Order;Abstract — ECLI:EU:C:2022:621
Date: 2022-08-01
Language of the case: English
Court formation: Grand Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal;Application to intervene - successful
Origin: Belgium

summary nature, the letters of the Registrar of the General Court dated 6 December 2021 must be understood as reflecting the decision of the General Court to refuse to grant the appellants the status of interveners in Case T‑263/16 RENV. As regards the appellants’ right to bring an appeal against such a decision under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, which entitles persons whose application to intervene has been dismissed by the General Court to appeal, the Court of Justice observes that it is true that the General Court did not, in this case, dismiss applications to intervene, the appellants not having lodged such applications before it. However, the scope of the decisions communicated by the Registrar of the General Court to the appellants is similar to that which would have flowed from a decision of the General Court to dismiss an application to intervene lodged by each of those appellants. Furthermore, where the Court of Justice sets aside a decision of the General Court on appeal and refers the case back to it on the ground that the state of the proceedings does not permit final judgment to be given, it cannot reasonably be expected of an intervener in that appeal to submit a formal application to intervene before the General Court for the sole purpose of bringing an appeal against the decision dismissing that application. Such an application could, in any event, only be dismissed by the General Court as being out of time pursuant to the provisions of its Rules of Procedure. In that context, if an intervener in the appeal were not entitled, on the basis of the first paragraph of Article 57 of the Statute of the Court of Justice, to bring an appeal against a decision of the General Court refusing it the status of intervener following the referral of the case back to that court, that party would be deprived of all judicial protection enabling it to defend its right to intervene, if necessary, before the General Court, even though the very purpose of the first paragraph of Article 57 of the said statute is to guarantee such protection. In the event that the intervener in the appeal rightly relied on its status as intervener before the General Court, no other remedy would be open to it to assert its procedural rights. The Court rejects, next, the plea of inadmissibility raised by the Commission alleging that the appeal brought by Soudal NV and Esko-Graphics BVBA was done so out of time. To that end, the Court notes that, although that appeal was brought outside the period of two weeks from the notification of the contested decision provided for in the first paragraph of Article 57 of the Statute of the Court, extended on account of distance by a single period of 10 days, that period may nevertheless be derogated from in the event of excusable error on the part of the party concerned. In accordance with settled case-law, that excusable nature may be found in an exceptional situation in which the party concerned was faced, as a result of the conduct of an institution – including a Court of the European Union – and in the light of the wording of the applicable rules, with genuine uncertainty as to the time limits within which an action had to be brought. In the present case, the General Court’s refusal to grant Soudal NV and Esko-Graphics BVBA, interveners in the appeal, the status of interveners in the proceedings after referral constitutes a departure from a long-standing practice followed by that court and formally endorsed in its case-law. Moreover, the letter from the Registrar of the General Court was of a summary nature, since it did not explicitly state that the General Court was denying the appellants intervener status and did not contain any specific reference to the basis of the decision adopted. Last, at the date on which the appeal was brought by Soudal NV and Esko-Graphics BVBA, the legal basis on which that appeal was to be brought – Article 56 or Article 57 of the Statute of the Court – was not clearly apparent either from the case-law of the Court of Justice or from that statute, whereas the time limit for bringing an appeal is different in the two cases: an appeal under Article 56 of the Statute of the Court of Justice must be brought within two months of the date of notification of the decision of the General Court, whereas it must be within two weeks under Article 57 of the said statute. In the light of those factors, the Court of Justice finds that the error committed by Soudal NV and Esko-Graphics BVBA as to the time limit within which their appeal had to be brought is excusable. After having rejected the various pleas of inadmissibility raised by the Commission, the Court examines the merits of the appeals brought by the appellants. In that regard, the Court of Justice begins by observing that the Rules of Procedure of the General Court do not specify the status to be accorded, in proceedings following referral, to the interveners in the appeal. That being so, the examination by the General Court of a case after referral is clearly a continuation of the appeal proceedings before the Court of Justice, which is explicitly reflected in the Rules of Procedure of the General Court. Thus, Article 217 of those Rules of Procedure allows the parties to the proceedings after referral to lodge written observations on the conclusions to be drawn from the decision of the Court of Justice for the outcome of the proceedings where the decision set aside was made after the written procedure on the substance of the case had been closed by the General Court, with a view to ensuring the continuity of debate before the EU Courts. Refusal to grant an intervener in the appeal, who has been able to establish an interest in the result of the case submitted to the Court of Justice, the status of intervener in the proceedings after referral, would have the consequence of depriving that party of any possibility of lodging observations before the General Court on the conclusions to be drawn from a decision of the Court of Justice which has, however, affected that person’s interests. Moreover, the solution adopted by the General Court in the contested decision makes the continuity of the debate in a case dependent on the decision of the Court of Justice to give final judgment in the matter itself or, on the contrary, to refer the case back to the General Court. Where the Court of Justice gives final judgment in the dispute, the intervener in the appeal may put forward its arguments before the EU Court called upon to rule on the action at first instance, whereas, if the solution adopted by the General Court were to be followed, it would be denied such a possibility in the event of referral of the case back to that court. Furthermore, exclusion of the intervener in the appeal from the proceedings after referral appears all the more likely to affect the continuity of debate before the EU Courts since that intervener should be able to participate again, in compliance with the applicable procedural conditions, in the proceedings before the Court of Justice in the event of an appeal against the decision of the General Court taken following the referral of the case back to it. Such an exclusion also poses a problem with regard to the costs, in so far as the Court of Justice itself is to make a decision as to the costs only where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case. On the other hand, where the Court of Justice refers the case back to the General Court, it is for that court to rule on the apportionment of the costs relating to the appeal proceedings, including those incurred or those to be reimbursed by the interveners in the appeal. Therefore, to deny them the status of party before the General Court would mean that the costs would not be paid or that the General Court must rule on forms of order relating to a person who is not a party to the proceedings before it. The Court concludes that the Statute of the Court of Justice, respect for the procedural rights guaranteed to interveners by the Rules of Procedure of the General Court and the principle of the proper administration of justice require, in the context of a coherent articulation of the procedures before the Court of Justice and the General Court, that the parties admitted to intervene in a case at the appeal stage automatically enjoy the status of intervener before the General Court, where the case is referred back to that court following the annulment of the decision under appeal. Accordingly, the General Court committed an error of law, which leads the Court of Justice to annul the decision of that court to refuse to place on the file in Case T‑263/16 RENV the written observations lodged by the appellants and, in so doing, to refuse to grant those appellants the status of interveners in that case. 1 Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (notified under document C(2015) 9837, OJ 2016 L 260, p. 61). 2 Registered as Case T‑278/16. 3 Registered as Case T‑370/16. 4 Registered as Case T‑201/16. 5 Registered as Case T‑335/16. 6 Judgment of 14 February 2019, Kingdom of Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91). 7 Judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741).