ORDER OF THE GENERAL COURT (First Chamber)
4 December 2014 (*)
(Competition — Action for damages brought before a national court — Request for cooperation — Article 15(1) of Regulation (EC) No 1/2003 — Decision of the Commission to transmit information to a national court — Withdrawal of the request — Withdrawal of the decision — No need to adjudicate)
In Case T‑164/12,
Alstom, established in Levallois-Perret (France), represented initially by J. Derenne, lawyer, N. Heaton, P. Chaplin and M. Farley, Solicitors, and subsequently by Mr Derenne, Mr Heaton and Mr Chaplin,
applicant,
v
European Commission, represented by A. Antoniadis, N. Khan and P. Van Nuffel, acting as Agents,
defendant,
supported by
National Grid Electricity Transmission plc, established in London (United Kingdom), represented by A. Magnus, C. Bryant, E. Coulson, Solicitors, J. Turner QC, D. Beard QC and L. John, Barrister,
intervener,
APPLICATION for annulment of the Commission’s decision, communicated to the applicant by letter of 26 January 2012 of the Director General of the Commission’s Directorate-General for Competition under reference D/2012/006840, to accede to the request for cooperation from the High Court of Justice of England and Wales, in so far as it involves the disclosure of information allegedly covered by the obligation of professional secrecy in the applicant’s reply to the statement of objections in Case COMP/F/38.899 — Gas insulated switchgear,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
Preliminary observation
1 Until 8 January 2004 the applicant Alstom was the parent company of a group to which Areva T & D Holding SA, Areva T & D SA and Areva T & D AG also belonged. On 8 January 2004 it transferred those three companies to Areva, which later sold them back to Alstom on 7 June 2010. Alstom renamed the three reacquired companies T & D Holding (afterwards, following internal restructuring on 30 and 31 March 2012, Alstom Holdings), Alstom Grid SAS and Alstom Grid AG respectively (referred to together below, irrespective of their parent company, as ‘the Grid companies’).
Proceedings before the Commission and the European Union judicature
2 On 3 March 2004 ABB Ltd informed the Commission of the existence of anticompetitive practices in the gas insulated switchgear (‘GIS’) sector and made an oral application for immunity from fines, in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the Leniency Notice’).
3 ABB’s oral application for immunity was supplemented, inter alia on 7 May 2004, by oral statements and documentary evidence. On 25 April 2004 the Commission granted ABB conditional immunity.
4 On the basis of ABB’s statements, the Commission launched an investigation and, on 11 and 12 May 2004, carried out inspections at the premises of several companies operating in the GIS sector.
5 From 14 to 25 May 2004, Areva and the Grid companies cooperated with the Commission and supplied it, pursuant to the Leniency Notice, with various items of written evidence and information, which they later supplemented, at the Commission’s request.
6 On 20 April 2006 the Commission adopted a statement of objections in Case COMP/F/38.899 — GIS, to which Alstom replied on 30 June 2006 (‘Alstom’s reply’ or ‘the reply to the statement of objections’) and Areva and the Grid companies replied jointly on the same day as Alstom.
7 On 24 January 2007 the Commission adopted Decision C(2006) 6762 final in that case, penalising, inter alia, Alstom, Areva and the Grid companies for participating in a cartel on the GIS market. On 18 April 2007 first Alstom and secondly Areva and the Grid companies brought actions for annulment of that decision. Alstom’s action was registered as Case T‑117/07 and that of Areva and the Grid companies as Case T‑121/07. By order of 12 March 2009, the President of the Second Chamber decided to join the two cases.
8 By judgment of 3 March 2011 in Areva and Others v Commission (T‑117/07 and T‑121/07, EU:T:2011:69), the General Court altered the fines imposed on Alstom and on Areva and the Grid companies. Areva appealed against that judgment on 24 May 2011, as did Alstom and the Grid companies on 25 May 2011 (Joined Cases C‑247/11 P and C‑253/11 P Areva and Others v Commission).
9 By judgment of 10 April 2014 in Areva and Others v Commission (C‑247/11 P and C‑253/11 P, ECR, EU:C:2014:257), the Court of Justice set the General Court’s judgment aside in part, altered the fines imposed on Alstom and on Areva and the Grid companies, and dismissed the appeals as to the remainder.
Proceedings before the High Court of Justice of England and Wales
10 On 17 November 2008 National Grid Electricity Transmission plc (‘NGET’) brought an action for damages against, inter alia, Alstom, Areva and the Grid companies before the High Court of Justice of England and Wales (‘the High Court’), on the ground that the prices it had paid for GIS purchased from 1988 to 2004 from the companies involved in the cartel on the market in those products had been excessive as a result of the existence of that infringement.
11 In those proceedings NGET made an application for disclosure of the replies of Alstom and of Areva and the Grid companies. The High Court ruled on that application by judgment and order of 4 July 2011, and then, after making an order dated 11 July 2011 establishing a ‘confidentiality ring’ the aim of which was to protect the information in the documents made available to the parties to the proceedings before it which by its nature was covered by the obligation of professional secrecy, by letter of 13 July 2011 requested the Commission, pursuant to Article 15(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), to transmit Alstom’s reply and the reply of Areva and the Grid companies (‘the request for cooperation’). By letter of 25 July 2011, Alstom and the Grid companies submitted their observations to the Commission with regard to the request for cooperation.
12 On 28 October 2011 the Commission sent a letter to the High Court informing it that it intended to accede to the request for cooperation, but stating that it first had to inform, in particular, Alstom, the Grid companies and Areva. By letters of 26 January 2012 under references D/2012/006840 and D/2012/006863, the Commission informed, first, Alstom and the Grid companies and, secondly, Areva, respectively, of its decision to accede to the request for cooperation and the documents it intended to communicate to the High Court in that connection if they did not contest its decision before the European Union judicature.
13 On 21 February 2012 Alstom and the Grid companies informed the Commission of their intention to bring an action against its decision to accede to the request for cooperation and to make an application for interim measures to the President of the General Court.
Procedure
14 On 10 April 2012 Alstom and the Grid companies brought the present action, which was registered as Case T‑164/12 and assigned to the Fourth Chamber of the Court. By that action Alstom and the Grid companies sought the annulment of the Commission’s decision to accede to the request for cooperation, in so far as it involved disclosure, first, of information in their replies to the statement of objections which by its nature was covered by the obligation of professional secrecy (business secrets and other confidential information) and, secondly, of information provided by Areva and the Grid companies in connection with the Leniency Notice which appeared in Alstom’s reply and the reply of Areva and the Grid companies.
15 By separate document of the same date, Alstom and the Grid companies lodged an application for interim measures seeking suspension of operation of the decision to accede to the request for cooperation, pursuant to Articles 278 TFEU and 279 TFEU. That application was registered as Case T‑164/12 R.
Discontinuance by the Grid companies and amendment of the form of order sought and pleas in law raised by Alstom
16 After receipt of the application and the application for interim measures, the Commission took note of the complaint by Alstom and the Grid companies that, despite the exclusion of material produced in connection with the Leniency Notice from the scope of the request for cooperation, the version of Alstom’s reply and the reply of Areva and the Grid companies which it had decided to communicate included such material. By letter of 26 April 2012, the Commission informed Alstom and the Grid companies that it had decided not to communicate that material to the High Court.
17 On 21 May 2012 Alstom and the Grid companies lodged a letter with the Registry of the Court informing it that, following the decision communicated to them by the Commission on 26 April 2012, the amended version of the reply of Areva and the Grid companies no longer raised any issues of significance and that the Grid companies had consequently decided to discontinue the main proceedings and withdraw their application for interim measures. In addition, taking note of the Commission’s decision, Alstom amended the form of order it sought and the pleas in law it raised, as some of its pleas and documents annexed in support of its application had ceased to be relevant.
18 On 29 May 2012 the Commission submitted its observations on the applications for discontinuance and amendment of the forms of order and pleas in law of the application for interim measures.
19 On 13 June 2012 the President of the Court made an order for partial removal from the register in Case T‑164/12 R so as to delete the names of the Grid companies from the list of applicants.
20 On 14 June 2012 the Commission submitted its observations on the applications for discontinuance and amendment of the forms of order and pleas in law of the main application.
21 On 10 July 2012 the President of the Fourth Chamber of the Court, by order, removed the names of the Grid companies from the list of applicants in the main proceedings, and ordered the Commission to bear its own costs and pay one third of the costs incurred by the Grid companies in relation to the main proceedings and the application for interim measures.
Application by NGET for leave to intervene and application by Alstom for confidential treatment
22 On 1 May 2012 NGET applied for leave to intervene in Case T‑164/12 R in support of the form of order it presumed would be sought by the Commission. By letter of 22 May 2012, the Commission informed the President of the Court that it had no objection in this respect. On 23 May 2012 Alstom submitted its observations on the application, stating in essence that it did not oppose the intervention. By separate document of the same date, Alstom made an application for confidential treatment of the information and documents provided in Case T‑164/12 R. On 6 June 2012 NGET lodged a letter stating that an aspect of the national proceedings had been described inaccurately by Alstom in its observations on the application for leave to intervene, and on that occasion reiterated the importance of its being granted leave to intervene in order to be able to assist the President of the Court in relation to the nature and status of the proceedings in the High Court.
23 On 10 July 2012 NGET made an application for leave to intervene in support of the form of order sought by the Commission in the present case, to which neither the Commission nor Alstom objected. However, on 7 August 2012 Alstom made an application for confidential treatment of the information and documents provided in the present case.
24 By order of 4 September 2012, the President of the Fourth Chamber of the Court granted NGET leave to intervene in the present case. On 13 September 2012 the President of the Court made an order granting NGET leave to intervene in Case T‑164/12 R. Without prejudice to the assessment by the judge hearing the application for interim measures of the merits of the application for confidential treatment, a non-confidential version, prepared by Alstom, of the documents provided in connection with the application for interim measures was, inter alia, transmitted to NGET, which was invited to submit any observations it might have in that regard.
25 On 27 September 2012 NGET filed its observations on Alstom’s application for confidential treatment, in which it stated that it would leave it to the Court to consider whether any procedural measures should be adopted to ensure that it could be heard on that issue. On 8 October 2012 the Registry of the Court served that document on Alstom and the Commission.
26 By letters lodged at the Registry of the Court on 29 November and 21 December 2012, Alstom confirmed, respectively, that the Commission’s rejoinder and its observations on the statement in intervention did not contain any confidential information and could be sent as such to NGET.
Proceedings for interim measures
27 On 10 May 2012 the Commission submitted its observations on the application for interim measures.
28 On 27 September 2012 NGET lodged its statement in intervention.
29 After the amendment to its form of order sought and pleas in law, Alstom essentially claimed that the President of the Court should:
– order suspension of the operation of the Commission’s decision to accede to the request for cooperation, in so far as it involved the disclosure of information in its reply to the statement of objections which by its nature was covered by the obligation of professional secrecy, until the Court gave judgment in the main action;
– order confidential treatment in the proceedings for interim measures of the information in its reply to the statement of objections covered by the obligation of professional secrecy;
– order the Commission to pay the costs.
30 The Commission, supported by NGET, essentially contended that the President of the Court should:
– dismiss the application for interim measures;
– order Alstom to pay the costs.
31 By order of 29 November 2012, the President of the Court ordered suspension of the operation of the Commission’s decision to accede to the request for cooperation by transmitting the confidential version of Alstom’s reply to the High Court, dismissed the application for interim measures as to the remainder, and reserved the costs of the proceedings for interim measures.
Main proceedings and forms of order sought by the parties
32 On 15 May 2012, after finding that a member of the Fourth Chamber was unable to take part in the hearing, the President of the Court designated, pursuant to Article 32(3) of the Rules of Procedure of the Court, another judge to complete the Fourth Chamber.
33 On 25 June 2012 the Commission lodged a defence.
34 On 18 September 2012 Alstom lodged a reply.
35 On 17 October 2012 NGET lodged a statement in intervention.
36 On 14 November 2012 the Commission lodged a rejoinder.
37 By letters lodged at the Registry of the Court on 5 December 2012, Alstom and the Commission submitted observations on the statement in intervention.
38 After the amendment to its form of order sought and pleas in law (paragraph 17 above), Alstom essentially claims that the Court should:
– annul the Commission’s decision, communicated to Alstom by the letter of 26 January 2012, to accede to the request for cooperation, in so far as it involves the disclosure of information in its reply to the statement of objections which by its nature is covered by the obligation of professional secrecy (‘the contested decision’);
– order the Commission to pay the costs.
39 The Commission, supported by NGET, contends that the Court should:
– dismiss the action;
– order Alstom to pay the costs.
40 On 22 January 2013 the Commission filed an application for priority treatment under Article 55(2) of the Rules of Procedure.
41 By letter lodged at the Registry of the Court on 11 February 2013, Alstom confirmed that the application for priority treatment did not contain any confidential information and could be sent as such to NGET.
42 Following changes to the composition of the Chambers of the Court as from 23 September 2013, the Judge-Rapporteur was assigned to the First Chamber, to which the present case was consequently allocated.
43 Acting on a report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the parties to reply to certain questions. The parties complied with that request within the prescribed period. Since the replies of Alstom and the Commission did not contain confidential information, they could be communicated to NGET.
44 In its reply to the Court’s questions, lodged at the Registry of the Court on 13 February 2014, the Commission offered further evidence to the Court concerning developments in the proceedings before the High Court which might make the present action devoid of purpose.
45 By letter lodged at the Registry of the Court on 10 March 2014, Alstom stated that it did not object to the further evidence offered in the letter of 13 February 2014 being added to the case file. It also stated that, in its view, the latest developments in the proceedings before the High Court had not rendered the present action devoid of purpose. Finally, it confirmed that the further evidence offered did not contain any confidential information and could be communicated as such to NGET.
46 By letter lodged at the Registry of the Court on 24 March 2014, the Commission offered further evidence to the Court concerning a letter it had sent to the High Court asking whether, in the light of the latest developments in the proceedings before that court, the request for cooperation had become superfluous.
47 By letter lodged at the Registry of the Court on 27 March 2014, Alstom confirmed that the further evidence offered in the letter of 24 March 2014 did not contain any confidential information and could be communicated as such to NGET.
48 By letter lodged at the Registry of the Court on 31 March 2014, NGET stated that it did not object to the further evidence offered in the letter of 13 February 2014 being added to the case file. It also stated that the developments in the proceedings before the High Court could render the present action devoid of purpose.
49 By letter lodged at the Registry of the Court on 3 April 2014, the Commission offered further evidence to the Court concerning the High Court’s reply to its enquiry of 2 April 2014, confirming that it was withdrawing its request for cooperation.
50 By letter lodged at the Registry of the Court on 4 April 2014, Alstom confirmed that the further evidence offered in the letter of 3 April 2014 did not contain any confidential information and could be communicated as such to NGET.
51 By letter lodged at the Registry of the Court on 24 April 2014, Alstom observed that, notwithstanding the withdrawal of the request for cooperation, it continued to have an interest in bringing proceedings for the annulment of the contested decision as long as that decision was not withdrawn by the Commission. By letter lodged at the Registry of the Court on 25 April 2014, NGET stated that it had no observations to make on the further evidence offered in the letter of 3 April 2014.
52 Acting on a proposal by the Judge-Rapporteur, the Court, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, invited the Commission to inform it whether, following the withdrawal of the request for cooperation, it had decided to withdraw the contested decision and, if appropriate, to submit observations on the conclusions to be drawn for the present case.
53 In its letter replying to the Court’s questions, lodged at the Court Registry on 11 June 2014, the Commission stated that it was withdrawing the contested decision. It annexed the letter of the same date in which it notified Alstom of that withdrawal. It also requested, on the ground of the withdrawal, a decision that there was no need to adjudicate on the present case. Finally, the Commission asked for Alstom to be ordered to bear its own costs in relation to the present proceedings and the proceedings for interim measures and to pay the costs incurred by the Commission in both proceedings, or at least to bear its own costs in relation to those proceedings.
54 In its observations on the application for a decision that there is no need to adjudicate, filed at the Registry of the Court on 28 July 2014, Alstom agreed to the present proceedings being terminated. However, it asked for the Commission to be ordered to bear its own costs in relation to the present proceedings and the proceedings for interim measures, and to pay the costs incurred by Alstom in those proceedings.
55 By letter lodged at the Registry of the Court on 26 August 2014, NGET agreed to the present proceedings being terminated, and, as intervener, agreed to bear its own costs in relation to the present proceedings and the proceedings for interim measures.
Law
56 In accordance with Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no need to adjudicate on it. Article 114(3) of those Rules provides that, unless the Court decides otherwise, the remainder of the proceedings is to be oral.
57 In the present case, the Court considers itself sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
58 It should be recalled that the withdrawal of the contested decision during the proceedings, other than in exceptional circumstances, renders an action for the annulment of that decision devoid of purpose (see, to that effect, order of 2 September 2004 in González y Díez v Commission, T‑291/02, EU:T:2004:252, paragraph 16, and order of 14 September 2011 in Regione Puglia v Commission, T‑223/10, EU:T:2011:470, paragraph 24).
59 The subject-matter of the present action is an application for the annulment of the contested decision.
60 After the present action was brought, on 11 June 2014, the Commission confirmed the withdrawal of the contested decision (see paragraph 53 above). It considers that there is therefore no longer any need to adjudicate.
61 Moreover, neither the applicant nor the intervener opposes the application for a decision that there is no need to adjudicate.
62 In those circumstances, the present action has become devoid of purpose. There is therefore no need to adjudicate.
Costs
63 The Commission asks for Alstom to be ordered to bear its own costs in relation to the present proceedings and the proceedings for interim measures and to pay the costs incurred by the Commission in those proceedings, or at least for Alstom to be ordered to bear its own costs in relation to those proceedings. First, it submits that the present action is purely accessory to that in the High Court, to which the Commission is not a party and in which it has no interest, other than its duty to respond to a request for cooperation addressed to it under Article 15(1) of Regulation No 1/2003. Secondly, the Commission submits that the present proceedings owe their origin to Alstom, in that the request for cooperation arose from Alstom’s legally unjustified opposition to disclosure of its reply to the statement of objections. Thirdly, it observes that Alstom, in the present case, raised issues of confidentiality relating to persons in the ‘confidentiality ring’ (paragraph 11 above) which it had not raised in the proceedings before the High Court. Fourthly, it considers it manifest that Alstom brought the present action for the sole purpose of delaying the proceedings before the High Court. Fifthly, it finds it sufficient, in view of the dilatory nature of the present proceedings, that it has been ordered to pay one third of the costs incurred by the Grid companies in the present proceedings and the proceedings for interim measures (paragraph 21 above).
64 Alstom asks for the Commission to be ordered to bear its own costs in relation to the present proceedings and the proceedings for interim measures and to pay the costs incurred by Alstom in those proceedings. First, it submits that the proceedings were justified in order to avoid the unnecessary disclosure in the High Court proceedings of information which by its nature was covered by the obligation of professional secrecy. Secondly, it observes that it was successful in the proceedings for interim measures and that, especially in the light of the content of the order of the President of the Court of 29 November 2012, it also had good prospects of success on the substance, in the present proceedings. Thirdly, it considers that its conduct in the present proceedings and in those for interim measures has been irreproachable and not in any way an abuse. In particular, the bringing of the present proceedings and the proceedings for interim measures and the maintenance of the present proceedings up to the withdrawal of the contested decision were legitimate and aimed solely at defending its right to protection of professional secrecy in the context of the High Court proceedings. Fourthly, it submits that the fact that the contested decision was adopted in response to a request for cooperation does not prevent the application in the present case of Article 87(6) of the Rules of Procedure. Fifthly, it states that in the proceedings before the High Court it submitted criticisms and concerns as to the inclusion of certain persons in the ‘confidentiality ring’, as was moreover found in the order of the President of the Court of 29 November 2012.
65 NGET notes that neither of the other parties has asked for it to be ordered to pay the costs. As an intervener, it states that it is not seeking for its own costs to be borne by another party.
66 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court.
67 In the present case, it must be noted that the dispute has become devoid of purpose as a result of the Commission’s decision to withdraw the contested decision, which was itself a consequence of the High Court’s decision to withdraw its request for cooperation.
68 As may be seen from the documents in the case file, that decision of the High Court was based on the fact that Alstom’s objection that French law would prohibit it from complying with an order for disclosure made under English law had been disposed of, and there was therefore no longer any barrier to the High Court ruling itself on whether the confidential parts of Alstom’s reply should be disclosed in the proceedings before it.
69 Contrary to the Commission’s submissions, it has not been shown that Alstom committed an abuse of rights by raising, in the proceedings before the High Court, an objection based on a prohibition of disclosure under French law or by bringing the present proceedings or the proceedings for interim measures.
70 As regards the objection based on a prohibition of disclosure under French law, it is apparent from the documents in the case file, and more precisely the judgment of the High Court of 11 April 2013, that the objection was rejected as unfounded only after a thorough examination of the English and French case-law and expert reports from both sides, and on the ground that, even if the disclosure at issue were prohibited by the French statute, it was unlikely, as the law stood, that an infringement would give rise to a prosecution. In view of that examination and that ground, it cannot be considered that the objection raised by Alstom was a priori unfounded and could thus only have been raised purely for delaying purposes.
71 As regards the present proceedings and those for interim measures, it is apparent from the case-file that they were brought by Alstom with a view to avoiding information which it considered to be covered by nature by the obligation of professional secrecy being transmitted to the High Court in order for it to be disclosed within the ‘confidentiality ring’ in the High Court proceedings. In view of their purpose, aiming a priori at defending legally protected interests of Alstom, it cannot be considered that those proceedings were brought by Alstom purely for delaying purposes.
72 Consequently, Alstom cannot be criticised for originating the present dispute by raising an objection based on a prohibition of disclosure under French law in the proceedings before the High Court and by bringing the present proceedings and those for interim measures.
73 It should be observed, moreover, that the Commission’s decision to withdraw the contested decision is not the inevitable consequence of the High Court’s decision to withdraw its request for cooperation, which is itself connected with fresh developments in the proceedings before that court (see, in this respect, paragraphs 67 and 68 above), for which neither the Commission nor Alstom can be held responsible.
74 As the circumstances which have led to there being no need to adjudicate arose from an event independent of the conduct of Alstom or the Commission, those parties should be ordered to bear their own costs, including those incurred in the proceedings for interim measures.
75 Under the third subparagraph of Article 87(4) of the Rules of Procedure, the Court may order an intervener to bear its own costs. In the present case NGET, which intervened in support of the Commission, is to bear its own costs, including those incurred in the proceedings for interim measures.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. The parties shall bear their own costs, including those incurred in the proceedings for interim measures.
Luxembourg, 4 December 2014.