ORDER OF THE GENERAL COURT (Sixth Chamber)
28 November 2013(*)
(Intervention – Request for confidential treatment)
In Case T‑260/13,
Ryanair Holdings plc, established in Dublin (Ireland), represented by G. Berrisch, lawyer,
applicant,
v
European Commission, represented by T. Christoforou, A. Biolan, N. Khan and N. von Lingen, acting as Agents, and by D. Bailey, Barrister,
defendant,
ACTION for the annulment of Commission Decision C(2013) 1106 of 27 February 2013 declaring a merger to be incompatible with the internal market and the EEA Agreement (Case COMP/M.6663 – Ryanair/Aer Lingus III),
THE GENERAL COURT (Sixth Chamber),
makes the following
Order
Whether an interest in the result of the case is established
1 By document lodged at the Registry of the General Court on 5 August 2013, The Dublin Airport Authority plc (‘DAA’) applied for leave to intervene in the present case in support of the forms of order sought by the defendant, the European Commission. That application for leave to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.
2 By letter received at the Court Registry on 10 September 2013, Ryanair Holdings plc (‘Ryanair’) raised objections to that leave being granted.
3 By letter received at the Court Registry on 11 September 2013, the Commission left it to the Court to decide whether the matters relied on by DAA show that it has a sufficient interest to intervene.
4 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, any person which can establish an interest in the result of a case, with the exception of cases between Member States, between institutions of the Union or between Member States and institutions of the Union, has the right to intervene in that case.
5 According to settled case-law, the concept of ‘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, 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. 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 (Order of the President of the Court of 8 June 2012 in Case C‑602/11 P(I) Schenker v Deutsche Lufthansa and Others, not published in the ECR, paragraph 10 and the case-law cited).
6 The present case concerns an action for the annulment of Commission Decision C(2013) 1106 of 27 February 2013 declaring a merger to be incompatible with the internal market and the EEA Agreement (Case COMP/M.6663 – Ryanair/Aer Lingus III) (‘the decision’). That decision prohibited Ryanair from completing its planned acquisition of Aer Lingus, which was designed to bring together the two main airlines operating from Ireland.
7 In support of its application for leave to intervene in the present case, DAA, an Irish State-owned company which oversees the management of Dublin and Cork Airports in Ireland, relies – inter alia – on the two grounds set out below to establish its interest in the result of the case.
8 First, DAA lists various factors relating to its business activity and the impact which the planned merger could have if it were brought to fruition. DAA thus states that Ryanair and Aer Lingus are its two largest customers at Dublin and Cork Airports. Concerning Dublin Airport – the departure point for over 80% of airline passengers in Ireland – DAA argues that if it were to be determined that the planned transaction could not be prohibited, Ryanair would be in a position to influence significantly both the future development and the current operations of that airport. In particular, by reason of the ‘low‑frills’ business model used by Ryanair, its influence would be such that it would make it much harder for DAA to propose and finance services to attract Ryanair’s current and potential competitors, which may have very different expectations.
9 In that regard, in its observations on the application for leave to intervene, Ryanair submits that, by analogy with the approach taken in paragraph 15 of the order in Schenker v Deutsche Lufthansa and Others, where it is stated that ‘the fact that an undertaking is a customer of the undertakings participating in a cartel is not sufficient, in itself, to establish the right to intervene in a case in which the undertakings accused of participating in the cartel challenge the legality of the decision establishing and punishing the alleged cartel’, it should be held that the status of a supplier to merging companies is not sufficient, in itself, to establish such a right. In addition, according to Ryanair, the impact of the planned merger on DAA’s business activity is based on speculation. Ryanair also emphasises that it is seeking annulment of the decision, not because the Commission did not correctly assess the conditions of competition, but because it did not correctly assess the commitments proposed as remedies for the problems identified. Taking into consideration the commitments proposed by Ryanair, DAA would not have been dealing with a company capable of having a significant influence on Dublin Airport’s development and operations, but rather one which would have accounted for under 56% of the operated slots at that airport, since a portion of the slots previously allocated to the merged companies would have been redistributed to other operators.
10 However, if it is determined – as is the case for DAA – that the completion of a planned merger is liable to harm a company’s business activity, such observations are not sufficient to call in question the interest that company may have in intervening in a case concerning the legality of the decision prohibiting the completion of that merger.
11 If the merger currently prohibited by the Commission were to be completed, the merged entity would then represent a substantial, indeed, in the present case, probably an essential proportion of DAA’s customers. It should also be noted that, even assuming that the commitments proposed by Ryanair were capable of remedying the competition issues identified by the Commission in the decision, the merged entity would still be among DAA’s main customers, operating 56% of the slots at Dublin Airport, according to what is stated by Ryanair (see paragraph 9 above).
12 Furthermore, in response to Ryanair’s claim that the merger’s impact as described by DAA is based on speculation and should therefore not be taken into consideration, such speculation, which is inherent in merger control, is based in the present case on a situation which is – at the very least – conceivable, when the specific features of the business model adopted by Ryanair highlighted by DAA are taken into account (see paragraph 8 above). That situation may be taken into consideration by the Court when assessing DAA’s interest in the result of the case.
13 Therefore, as the Commission rightly states in its observations, DAA’s situation in the present case is different from that of Canonical as set out in the Order of 8 April 2011 in Case T‑292/10 Monty Program v Commission, not published in the ECR. In that case, which concerned an action for the annulment of Commission Decision C(2010) 142 of 21 January 2010 declaring a merger compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5529 – Oracle/Sun Microsystems), Canonical sought leave to intervene in support of the Commission on the ground that its business relied on the merging parties’ products. In dismissing the application for leave to intervene, the President of the First Chamber of the General Court stated, in paragraph 14 of that order, that ‘it has not been established that the outcome of the present case, in particular the potential annulment by the Court of the contested decision … could have an adverse effect on Canonical’s business activity […; indeed,] Canonical has neither argued nor established that that activity was subject to any interference before, during or after the administrative procedure which led to the adoption of the contested decision’. Therefore, the President of the First Chamber of the General Court did not find it plausible that ‘annulment of the contested decision could have any greater effect on that activity, even if, following a fresh examination, the Commission were to prohibit the merger in question in order to restore the status quo’. That reasoning applies a contrario in the present case.
14 Accordingly, since the completion of the planned transaction is liable to harm DAA’s business activity, DAA thereby has the right to intervene in the case concerning the legality of the Commission’s decision prohibiting the completion of that transaction.
15 Second, the DAA points out that it participated in the administrative procedure before the Commission and that, at that time, it was recognised as a legal person showing a sufficient interest to be heard for the purposes of Article 18(4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) and Article 11(c) of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 133, p. 1). As a result, DAA was able to submit its comments on the statement of objections and its written and oral observations to the Commission.
16 In that regard, in its observations on the application for leave to intervene, Ryanair refers by analogy to paragraph 16 of the order in Schenker v Deutsche Lufthansa and Others, paragraph 5 above, according to which that fact does not establish a sufficient ‘interest in the outcome of the case’.
17 However, contrary to what is claimed by Ryanair, DAA’s participation in the administrative procedure is a factor that must be taken into consideration in order to determine DAA’s interest in the result of the present case.
18 Indeed, paragraph 16 of the order in Schenker v Deutsche Lufthansa and Others states on that subject, taking into consideration the specific facts of that case:
‘Lastly, with respect to the fact that Schenker did not participate in the administrative procedure which led to the contested decision, it is sufficient to note that, as is apparent from paragraphs 14, 16 and 17 of the order under appeal, the General Court did not consider participation in that procedure to be a necessary requirement for establishing an interest in the result of the case. The General Court considered in general terms that active participation in the administrative procedure before the Commission and the filing of a complaint which led to the Commission’s investigation and to the adoption of the contested decision are factors capable, in certain circumstances, of establishing the existence of an interest in the result of the case.’
19 The Court of Justice thus endorses the reasoning of the General Court in paragraphs 14, 16 and 17 of its Order of 25 October 2011 in Case T‑46/11 Deutsche Lufthansa and Others v Commission, not published in the ECR, where the following is stated: first of all, concerning cartels, the Courts of the European Union have granted certain undertakings leave to intervene in cases where the intervention concerned, among others, parties which actively participated in the administrative procedure before the Commission and/or had filed the complaint which led to the Commission’s investigation and to the adoption of the contested decision (Order of the President of 7 July 1998 in Case T‑65/98 R Van den Bergh Foods v Commission [1998] ECR II‑2641); next, the situation of such undertakings is not comparable to Schenker’s situation since, in those cases, the result of the case had a direct impact on the economic freedom of action of the applicants for leave to intervene and, therefore, on their commercial activity and that, moreover, most of those applicants for leave to intervene had either filed a complaint with the Commission or participated in the administrative procedure; and, in conclusion, in that case, it was not established that the outcome of the case was liable to harm Schenker’s commercial activity, one reason being that Schenker never filed a complaint with the Commission concerning the conduct referred to in the contested decision and did not participate in any manner whatsoever in the administrative procedure before the Commission.
20 In the present case, not only is the completion of the planned transaction liable to harm DAA’s business activity, but it is also clear from the case-file that DAA participated in the administrative procedure before the Commission.
21 It follows from the foregoing that since (i) DAA’s business activity is liable to be affected by the planned transaction, the completion of which is currently prohibited by the decision which is preventing the creation of the merged entity challenged by DAA, and (ii) DAA participated in the administrative procedure which led to the adoption of that decision, DAA has a direct, existing interest in the result of the present case and must therefore be granted leave to intervene in that case in support of the form of order sought by the Commission.
22 Since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure of the General Court was published on 26 June 2013, the application for leave to intervene has been submitted within the time-limit prescribed by Article 115(1) of those Rules and the rights of the intervener will be those laid down by Article 116(2), (3) and (4) of those Rules.
Request for confidential treatment
23 By letter lodged at the Court Registry on 26 September 2013, Ryanair requested that, in accordance with Article 116(2) of the Rules of Procedure, certain confidential information in its case-file not be disclosed to DAA and, for the purposes of that disclosure, produced a non‑confidential version of the pleadings and documents in question.
24 Therefore, at this stage, only the non-confidential version of those procedural documents may be disclosed to DAA. A decision on the merits of the request for confidential treatment will be taken, if necessary, at a later stage in the light of any objections or observations which may be submitted on that issue.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The Dublin Airport Authority plc (DAA) is granted leave to intervene in Case T‑260/13 in support of the forms of order sought by the European Commission.
2. The Registrar shall send to DAA a non‑confidential version of all procedural documents served on the parties.
3. DAA shall be given a time-limit for submitting any observations it may have on the request for confidential treatment. A decision on the merits of the request for confidential treatment is reserved.
4.
5. DAA shall be given a time-limit for submitting a statement in intervention, without prejudice to the right to supplement it later, if need be, following a decision on the merits of the request for confidential treatment.
6. The costs are reserved.
Luxembourg, 28 November 2013.
E. Coulon | | S. Frimodt Nielsen |