ORDER OF THE VICE-PRESIDENT OF THE COURT
17 December 2025 (*)
( Appeal – Intervention – Competition – Agreements, decisions and concerted practices – Markets for the provision of domestic long-distance rail passenger transport services in the Czech Republic and for the provision of international long-distance rail passenger transport services between Austria and the Czech Republic on the Prague-Vienna route – Access to used railway wagons for long-distance passenger transport in those markets – European Commission decision establishing an infringement of Article 101 TFEU – Action for annulment – Co-perpetrator of that infringement – Interest in the result of the case – None )
In Case C‑545/25 P(I),
APPEAL under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 12 August 2025,
České dráhy, a.s., established in Prague (Czech Republic), represented by J. Kindl and M. Kramář, advokáti,
appellant,
the other parties to the proceedings being:
Österreichische Bundesbahnen-Holding Aktiengesellschaft, established in Vienna (Austria),
ÖBB-Personenverkehr Aktiengesellschaft, established in Vienna,
ÖBB-Technische Services-Gesellschaft mbH, established in Vienna,
applicants at first instance,
European Commission, represented by M. Jakobs, A. Keidel and C. Zois, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its appeal, České dráhy, a.s. (‘ČD’), seeks the annulment of the order of the President of the Tenth Chamber of the General Court of the European Union of 23 July 2025, ÖBB-Holding and Others v Commission (T‑2/25, ‘the order under appeal’, EU:T:2025:768), by which the President of the Tenth Chamber dismissed its application for leave to intervene in support of the form of order sought by Österreichische Bundesbahnen-Holding Aktiengesellschaft, by ÖBB-Personenverkehr Aktiengesellschaft and by ÖBB-Technische Services-Gesellschaft mbH (together, ‘ÖBB’) in Case T‑2/25.
Background to the dispute
2        The background to the dispute is set out in paragraphs 2 to 6 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.
3        By Decision C(2024) 7355 final of 23 October 2024 relating to a proceeding under Article 101 [TFEU] (Case AT.40401 – Second-hand Rolling Stock) (‘the contested decision’), the European Commission found that ČD and ÖBB had infringed Article 101 TFEU by participating in an agreement and/or concerted practice aimed at preventing, hindering or restricting the access of RegioJet a.s. to used railway wagons for long-distance passenger transport in the markets for the provision of domestic long-distance rail passenger transport services in the Czech Republic and for the provision of international long-distance rail passenger transport services between Austria and the Czech Republic on the Prague-Vienna route (Article 1 of the contested decision).
4        According to the contested decision, the infringement started on 9 May 2012 and lasted until 21 January 2016. The date of 9 May 2012 corresponds to that on which a high-level meeting took place in Vienna (Austria) between the Chief Executive Officers of ČD and ÖBB, for the purposes of which a preparatory document was drawn up on the market entry of new private rail operators, which states that those rail operators concluded a ‘gentleman’s agreement’ regarding the principles of the sale of non-essential passenger cars to their competitors.
5        On account of the infringement found, the Commission imposed, first, on ČD, a fine of EUR 31 940 000 (Article 2(a) of the contested decision) and, second, on ÖBB, jointly and severally, a fine of EUR 16 712 000 (Article 2(b) of the contested decision). It ordered those undertakings to bring that infringement to an end immediately in so far as they had not already done so, and to refrain from repeating any act or conduct described in Article 1 and any act or conduct having the same or similar object or effect (Article 3 of the contested decision). The contested decision was addressed to ČD and to ÖBB (Article 4 of the contested decision).
The action before the General Court and the order under appeal
6        By application lodged at the Registry of the General Court on 2 January 2025 (Case T‑1/25), ČD brought an action for annulment of the contested decision.
7        By application lodged at the Registry of the General Court on 3 January 2025 (Case T‑2/25), ÖBB brought an action under Article 263 TFEU, by which they sought, inter alia, the annulment in part of Article 1 of the contested decision in so far as it holds them liable for the infringement at issue for the period prior to 7 September 2012, and, consequently, a reduction of the fine imposed on them in Article 2(b) of that decision.
8        By document lodged at the Registry of the General Court on 7 April 2025, ČD sought leave to intervene in Case T‑2/25 in support of the form of order sought by ÖBB to the extent that it seeks the annulment in part of Article 1 of the contested decision in so far as it holds ÖBB liable for the infringement at issue for the period prior to 7 September 2012.
9        In support of its application, ČD outlined that it was one of the addressees of the contested decision and that, as such, it had a direct, existing interest in the result of Case T‑2/25. Given that ČD and ÖBB were the only parties to the alleged cartel agreement, a decision of the General Court granting ÖBB’s application for annulment in part of the contested decision would be of direct concern to ČD. In particular, should the duration of the alleged infringement be altered as proposed by ÖBB, that would inevitably have an impact on the amount of the fine imposed on ČD. Lastly, ČD relied, in essence, on the case-law arising from the order of the President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601), from which, ČD argued, it follows that the right to intervene in a situation such as the present one is essential, inter alia, to preserve the right of the applicant for leave to intervene to be properly heard on the pleas in law which it has brought in its own application for the annulment of the measure in question.
10      By the order under appeal, the President of the Tenth Chamber of the General Court dismissed that application for leave to intervene on the ground that ČD had not established a direct, existing interest in the result of Case T‑2/25.
11      In that connection, the President ruled, in paragraphs 22 to 25 of the order under appeal, that if ÖBB’s claim in support of which ČD seeks leave to intervene were upheld, that would lead only to an annulment in part of Article 1 of the contested decision, and only in so far as that article applies to ÖBB. That annulment in part would have no direct impact on the contested decision in so far as it is addressed to ČD. In particular, such annulment could not have any direct consequence on the amount of the fine imposed on ČD. Any finding of a reduced duration of the infringement at issue in Case T‑2/25 could not, as such, require the judge hearing Case T‑1/25 to alter the amount of the fine imposed on ČD.
12      Furthermore, the President of the Tenth Chamber of the General Court dismissed, in paragraphs 27 to 31 of the order under appeal, ČD’s argument derived, in essence, from the line of case-law arising from the order of the President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601), noting that the specific circumstances referred to in the first hypothesis mentioned in paragraph 23 of that order were not to be found in the present case. First, the President of the Tenth Chamber of the General Court noted that, by their claim in support of which ČD is seeking leave to intervene, ÖBB are not contesting the nature or existence of the infringement, but only its starting point. That is, moreover, also confirmed by the grounds for annulment put forward by ÖBB. Second, Case T‑2/25 is not at a stage where the Courts of the European Union would be called upon to give a final ruling on points of law that might have repercussions for a case pending before the General Court, in this instance Case T‑1/25 brought by ČD. The dismissal of the application for leave to intervene is therefore not such as to undermine the equality of arms or the right to an effective remedy which ČD derives from Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), since that right is guaranteed by virtue of ČD being a party to Case T‑1/25.
Forms of order sought by the parties to the appeal
13      By its appeal, ČD claims that the Court of Justice should:
–        annul the order under appeal;
–        allow it to intervene in Case T‑2/25 in support of the form of order sought by ÖBB; and
–        order the Commission to pay the costs.
14      The Commission contends that the Court should:
–        dismiss the appeal; and
–        order ČD to pay the costs of the appeal proceedings.
The appeal
Arguments
15      In support of its appeal, ČD raises a single ground of appeal alleging an error of law in the interpretation and application of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and of Article 142(1) of the Rules of Procedure of the General Court and the case-law arising, in essence, from the order of the President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601).
16      In the first place, ČD submits that the reasoning of the President of the Tenth Chamber of the General Court – which suggested, in paragraphs 27 to 31 of the order under appeal, that the judgment delivered in Case T‑2/25 would not be final, since it could be subject to an appeal, and that leave to intervene could be sought by ČD at the appellate stage only – is wrong. Such reasoning, which would limit the right of intervention to the appellate stage only, would expose the applicant for leave to intervene to the risk that the judgment delivered in Case T‑2/25 could compromise its own action for annulment of the contested decision, without it having had the opportunity to present its submissions in support of the action in Case T‑2/25. Since its application overlaps, at least in part, with the application of ÖBB, in particular in the part which concerns the starting point of the alleged infringement, ČD must be provided with the opportunity to support the application of ÖBB and to submit observations on the Commission’s defence arguments concerning ČD.
17      In the second place, ČD submits that its right to intervene is all the more pertinent since the contested decision is based on the premiss of an alleged bilateral agreement between ČD and ÖBB. If the General Court were to accept ÖBB’s argument that the infringement found did not begin before 7 September 2012, it would follow that ČD could not have participated in the purported cartel agreement before that date either. The applications of ÖBB and of ČD are therefore strongly linked, at least in the part which concerns the existence of that infringement over the period between 9 May and 7 September 2012. The President of the Tenth Chamber of the General Court neglected to consider those circumstances in the order under appeal, thus failing to fulfil her obligation to state, to the requisite legal standard, adequate reasons for her decision regarding ČD.
18      Furthermore, ČD criticises the President of the Tenth Chamber of the General Court for having incorrectly considered that ČD and ÖBB were different parties to a multilateral horizontal cartel agreement, in which various parties could have, in principle, participated for different periods. That is clearly not the case here, since the cartel agreement concerned is tied exclusively to ÖBB and ČD. Consequently, the President of the Tenth Chamber of the General Court was wrong to find, in paragraph 22 of the order under appeal, that ‘if [ÖBB’s] claim in support of which ČD seeks leave to intervene were upheld, that would lead only to an annulment in part of Article 1 of the contested decision, and only in so far as that article applies to [ÖBB]’. Logically, as there can be no unilateral cartel, the annulment of Article 1 of the contested decision would have to apply, in a mirror-like manner, also to ČD. Similarly, the findings of the President of the Tenth Chamber of the General Court in paragraphs 23 to 25 of the order under appeal are wrong. Accordingly, the finding that ČD has established, at most, only an indirect interest in the result of the case concerning ÖBB’s application is manifestly incorrect.
19      In the third place, ČD also submits that the President of the Tenth Chamber of the General Court was wrong to hold that the form of order sought by ÖBB in Case T‑2/25 concerns only the amount of the fine imposed on ÖBB and not the substance of the infringement concerned. According to ČD, ÖBB also challenged the very existence of that infringement, at least in the initial period of that infringement. In any event, the claim that the infringement found did not exist before 7 September 2012 also has a direct impact on the duration of that infringement and the resulting calculation of the fine imposed on ČD. In particular, should ÖBB successfully challenge the alleged start date of that infringement, that would also invalidate the Commission’s findings with regard to ČD.
20      The Commission replies that ČD’s arguments rest on a flawed reading of the order under appeal and must, in any case, be dismissed on the substance.
Assessment
21      By its single ground of appeal, ČD criticises the President of the Tenth Chamber of the General Court for having erred in law in the interpretation and application of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, by considering that ČD established, at most, only an indirect interest in the result of Case T‑2/25.
22      In that connection, it should be borne in mind that, under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any natural or legal person which establishes an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between Member States, on the one hand, and institutions of the European Union, on the other, may intervene in that case.
23      According to settled case-law, the concept of an ‘interest in the result of a 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 form of order sought, and not as an interest in relation to the pleas in law or arguments put forward as such. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the decision which closes the proceedings. Therefore, more specifically, it is a direct, existing interest in the grant of the form of order that is sought by the party that the applicant for leave to intervene intends to support (order of the President of the Court of 26 September 2024, Air France-KLM and Société Air France v Ryanair and Malta Air, C‑193/24 P, EU:C:2024:812, paragraph 7 and the case-law cited).
24      In that regard, it is appropriate, in particular, to ascertain that the applicant for leave to intervene is directly affected by the contested measure and that his or her 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 applicant for leave to intervene (order of the President of the Court of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, EU:C:2020:364, paragraph 8 and the case-law cited, and order of the Vice-President of the Court of 24 June 2021, ratiopharm and Others v Commission, C‑220/21 P(I), EU:C:2021:521, paragraph 19 and the case-law cited).
25      It should also be borne in mind that, according to settled case-law, a party which, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. Thus, it is by taking account, inter alia, of the subject matter of the dispute forming the basis of the appeal, as it emerges from the forms of order sought by the main parties and the pleas put forward in support of those forms of order, that the interest in the result of the case of an applicant for leave to intervene should be assessed (see, to that effect, order of the President of the Court of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, EU:C:2020:364, paragraph 9 and the case-law cited).
26      In the present case, the action brought by ÖBB before the General Court is for the annulment in part of Article 1 of the contested decision in so far as that article holds those undertakings liable for the infringement at issue for the period prior to 7 September 2012, and the annulment of Article 2(b) of that decision which imposed jointly and severally on ÖBB a fine of EUR 16 712 000.
27      In that connection, it must be noted that ČD, who is applying for leave to intervene in support of the form of order sought by ÖBB seeking the annulment in part of Article 1 of the contested decision, cannot, by that application, in accordance with the case-law recalled in paragraph 25 above, alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties.
28      As the President of the Tenth Chamber of the General Court correctly found in paragraphs 22 and 23 of the order under appeal, the ruling on the forms of order sought by ÖBB in the context of their action brought before the General Court will have no direct impact on the legal situation of ČD, since that action is directed only at the annulment of the part of the operative part of the contested decision which concerns ÖBB. In particular, in view of the very wording of those forms of order sought, such annulment in part would have the effect – only for ÖBB and without calling into question either the nature or existence of the infringement concerned or their liability as such in that infringement – only of deferring the starting point of that infringement to a date subsequent to that found in the contested decision and giving rise to a reduction in the amount of the fine that was imposed on ÖBB.
29      In that context, it is necessary to distinguish between applicants for leave to intervene who can establish a direct interest in the ruling on the forms of order sought by the parties to the dispute in which they wish to intervene and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties (orders of the President of the Court of 10 September 2019, Council v K.Chrysostomides & Co. and Others, C‑597/18 P, EU:C:2019:740, paragraph 13 and the case-law cited, and of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, EU:C:2020:364, paragraph 13 and the case-law cited).
30      In the present case, although the situation of ČD is comparable to that of ÖBB due to the nature of the infringements found and the fines which were respectively imposed on those parties by the contested decision, the two situations nevertheless remain factually and legally distinct.
31      While it is true that ČD, like ÖBB, was an addressee of the contested decision, a decision such as the contested decision, although drafted and published in the form of a single decision, has to be treated as a bundle of individual decisions making a finding or findings of infringement against each of the undertakings to which it was addressed and, where appropriate, imposing a fine (see, by analogy, judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 18).
32      Accordingly, whether the General Court upholds or dismisses ÖBB’s action, the result of the case as set out in the operative part of the future judgment will not, as such, be likely to directly alter the legal position of ČD, since that judgment will concern only the legality of the contested decision in so far as it relates to ÖBB’s liability for the infringement for the period prior to 7 September 2012 and to the fine that was imposed on ÖBB on that basis (see, by analogy, order of the President of the Court of 30 June 2025, CRU v Hypo Vorarlberg Bank, C‑536/24 P, EU:C:2025:503, paragraph 15).
33      Thus, the President of the Tenth Chamber of the General Court was correct to find, in paragraphs 24 and 25 of the order under appeal, that the annulment in part of Article 1 of the contested decision, to the extent sought by ÖBB, cannot, as such, have any direct consequence on the amount of the fine imposed on ÖBB, either in Case T‑2/25 or in Case T‑1/25. Furthermore, any finding, in Case T‑2/25, of reduced liability of ÖBB for the infringement concerned cannot, as such and automatically, require the judge hearing Case T‑1/25 to alter the amount of the fine imposed on ČD. The fact that the infringement at issue concerns a bilateral agreement between ČD and ÖBB cannot alter that assessment.
34      That assessment is further confirmed by the fact that, as is apparent from paragraph 5 of the present order, separate and independent parts of the operative part of the contested decision apply to ČD and ÖBB respectively. In that connection, it should be borne in mind that any annulment of a Commission decision may only occur on an individual and case-specific basis, having regard to the arguments of parties that have brought an action for annulment against it, given that the scope of the annulment which it pronounces may not go further than that sought by the applicant (see, by analogy, judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraphs 52 to 59).
35      In those circumstances, the President of the Tenth Chamber of the General Court was correct to find, in paragraph 26 of the order under appeal, that ČD has established, at most, only an indirect interest in the result of the case by reason of similarities between its situation and that of ÖBB in Case T‑2/25.
36      That finding is not called into question by ČD’s argument that the action for annulment which it has brought against the contested decision before the General Court in Case T‑1/25 concerns analogous issues to those in Case T‑2/25 and that a judgment delivered in that case could compromise that action for annulment, without ČD having had the opportunity to present its submissions in support of the action in Case T‑2/25.
37      It should be noted that, if a person had to be granted leave to intervene in every case in which another person in a similar situation is a party and which may result in a judgment the grounds of which could have an effect on how his or her own position is assessed, it would become difficult, impossible even, to determine when an interest in intervening exists (order of the President of the Court of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, EU:C:2020:364, paragraph 20 and the case-law cited).
38      Furthermore, the right of the applicants to intervene to assert their rights and to set out their arguments – which flows from Article 47 of the Charter and, in particular, from the guarantees inherent in the right to an effective remedy enshrined in that article – is guaranteed by virtue of their being parties to proceedings pending before, and not yet examined by, the General Court (order of the President of the Court of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, EU:C:2020:364, paragraph 21 and the case-law cited).
39      In the present case, as the Commission noted in its written submissions, ČD has the opportunity to put forward, in Case T‑1/25, any argument it considers useful to challenge the legality of the contested decision and to respond to the entirety of the Commission’s defence, with regard to factual and individual elements such as the amount of the fine that was imposed on it and the duration of the infringement concerned. In that connection, as the President of the Tenth Chamber of the General Court noted in paragraph 31 of the order under appeal, the dismissal of ČD’s application for leave to intervene was not such as to undermine the equality of arms or the right to an effective remedy which ČD derives from Article 47 of the Charter, since that right is guaranteed by virtue of ČD being a party to a case pending before, and not yet examined by, the General Court, namely Case T‑1/25.
40      Lastly, as regards ČD’s line of argument based, in essence, on the order of President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601), it should be noted that, as the President of the Tenth Chamber of the General Court found in paragraph 31 of the order under appeal, the specific circumstances which led the President of the Court of Justice to grant Crédit Agricole SA and Crédit Agricole Corporate and Investment Bank leave to intervene in Case C‑883/19 P do not exist in the present case.
41      It is apparent from paragraphs 23 and 24 of the order of the President of the Court of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601), that a distinction must be made according to whether the addressees of a decision such as the contested decision who have brought an action at first instance apply for leave to intervene in a case concerning the very existence of an infringement of Article 101(1) TFEU, of which they have been named as co-perpetrators, or whether they apply for leave to intervene in a case concerning only the legality or the amount of the fine imposed on another of those co-perpetrators in respect of that infringement. In the first hypothesis, the fact that the applicants for leave to intervene are undertakings identified as having participated in an infringement of that provision enables them to establish a direct interest in the ruling on the forms of order sought by another participant in that infringement in the context of a case challenging the existence of that infringement, provided that they themselves brought an action for annulment against the decision relating to their own participation in the same infringement, based on substantially identical or similar grounds for annulment as those put forward in the context of that case. By contrast, as regards the second hypothesis, the applicants for leave to intervene have, in view of the individual nature of the fines imposed under that provision, only an indirect interest in the result of the case in which they wish to intervene.
42      In the present case – unlike the application for leave to intervene made by Crédit Agricole and Crédit Agricole Corporate and Investment Bank in Case C‑883/19 – the application for leave to intervene in Case T‑2/25, brought by ČD before the General Court, falls within the scope of the second of those two hypotheses. In that connection, as the President of the Tenth Chamber of the General Court noted in paragraph 31 of the order under appeal, by their claim in support of which ČD is seeking leave to intervene, ÖBB are not contesting the nature or existence of the infringement, but only its starting point. That is, moreover, confirmed by the grounds for annulment put forward by ÖBB. Furthermore, the President of the Tenth Chamber of the General Court clarified that Case T‑2/25 was not at a stage where the Courts of the European Union would be called upon to give a final ruling on points of law that might have repercussions for a case pending before the General Court, in this instance Case T‑1/25 brought by ČD. The dismissal of the application for leave to intervene was therefore not such as to undermine the equality of arms or the right to an effective remedy which ČD derives from Article 47 of the Charter.
43      In doing so, the President of the Tenth Chamber of the General Court stated, to the requisite legal standard and without erring in law, the reasons why the circumstances at issue in the case which gave rise to the order of the President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2020:601), differ from those in Case T‑2/25. ČD’s line of argument that the President of the Tenth Chamber of the General Court implied that a right to intervene in that case would exist at the appellate stage only is based on a flawed reading of paragraph 31 of the order under appeal and must be rejected as manifestly unfounded.
44      In those circumstances, the President of the Tenth Chamber of the General Court was right to find that ČD has failed to establish a direct, existing interest in the result of Case T‑2/25.
45      In the light of all the foregoing considerations, the single ground of appeal put forward by ČD in support of its appeal must be rejected and, consequently, the appeal must be dismissed in its entirety.
Costs
46      In accordance with 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.
47      Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
48      Since the Commission has applied for costs to be awarded against ČD and the latter has been unsuccessful, ČD must be ordered to bear its own costs relating to the appeal proceedings and to pay those incurred by the Commission.
On those grounds, the Vice-President of the Court hereby orders:
1.      The appeal is dismissed.
2.      České dráhy, a.s. shall bear its own costs relating to the appeal proceedings and pay those incurred by the European Commission.
Luxembourg, 17 December 2025.
A. Calot Escobar
T. von Danwitz
Registrar
Vice-President
*      Language of the case: English.