ORDER OF THE COURT OF FIRST INSTANCE (Sixth Chamber)
14 September 2009 (*)
(Intervention – Interest in the result of the case)
In Case T‑442/07,
Ryanair Ltd, established in Dublin (Ireland), represented by E. Vahida, lawyer,
applicant,
v
Commission of the European Communities, represented by E. Righini and S. Noë, acting as Agents,
defendant,
ACTION for a declaration of failure of the Commission to act in that it unlawfully failed to define its position on the applicant’s complaints concerning, principally, aid allegedly granted by the Italian Republic to Alitalia, Air One and Meridiana and, secondly, alleged discrimination under Community competition law,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),
composed of A.W.H. Meij, President, V. Vadapalas (Rapporteur) and L. Truchot, Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 30 November 2007, the applicant, Ryanair Ltd, brought an action seeking a declaration of failure of the Commission of the European Communities to act in that it had unlawfully failed to define its position on the applicant’s complaints concerning, on the one hand, aid allegedly granted by the Italian Republic in the form of various kinds of advantageous measures applied in favour of the abovementioned companies and, on the other, alleged discrimination under Community competition law.
2 By document lodged at the Court Registry on 25 March 2008, Air One SpA, an undertaking established in Chieti (Italy), sought leave to intervene in the present action in partial support of the form of order sought by the Commission.
3 That application to intervene was notified to the parties in accordance with Article 116(1) of the Rules of Procedure of the Court. By documents lodged at the Court Registry on 13 May 2008 and 29 April 2008 respectively, the applicant and the Commission raised objections to that application.
Law
Arguments of the parties
4 Air One submits that, in the light of the notice published in the Official Journal of the European Union on 9 February 2008 (OJ 2008 C 37, p. 28), which sets out the pleas in law and main arguments of the applicant in the present case, it is entitled to intervene in support of the form of order sought by the Commission. The application, it submits, refers to it by name as one of the airline companies which allegedly received State aid from the Italian Republic.
5 In that regard, Air One submits that the alleged beneficiary of State aid in respect of which the Commission has unlawfully failed to take a position has an interest in intervening in the case. The decision adopted by the Commission following the action for failure to act will have a clear impact on the legal and economic position of the alleged beneficiary of the aid.
6 Air One states that its application to intervene relates solely to the aid which it allegedly received and that it seeks to support the form of order sought by the Commission only in respect of the part relating to that aid.
7 With regard to the subsidiary plea in law raised by the applicant, alleging discrimination under Community competition law, Air One also claims an interest in intervening in the event that the applicant’s arguments refer to conduct of and/or alleged advantages obtained by Air One.
8 The applicant contends that Air One has no direct interest in the result of the present case. The action, if successful, will result in a declaration of failure to act, thereby giving the Commission a basis on which to bring an action against the Italian Republic in respect of the granting of the aid in question. It is only at that stage that the issue in which Air One has an interest would arise, namely whether it received unlawful aid, and it would then be given the opportunity to defend its interests. Furthermore, in the context of the present proceedings, only the Commission and the Italian Republic are in a position to make a useful contribution to the proceedings, as the Commission’s meeting of its obligation to investigate the alleged unlawful aid would involve exchanges between itself and the Italian authorities.
9 The applicant adds that the conditions governing the admissibility of interventions in actions for failure to act should remain strict, as they currently are.
10 From a procedural point of view, the Commission notes that, contrary to the provisions of Article 44(5) of the Rules of Procedure, Air One did not attach its memorandum and articles of association to its application to intervene. It follows that it is not possible to establish whether the decision to seek to intervene in this case and to authorise a lawyer to represent Air One in these proceedings has been duly taken.
11 On the merits, the Commission submits that, in the present case, the object of the Commission’s scrutiny would exclusively be the alleged unlawful conduct of the Italian authorities. The fact that, were the Court to find a failure to act on the basis of Article 232 EC, Air One could at a later stage attack a decision by the Commission does not confer on Air One an existing and direct interest in the actual form of the order as sought in the present action. In the Commission’s view, what Air One appears to show is, at most, an interest in relation to the substantive pleas in law which might be incidentally put forward on the existence of the alleged aid.
12 Finally, the Commission expresses the view that, were Air One granted leave to intervene, it could not use any of the information acquired in this case for any purpose other than that of its intervention in the present case.
Findings of the Court
13 It must be noted, as a preliminary point, that, after lodging its application to intervene, Air One produced its memorandum and articles of association and provided evidence that the authority given to its lawyer was properly established by a representative authorised for that purpose. Those documents were notified to the main parties by the Court Registry. Consequently, Air One has satisfied the conditions laid down in Article 44(5) of the Rules of Procedure.
14 In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, any person establishing an interest in the result of any case submitted to the Court, save in cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities, may intervene in that case. In accordance with the fourth paragraph of Article 40 of the Statute of the Court of Justice, an application to intervene is limited to supporting the form of order sought by one of the parties.
15 It follows from settled case-law 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’ 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 decision and whether his interest in the result of the case is established (order of the Court in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26; see also, to that effect, order of the Court of Justice in Joined Cases 116/77, 124/77 and 143/77 Amylum and Others v Council and Commission [1978] ECR 893, paragraphs 7 and 9).
16 In the present case, it must be pointed out that the action for failure to act brought by the applicant concerns a measure classified as State aid allegedly benefiting Air One. Were the Court to uphold the action, the Commission would be required to adopt measures in execution of the judgment, that is to say, to take a decision declaring either that the measures at issue did not constitute State aid or that they did constitute State aid but were compatible with the common market, or to open a review procedure under Article 88(2) EC.
17 Accordingly, Air One, as an alleged recipient of the disputed national measure, has a direct and existing interest in the ruling on the forms of the order sought, in order that the complaint made against it does not culminate in the adoption by the Commission of binding measures in its regard. In those circumstances, Air One has an undeniable interest in supporting the Commission’s position in an action which essentially seeks a declaration that the Commission’s failure to deal with that complaint is unlawful (see, to that effect, order in Case T‑74/92 Ladbroke Racing (Deutschland) v Commission [1993] ECR II‑535, paragraph 8).
18 Furthermore, it follows from the fourth paragraph of Article 40 of the Statute of the Court of Justice and from Article 116(4) of the Rules of Procedure that, while an intervener cannot submit claims which go beyond those in support of which it is intervening, it can, on the other hand, support those claims only partly, as in the present case (see, to that effect, Case T‑171/02 Regione autonoma della Sardegna v Commission [2005] ECR II‑2123, paragraph 193).
19 Consequently, as the application to intervene was made in accordance with Article 115 of the Court’s Rules of Procedure and as Air One has established its interest in the result of the case, Air One must be granted leave to intervene in the present case, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 thereof.
20 As the notice in the Official Journal referred to in Article 24(6) of the Rules of Procedure was published on 9 February 2008, the application to intervene was lodged within the period prescribed in Article 115(1) of those rules and the intervener’s rights are therefore those set out in Article 116(2) to (4) of the Rules of Procedure.
Costs
21 Article 87(1) of the Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings.
22 At the present stage of the proceedings, the costs must therefore be reserved.
On those grounds,
THE COURT OF FIRST INSTANCE (Sixth Chamber)
hereby orders:
1. Air One SpA is granted leave to intervene in Case T‑442/07 in partial support of the form of order sought by the Commission of the European Communities.
2. The Registrar shall arrange for a copy of all procedural documents to be served on the intervener.
3. A period shall be fixed for the intervener to lodge a statement in intervention.
4. Costs are reserved.
Luxembourg, 14 September 2009.