ORDER OF THE VICE-PRESIDENT OF THE COURT
1 March 2016 (*)
(Appeal — Intervention — Interest in the result of the case — None)
In Case C‑635/15 P(I),
APPEAL under Article 57 of the Statute of the Court of Justice of the European Union, brought on 27 November 2015,
Cousins Material House Ltd, established in Romford (United Kingdom), represented by R. O’Donoghue, Barrister, and J. Oates, Solicitor,
appellant,
the other parties to the proceedings being:
Confédération européenne des associations d’horlogers-réparateurs (CEAHR), established in Brussels (Belgium), represented by M. Sanchez Rydelski, Rechtsanwalt,
applicant at first instance,
European Commission, represented by F. Ronkes Agerbeek, A. Dawes and J. Norris-Usher, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Wathelet,
makes the following
Order
1 By its appeal, Cousins Material House Ltd (‘Cousins’), a wholesale supplier of spare parts for watches, seeks to have set aside the order of the General Court of the European Union of 11 November 2015 in CEAHR v Commission (T‑712/14, EU:T:2015:856) (‘the order under appeal’), dismissing its application for leave to intervene in support of the form of order sought by the applicant at first instance in Case T‑712/14, which concerns an application for annulment of Commission Decision C(2014) 5462 final of 29 July 2014 rejecting the complaint lodged by the Confédération européenne des associations d’horlogers-réparateurs (CEAHR) (‘CEAHR’) in Case COMP.39.097 — Watch repair (‘the decision at issue’).
2 Furthermore, Cousins asks the Court to grant its application for leave to intervene.
3 CEAHR and the European Commission submitted their observations on the appeal on 22 and 18 December 2015 respectively.
The appeal
4 In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person may intervene in cases before the Courts of the European Union if he can establish an interest in the result of the case submitted to one of those Courts.
5 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute, must be defined in the light of the precise subject-matter of the case and be understood as meaning a direct and existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The wording ‘result of a case’ refers to the final decision sought, as set out in the operative part of the future judgment (order of the Vice-President of the Court in Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑385/15 P(I), EU:C:2015:681, paragraph 6 and the case-law cited).
6 In that regard, it is appropriate, in particular, to ascertain whether the party applying to intervene is directly affected by the contested measure and whether his interest in the result of the case is certain. Generally, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the party applying to intervene (order of the Vice-President of the Court in Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑385/15 P(I), EU:C:2015:681, paragraph 7 and case-law cited).
7 It is in the light of those considerations that the Court must examine the grounds of appeal put forward by Cousins.
8 This appeal is structured around three grounds of appeal, alleging, respectively:
– an error of law in the application of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, in that the General Court held that Cousins did not have a direct and existing interest in the result of the case;
– an error of law in the application of the second paragraph of that Article 40, in that the General Court denied Cousins the right to intervene notwithstanding its status as a competitor of the watchmakers concerned by the decision at issue; and
– a failure to state reasons, in that the General Court failed adequately to explain why it did not take the view that the procedural position of Cousins amounted to that of a professional association and did not take into account an item of evidence.
The first ground of appeal
9 By its first ground of appeal, Cousins claims that the General Court erred in law in finding, in paragraphs 18 to 20 of the order under appeal, that it had not established its direct and existing interest in the result of the case.
10 In support of that ground, Cousins submits that the decision at issue finds that there is a limited likelihood that the refusal of certain watch manufacturers to supply independent repairers infringes EU competition rules. Such a decision, in itself, gives legitimacy to the actions of those manufacturers. Accordingly, Cousins, being a wholesale supplier of spare parts for watches, considers that its interest in the result of the case is direct and existing. The annulment of the decision at issue would demonstrate that the Commission’s conclusions are wrong and would, therefore, bring into question the legitimacy of the conduct of those manufacturers.
11 In this respect, it should be noted that, as the Commission points out in its written observations, Cousins’ line of argument is based on a false premise concerning the Commission’s obligations when examining a complaint relating to a potential infringement of EU competition rules.
12 Cousins appears to claim that the decision at issue produces effects with respect to the legitimacy of the conduct of the watch manufacturers at issue.
13 Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) does not give a complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (see, to that effect, order in EMC Development v Commission, C‑367/10 P, EU:C:2011:203, paragraph 73 and case-law cited).
14 In the present case, as is apparent from paragraph 5 of the order under appeal, the Commission merely stated that the likelihood that the watch manufacturers in question had committed an infringement of EU competition rules was limited and, on that basis, it took the view that there were insufficient grounds for conducting a further investigation into the infringements alleged in the complaint. Consequently, the Commission did not, at any time, give its view on whether the conduct of those manufacturers was compliant with EU law.
15 In those circumstances, annulment of the decision at issue would not necessarily lead the Commission to adopt a decision finding that the watch manufacturers in question had infringed competition law by refusing to supply Cousins, among others.
16 It follows that the General Court acted correctly in law in holding, in paragraph 18 of the order under appeal, that, although the annulment of a decision, such as the decision at issue, could lead the Commission to investigate further into the basis of that complaint, it would nevertheless not oblige that institution to find such an infringement.
17 Furthermore, contrary to what is claimed by Cousins, the decision at issue does not in any way make it possible to legitimise the conduct of the watch manufacturers concerned and is not such as to provide them with any assurance as to the legitimacy of that conduct in the light of EU competition law.
18 The fact that one of those manufacturers stopped supplying Cousins one month after the decision at issue had been adopted does not bring that conclusion into question. The fact remains that there is no evidence in the file to show, on the one hand, the existence of a link between that decision and the interruption in supply to Cousins and, on the other hand, that that manufacturer would resume supplying Cousins if the decision at issue were to be annulled.
19 Consequently, the view cannot be taken that annulment of the decision at issue would be capable of altering the legal position of Cousins. The benefits that the latter might potentially derive from an annulment are therefore not sufficiently immediate to establish that it has a direct and existing interest in the result of the case.
20 It follows from the foregoing that the first ground of appeal must be rejected.
The second ground of appeal
21 By its second ground of appeal, which is directed against paragraphs 23 to 25 of the order under appeal, Cousins claims, in essence, that the General Court erred in law in holding that its status as a company in competition with the watch manufacturers concerned by the decision at issue was not sufficient to justify granting its application for leave to intervene.
22 According to Cousins, such a finding stems from the false premise that the decision at issue does not lay down a final position regarding the lawfulness of the conduct of the watch manufacturers in question. In fact, because that decision states that there is a limited likelihood that an infringement of EU competition rules would be found, it settles the substantive issue concerning the legitimacy of the practices under investigation.
23 In this respect, it should be noted that, as stated in paragraphs 13 and 14 of the present order, the decision at issue, adopted on the basis of Article 7 of Regulation No 1/2003, did not rule on whether the conduct of the watch manufacturers concerned, which was the subject of the complaint, did or did not comply with EU law, but confined itself to discounting the appropriateness of pursuing an investigation.
24 In those circumstances, as stated in paragraph 16 of the present order, the annulment of that decision could, at the very most, lead the Commission to resume its investigation, irrespective of Cousins’ status as a competitor of the watch undertakings concerned.
25 According to Cousins, the General Court, in paragraph 24 of the order under appeal, misinterpreted the case-law to which Cousins had referred in support of its line of argument in this respect, since it follows from that case-law that the EU Courts have granted competitors leave to intervene in comparable cases.
26 In fact, in that paragraph 24, the General Court merely rejected the interpretation, provided by Cousins itself, of the orders of the President of the Court in Der Grüne Punkt — Duales System Deutschland v Commission (C‑385/07 P, EU:C:2008:114) and of the President of the General Court in Van den Bergh Foods v Commission (T‑65/98 R, EU:T:1998:155), according to which the reasons for which the EU Courts had accepted the applications for leave to intervene of competitors of the undertakings concerned by the cases which led to those orders were also applicable in the present case.
27 In that regard, suffice it to note that, as the General Court properly found in paragraph 24 of the order under appeal, those cases concerned the lawfulness of Commission decisions finding infringements of Article 102 TFEU.
28 That is not the position here, given that the decision at issue did not proceed to give a definitive legal characterisation of the practices of the watch manufacturers in question, and that the issue of the lawfulness of those practices therefore remains open.
29 Moreover, Cousins itself appears to acknowledge that, if it were to be adversely affected, that would be as a consequence of the watch manufacturers’ decisions to stop supplying it, rather than as a consequence of the decision at issue.
30 It follows that the General Court acted correctly in law in holding, in paragraphs 24 and 25 of the order under appeal, that, despite its competitor status, Cousins had only an interest in the findings in the future judgment concerning the pleas in law put forward by the applicant at first instance, and not a direct and existing interest in the ruling on the form of order sought in the action for annulment.
31 It follows that the second ground of appeal must be rejected.
The third ground of appeal
32 By its third ground of appeal, which relates to paragraphs 27 to 29 of the order under appeal, Cousins, first, claims that the General Court gave an inadequate statement of reasons for its interpretation of Cousins’ arguments that its interest in intervening in the proceedings at issue was connected to its market position as a wholesale supplier of spare parts to independent repairers. That position, it submits, makes it possible for it to provide the EU Courts with particularly relevant clarifications regarding the effect of the practices in question, and in particular of the termination of supply, on wholesalers, such as Cousins, as well as on independent repairers. Consequently, Cousins’ procedural position is similar, albeit different, to that of a professional association generally granted leave to intervene in a case such as the present.
33 In that regard, it should be noted that, in fact, the General Court specifically took the view, in paragraph 28 of the order under appeal, that the very fact that Cousins maintains business relations with independent watch repairers not only did not allow it to be treated in the same way as a professional association, but, on the contrary, made it possible to differentiate the position of Cousins from that of such an association.
34 The arguments of Cousins in this respect do not make it possible to identify any error in the statement of reasons for the order under appeal, since the mere fact of being a wholesaler on a market and of sharing an economic interest with retailers is clearly not sufficient to place that wholesaler in the same procedural position as a professional association which brings together retailers. That is a fortiori the position inasmuch as such an interpretation of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union would be liable to have the effect of conferring that procedural position on all wholesalers.
35 Second, according to Cousins, the General Court failed to take into account minutes which prove the detrimental effects of the practices of the watch manufacturers in question, a failure which raises serious questions concerning the use made by the Commission of evidence in its possession.
36 In this respect, suffice it to note that, as the Commission rightly contends, such an argument, even assuming it to be well founded, concerns only the lawfulness of the decision at issue and cannot have any bearing on the application for leave to intervene submitted by Cousins, which, moreover, did not even refer to it.
37 In the light of the foregoing, the third ground of appeal must be rejected.
38 In those circumstances, regard being had to all of the foregoing considerations, this appeal must be dismissed.
Costs
39 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
40 Since the Commission has applied for costs and Cousins has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. CEAHR, which submitted observations in support of Cousins, must be ordered to bear its own costs.
On those grounds, the Vice-President of the Court hereby orders:
1. The appeal is dismissed.
2. Cousins Material House Ltd shall bear its own costs and pay those incurred by the European Commission.
3. The Confédération européenne des associations d’horlogers-réparateurs (CEAHR) shall bear the costs which it has incurred in connection with the appeal proceedings.
[Signatures]