ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE
9 December 2008(*)
(Intervention – Interest in the result of the case – Confidentiality)
In Case T‑111/08,
MasterCard Inc.,
MasterCard International Inc.,
and
MasterCard Europe SPRL,
applicants,
v
Commission of the European Communities,
defendant,
supported by
United Kingdom of Great Britain and Northern Ireland,
British Retail Consortium,
and
Eurocommerce a.i.s.b.l
interveners,
APPLICATION for annulment, primarily, of Commission Decision C(2007) 6474 final of 19 December 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Cases COMP/34.579 – MasterCard, COMP/36.518 – EuroCommerce, COMP/38.580 – Commercial Cards) in its entirety and, in the alternative, of Articles 3, 4, 5 and 7 of that decision,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1 On 1 March 2008, the applicants, MasterCard Inc., MasterCard International Inc. and MasterCard Europe SPRL (together ‘MasterCard’), brought an action for annulment under Article 230 EC of Commission Decision C(2007) 6474 final of 19 December 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Cases COMP/34.579 – MasterCard, COMP/36.518 – EuroCommerce, COMP/38.580 – Commercial Cards) (‘the contested decision’).
2 Under Article 24(6) of the Rules of Procedure of the Court of First Instance, the summary of the application initiating proceedings in Case T‑111/08 was published in the Official Journal of the European Union of 9 May 2008 (OJ 2008 C 116, p. 26).
3 By document lodged at the Registry of the Court of First Instance on 20 June 2008, Banco Santander SA sought leave to intervene in support of the form of order sought by Mastercard.
4 By document lodged at the Court Registry on 27 June 2008, HSBC Bank plc sought leave to intervene in support of the form of order sought by MasterCard.
5 By documents lodged at the Court Registry on 30 June 2008, Bank of Scotland plc, Royal Bank of Scotland plc, Lloyds TSB Bank plc and MBNA Europe Bank Ltd sought leave to intervene in support of the form of order sought by MasterCard.
6 The six abovementioned applications were, in accordance with Article 116(1) of the Rules of Procedure, served on the applicants and on the Commission.
7 By documents lodged at the Court Registry on 30 July, 1 August and 3 September 2008, the Commission raised objections to those applications. MasterCard did not submit any observations.
8 On 4 August 2008, MasterCard requested confidential treatment for certain matters contained in the application. On 6 August 2008, the Commission requested confidential treatment for certain matters contained in the application, then withdrew that request on 16 September 2008.
Law
The applications for leave to intervene
9 Under the second paragraph of Article 40 of the Statute of the Court of Justice which applies, by virtue of the first paragraph of Article 53 of that Statute, to proceedings before the Court of First Instance, any person establishing an interest in the result of a case other than one between Member States, between institutions of the Communities or between Member States and institutions of the Communities may intervene in that case.
10 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 measure and whether his interest in the result of the case is established (see the order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26, and the case-law cited).
11 The applicants to intervene seek to establish, in particular, their interest that the form of order sought by MasterCard seeking the annulment, in whole or in part, of the contested decision be granted, by their capacity as principal licensees of MasterCard. They also claim that the fallback interchange fees for cross-border transactions within the European Economic Area (‘fallback interchange fees’) are usually paid to them, in their capacity as card-issuing banks. They argue, therefore, that they are financially affected by the contested decision, since the Commission found that those fees are contrary to Article 81 EC, ordered their termination and prohibited MasterCard from adopting measures having similar or identical effects in the future. In addition, the applicants to intervene who are also acquiring banks, that is to say banks accepting transactions carried out with those cards, maintain that the contested decision affects the conduct of their business.
12 In Article 1 of the contested decision, the Commission determined that ‘the MasterCard payment organisation and the legal entities representing it, that is MasterCard Incorporated, MasterCard International Incorporated and MasterCard Europe SPRL, have infringed Article 81 [EC] and … Article 53 of the EEA Agreement by in effect setting a minimum price merchants must pay to their acquiring bank for accepting payment cards in the European Economic Area, by means of … fallback interchange fees…’. In Article 3 of the contested decision the Commission ordered MasterCard to repeal the fallback interchange fees and modify the association’s network rules to reflect that order.
13 The applicants to intervene therefore justifiably assert that they are financially affected by the contested decision because they are all card-issuing banks and they charged, on that basis, fallback interchange fees, the termination of which the Commission ordered.
14 It necessarily follows that the applicants to intervene have a direct and established interest that the form of order sought by MasterCard seeking the annulment of the contested decision be granted.
15 That conclusion is not invalidated by the Commission’s arguments.
16 First, the Commission refers to the supposed classification of MasterCard as an association of undertakings and bases on it the conclusion that the banks which are its members do not have an interest in intervening.
17 In that regard, it is appropriate to observe that the Commission’s argument is based on the premiss that MasterCard has remained, after its admission to listing on the Stock Exchange on 25 May 2006, an association of undertakings of which the applicants to intervene are members. It must however be noted that that classification is disputed by MasterCard.
18 In any event, the Commission’s argument must, on any basis, be rejected.
19 Admittedly, the Commission correctly observes that a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (order in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66). However, the consequence which it draws from that – namely that a legal person, which is a member of an association already party to an action, has no interest in intervening – is incorrect. In fact, a legal person cannot be prevented from intervening in an action simply because an association of which it is a member has also brought an action, as it may wish to raise issues which are different from those raised by the association as a whole (order of 14 May 2007 in Case T‑271/06 Microsoft v Commission, not published in the ECR, paragraph 73).
20 As regards the parallels drawn with the judgment in Joined Cases 228/82 and 229/82 Ford of Europe and Ford-Werke v Commission [1984] ECR 1129 and with that in Case T‑23/90 Peugeot v Commission [1991] ECR II‑653, they are irrelevant. It simply emerges from those two judgments that the intervention of an association of consumers was allowed. Moreover, the Commission seems to contend that the Court of Justice, in Ford of Europe and Ford-Werke v Commission, refused two Ford distributors leave to intervene in support of the order sought by Ford, on the ground that they had no sufficiently defined interest. However, it is clear from a reading of the judgment itself that the intervention of the two distributors in question was not refused but, on the contrary, allowed.
21 Secondly, the Commission refers to the order of 11 September 2006 in Case T‑367/05 UPC France Holding v Commission, not published in the ECR, in which it was decided, in essence, that a shareholder in an undertaking which received aid had no interest in intervening in an action for annulment of the Commission’s decision declaring that aid compatible with the common market. It is sufficient, in that regard, to observe that the facts of the two cases are not comparable. In the order made in Case T‑367/05, the Court observed that the only possible consequence of the result of the case was the opening of the formal investigation procedure under Article 88(2) EC and not any financial consequences such as the classification of that aid as State aid or the obligation to recover it. In the present case, any annulment of the contested decision will have direct financial effects on the applicants to intervene, particularly in that it will enable them again to charge fallback interchange fees.
22 In the light of the foregoing, the applications for leave to intervene in support of the form of order sought by MasterCard must be allowed.
23 Since the applications to intervene were made in accordance with Article 115 of the Rules of Procedure and the applicants to intervene have established their interest in the result of the case, the applications must be allowed pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which applies, by virtue of the first paragraph of Article 53 thereof, to proceedings before the Court of First Instance. Since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 9 May 2008, the applications for leave to intervene were submitted within the time allowed by Article 115(1) of the Rules of Procedure and the rights of the interveners will be those laid down in Article 116(2) to (4) of those Rules.
24 In its observations, the Commission asks the Court to order that the various interventions be consolidated in a single document. In so far as that request is intended to have an obligation imposed on the interveners to lodge a common statement in intervention, it must be rejected. Each of the interveners is entitled to avail itself of the right provided for in Article 116(4) of the Rules of Procedure to lodge a statement in intervention.
25 Nonetheless, it is appropriate to point out that the Court of First Instance accepts that several interveners may voluntarily lodge a common statement in intervention (Case T‑10/93 A v Commission [1994] ECR‑SC I‑A‑119 and II‑387, paragraph 11). It should also be pointed out that any duplication of written observations submitted by the interveners is a matter which may be taken into account by the Court when making the order for costs (see, to that effect, the order in Microsoft v Commission, cited in paragraph 19 above, paragraph 74).
The request for confidential treatment
26 MasterCard has requested that, in accordance with Article 116(2) of the Rules of Procedure, certain confidential matters in the file be not communicated to the interveners and has produced, for the purposes of such communication, a non-confidential version of the pleadings and documents in question.
27 At this stage, communication to the interveners of the procedural documents served and, as appropriate, to be served on the parties must therefore be limited to non-confidential versions. A decision on the merits of the request for confidentiality will, if appropriate, be made later in the light of any objections and observations which may be submitted in respect of it.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Bancosantander SA, HSBC Bank plc, Bank of Scotland plc, Royal Bank of Scotland plc, Lloyds TSB Bank plc and MBNA Europe Bank Ltd are granted leave to intervene in Case T‑111/08 in support of the form of order sought by MasterCard.
2. The Registrar shall communicate to the interveners a non-confidential version of each procedural document served on the parties.
3. A period shall be fixed for the interveners to submit any observations on the application for confidential treatment. The decision on whether that application is well founded is reserved.
4. A period shall be fixed for the interveners to submit their statements in intervention, without prejudice to the possibility of supplementing them later, should the need arise, further to a decision as to whether the application for confidential treatment is well founded.
5. The costs are reserved.
Luxembourg, 9 December 2008.