUK-Coburg from any other person interested in gaining access to the documents from the procedure giving rise to the adoption of that decision, as any person may make this type of request for access to the documents of the European Union institutions at any time (see inter alia, to that effect, Schenker AG v Air France SA and Commission, cited in paragraph 21 above, paragraph 25; Schenker AG v Air France-KLM and Commission, cited in paragraph 21 above, paragraph 25; and Schenker AG v Koninklijke Luchtvaart Maatschappij NV and Commission, cited in paragraph 21 above, paragraph 25). Moreover, any person who is the addressee of a decision founded on that regulation refusing access to documents may seek annulment of that decision before the Courts of the European Union.
24 As WGW, VHV, LVM and HUK-Coburg have failed to establish that they have a direct and existing interest in the result of the case, their applications for leave to intervene must therefore be dismissed.
Costs
25 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 as far as WGW, VHV, LVM and HUK-Coburg are concerned, a decision should be made on the costs relating to their applications for leave to intervene.
26 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 this instance, the Commission has made no application as to costs, whereas the applicants request the Court to order the applicants for leave to intervene to pay the costs they have incurred in respect of these intervention proceedings.
27 Accordingly, WGW, VHV, LVM and HUK-Coburg must be ordered to bear their own costs and to pay those incurred by the applicants relating to the intervention proceedings, as applied for by the applicants in their pleadings. The Commission is to bear its own costs relating to the intervention proceedings.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The applications for leave to intervene of Württembergische Gemeinde-Versicherung a.G., VHV Allgemeine Versicherung AG, LVM Landwirtschaftlicher Versicherungsverein Münster a.G. and HUK-Coburg Haftpflicht-Unterstützungs-Kasse Kraftfahrender Beamter Deutschlands a.G. in Coburg are dismissed.
2. Württembergische Gemeinde-Versicherung a.G., VHV Allgemeine Versicherung AG, LVM Landwirtschaftlicher Versicherungsverein Münster a.G. and HUK-Coburg Haftpflicht-Unterstützungs-Kasse Kraftfahrender Beamter Deutschlands a.G. in Coburg shall bear their own costs and pay the costs incurred by AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH relating to the intervention proceedings.
3. The European Commission shall bear its own costs relating to the intervention proceedings.
Luxembourg, 27 November 2013.