OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 14 July 2022 (1)
Cases C‑31/22 P(I), C‑32/22 P(I) and C‑74/22 P(I)
Atlas Copco Airpower,
Atlas Copco AB (C‑31/22 P(I))
Anheuser-Busch Inbev,
Ampar (C‑32/22 P(I))
Soudal NV,
Esko-Graphics BVBA (C‑74/22 P(I))
v
Magnetrol International
and European Commission
(Appeal – Intervention – Appeal on intervention – Admission of interventions in proceedings on appeal against a judgment of the General Court – Setting aside of that judgment and referral of the case back to the General Court – Implicit exclusion, by the General Court, of the interveners on appeal as parties to the proceedings following referral)
I.      Introduction
1.        The present cases expressly raise the unprecedented question whether the status of intervener, admitted by the Court of Justice at the stage of appeal proceedings, continues at the stage following the referral of the case back to the General Court. It also provides the Court with the opportunity to adjudicate on the rules relating to the admissibility of an appeal against a decision rejecting an application to intervene.
II.    Legal framework
A.      The Statute of the Court of Justice of the European Union
2.        The first paragraph of Article 39 of Protocol (No 3) on the Statute of the Court of Justice of the European Union (‘the Statute of the Court of Justice of the European Union’) provides:
‘The President of the Court of Justice may, by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in this Statute and which shall be laid down in the Rules of Procedure, adjudicate upon applications to suspend execution, as provided for in Article 278
[TFEU] and Article 157 of the EAEC Treaty, or to prescribe interim measures pursuant to Article 279
[TFEU], or to suspend enforcement in accordance with the fourth paragraph of Article 299
[TFEU] or the third paragraph of Article 164 of the EAEC Treaty.’
3.        The first, second and fourth paragraphs of Article 40 of the Statute of the Court of Justice of the European Union provide:
‘Member States and institutions of the Union may intervene in cases before the Court of Justice.
The same right shall be open to the bodies, offices and agencies of the Union and to any other person which can establish an interest in the result of a case submitted to the Court. Natural or legal persons shall not intervene in cases between Member States, between institutions of the Union or between Member States and institutions of the Union.
…
An application to intervene shall be limited to supporting the form of order sought by one of the parties.’
4.        The first and third paragraphs of Article 56 of that Statute provide:
‘An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the General Court and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility.
…
With the exception of cases relating to disputes between the Union and its servants, an appeal may also be brought by Member States and institutions of the Union which did not intervene in the proceedings before the General Court. Such Member States and institutions shall be in the same position as Member States or institutions which intervened at first instance.’
5.        Article 57 of the Statute is worded as follows:
‘Any person whose application to intervene has been dismissed by the General Court may appeal to the Court of Justice within two weeks from the notification of the decision dismissing the application.
The parties to the proceedings may appeal to the Court of Justice against any decision of the General Court made pursuant to Article 278 or Article 279 or the fourth paragraph of Article 299
[TFEU] or Article 157 or the third paragraph of Article 164 of the EAEC Treaty within two months from their notification.
The appeal referred to in the first two paragraphs of this Article shall be heard and determined under the procedure referred to in Article 39.’
6.        The first and second paragraphs of Article 61 of that Statute provide:
‘If the appeal is well founded, the Court of Justice shall quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
Where a case is referred back to the General Court, that Court shall be bound by the decision of the Court of Justice on points of law.’
B.      The Rules of Procedure of the Court of Justice
7.        Article 172 of the Rules of Procedure of the Court of Justice, headed ‘Parties authorised to lodge a response’, states:
‘Any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service on him of the appeal. The time limit for submitting a response shall not be extended.’
C.      The Rules of Procedure of the General Court
8.        Article 1(2)(c) of the Rules of Procedure of the General Court states:
‘2.      For the purposes of these Rules:
…
(c)      “party” and “parties”, unless otherwise specified, means any party to the proceedings, including interveners;
…’
9.        Article 142 of those Rules of Procedure, headed ‘Object and effects of the intervention’, provides:
‘1.      The intervention shall be limited to supporting, in whole or in part, the form of order sought by one of the main parties. It shall not confer the same procedural rights as those conferred on the main parties and, in particular, shall not give rise to any right to request that a hearing be held.
2.      The intervention shall be ancillary to the main proceedings. It shall become devoid of purpose if the case is removed from the register of the General Court as a result of a main party’s discontinuance or withdrawal from the proceedings or of an agreement between the main parties, or where the application is declared inadmissible.
3.      The intervener must accept the case as he finds it at the time of his intervention.’
10.      Article 143 of those Rules of Procedure, headed ‘Application to intervene’, provides, in paragraph 1:
‘1.      An application to intervene must be submitted within six weeks of the publication of the notice referred to in Article 79.’
11.      Article 217(1) of those Rules of Procedure states:
‘Where the decision later set aside by the Court of Justice was made after the written procedure before the General Court on the substance of the case had been closed, the parties to the proceedings before the General Court may lodge their written observations on the conclusions to be drawn from the decision of the Court of Justice for the outcome of the proceedings within two months of the service on them of the decision of the Court of Justice. This time limit may not be extended.’
12.      Article 219 of those Rules of Procedure, headed ‘Costs’, states:
‘The General Court shall decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice.’
III. Background to the disputes
13.      By 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 (OJ 2016 L 260, p. 61, ‘the decision at issue’), the European Commission found that the exemptions granted by the Kingdom of Belgium constituted an aid scheme within the meaning of Article 107(1)
TFEU that was incompatible with the internal market and had been put into effect in breach of Article 108(3)
TFEU. The Commission ordered that the aid thus granted be recovered from the beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision.
IV.    The procedure before the General Court and before the Court of Justice and the forms of order sought
14.      By applications lodged at the Registry of the General Court on 22 March and 25 May 2016, respectively, the Kingdom of Belgium and Magnetrol International NV brought actions for annulment of the decision at issue.
15.      The General Court decided to join Cases T‑131/16, Belgium v Commission, and T‑263/16, Magnetrol International v Commission, for the purposes of the oral part of the procedure and the decision closing the proceedings.
16.      By judgment of the General Court of the European Union of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), the General Court annulled the decision at issue.
17.      On 24 April 2019, the Commission lodged an appeal against that judgment.
18.      By orders of the President of the Court of Justice of 15 October 2019, Soudal NV, Esko-Graphics BVBA, Flir Systems Trading Belgium BVBA, Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower SAS, Atlas Copco AB, Wabco Europe BVBA and Celio International NV were granted leave to intervene in support of the form of order sought by Magnetrol International.
19.      By judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741), the Court of Justice:
–        set aside the judgment of the General Court of the European Union of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91);
–        rejected the first and second pleas in law in Case T‑131/16 and the first plea in law and the first part of the third plea in law in Case T‑263/16;
–        referred the case back to the General Court for a ruling on the third to fifth pleas in law in Case T‑131/16 and on the second plea in law, the second and third parts of the third plea in law and the fourth plea in law in Case T‑263/16; and
–        reserved the costs.
20.      Soudal and Esko-Graphics, and also Atlas Copco Airpower and Atlas Copco, Anheuser-Busch Inbev and Ampar, submitted observations to the General Court on the consequences of the judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741) for the result of the case, by letters of 16 and 25 November 2021, respectively.
21.      On 17 December 2021, Atlas Copco Airpower, Atlas Copco, Anheuser-Busch Inbev, Ampar Soudal and Esko-Graphics received a letter from the Registry of the General Court, dated 6 December 2021, informing them that, since those observations did not constitute a document provided for in the Rules of Procedure of the General Court, the President of the Chamber dealing with the case had decided not to place them on the file.
22.      By letter of 29 December 2021 to the President of the General Court and its Members, those six companies, referring to the grounds of the order of the President of the Court of Justice of 15 October 2019, Commission v Belgium and Magnetrol International (C‑337/19 P, not published, EU:C:2019:915), and to the case-law of the General Court, first, requested the General Court to remedy its ‘oversight’ in refusing to place their observations on the file and, second, requested confirmation of their status as interveners before the General Court.
23.      In that letter, the six companies requested the General Court to respond within five days, since they would be forced to lodge an appeal, within the prescribed time limit, against any implicit refusal to grant them the status of intervener in that case.
24.      On 10 January 2022, Atlas Copco Airpower and Atlas Copco, and also Anheuser-Busch Inbev and Ampar, lodged the appeals in Cases C‑31/22 P and C‑32/22 P, respectively.
25.      By letter of 11 January 2022, the Registrar of the General Court acknowledged receipt of the letter of 29 December 2021 from Soudal and Esko-Graphics and drew their attention to the fact that the submission of observations in Case T‑263/16 RENV by the interveners admitted to participate in the procedure before the Court of Justice in Case C‑337/19 P was not provided for in the Rules of Procedure of the General Court.
26.      On 28 January 2022, Soudal and Esko-Graphics lodged the appeal in Case C‑74/22 P.
27.      Atlas Copco Airpower and Atlas Copco claim that the Court should:
–        annul the decision contained in the letter of 6 December 2021 addressed to them by the General Court, and
–        order that Atlas Copco Airpower and Atlas Copco retain their status as interveners in Case T‑263/16 RENV following the referral of that case back to the General Court by the Court of Justice.
28.      Anheuser-Busch Inbev and Ampar claim that the Court should:
–        annul the decision contained in the letter of 6 December 2021 addressed to them by the General Court, and
–        order that Anheuser-Busch Inbev and Ampar retain their status as interveners in Case T‑263/16 RENV following the referral of that case back to the General Court by the Court of Justice.
29.      Soudal and Esko-Graphics claim that the Court should:
–        annul the decision contained in the letter of 6 December 2021 addressed to them by the General Court;
–        order that their written observations be placed on the file; and
–        declare that Soudal and Esko-Graphics retain their status as interveners in Case T‑263/16 RENV following the referral of that case back to the General Court by the Court of Justice.
30.      The Commission contends that the Court should:
–        declare the appeals inadmissible;
–        failing that, dismiss the appeals as unfounded;
–        order the appellants to pay the costs.
31.      No hearing was held.
V.      Analysis
A.      Admissibility
1.      The admissibility of the appeals in Cases C‑31/22 P and C‑32/22 P
32.      The Commission maintains that the appeals in Cases C‑31/22 P and C‑32/22 P are inadmissible in that they are based on Article 57 of the Statute of the Court of Justice of the European Union. Under that provision, an appeal may be lodged against a decision of the General Court dismissing an application to intervene, yet in those two cases the General Court did not adopt such a decision, but merely decided not to place the written observations submitted by Atlas Copco Airpower and Atlas Copco, and by Anheuser-Busch Inbev and Ampar, on the file in Case T‑263/16 RENV.
33.      I would observe at the outset, as does the Commission, that the purpose of the General Court’s letter of 6 December 2021 was to inform Atlas Copco Airpower and Atlas Copco, and Anheuser-Busch Inbev and Ampar, that the observations which they had submitted had not been registered, as they were not documents provided for in the Rules of Procedure of the General Court. In addition, it is true that Atlas Copco Airpower and Atlas Copco, and Anheuser-Busch Inbev and Ampar, did not formally submit an application to intervene. From a procedural viewpoint, the decision contained in the contested letter is therefore not a dismissal of an application to intervene and does not at first sight appear to be capable of being the subject matter of an appeal under Article 57 of the Statute of the Court of Justice of the European Union.
34.      However, a formalistic interpretation of that provision does not seem to me to be satisfactory. Having regard to the very specific context of those cases, characterised in particular by the fact that the companies concerned were entitled to believe that they retained their status as interveners following the referral of the case back to the General Court, the mere fact that the decision of the General Court does not expressly reject their status as interveners does not seem to me to be capable in itself of precluding that, in reality, that was implicitly the position.
35.      In fact, Atlas Copco Airpower and Atlas Copco, and Anheuser-Busch Inbev and Ampar, lodged before the General Court observations ‘pursuant to Article 217 of the Rules of Procedure of the General Court’, which refers to the parties to the proceedings before the General Court. In that sense, they rely on that status, as interveners.
36.      In those circumstances, the General Court’s decision not to place the observations on the file implicitly but necessarily includes a decision denying Atlas Copco Airpower and Atlas Copco, and Anheuser-Busch Inbev and Ampar, the status of interveners.
37.      Such an implicit decision, which to my mind has the same effects as a decision dismissing an application to intervene or a decision terminating an intervention, may, on the same basis as a decision terminating an intervention, be the subject of an appeal under Article 57 of the Statute of the Court of Justice of the European Union.
38.      That is a fortiori the case since the interpretation of that provision which I propose is in fact the only one capable of guaranteeing judicial protection to applicants to intervene whose status as interveners was recognised before the Court of Justice and, ultimately, of ensuring the effectiveness of the right to intervene laid down in Article 40 of the Statute, in so far as no other remedy is available to them.
39.      First, I believe that a party who has the status of intervener before the Court of Justice cannot be required to lodge a formal application to intervene before the General Court, with the sole aim of then being able to lodge an appeal against the decision dismissing that application, which will systematically be adopted, since the application would always be dismissed as being out of time as it would clearly not have been lodged within six weeks of the publication of the application initiating proceedings, as prescribed in Article 143 of the Rules of Procedure of the General Court.
40.      Nor, second, does an appeal against the General Court’s decision closing the proceedings constitute a conceivable remedy, since such an appeal is available only to the parties to the proceedings before the General Court and therefore to the parties whose status as interveners before it has already been recognised.
41.      In those circumstances, I am of the view that the appeals in Cases C‑31/22 P and C‑32/22 P should be held admissible.
2.      The admissibility of the appeal in Case C‑74/22 P
42.      The Commission maintains that the appeal in Case C‑74/22 P is inadmissible. It observes, first, that the decision to which the appeal relates does not come within any of the categories referred to in Article 56 of the Statute of the Court of Justice of the European Union and that Soudal and Esko-Graphics cannot therefore base their appeal on that provision.
43.      The Commission claims, second, that even on the assumption that the appeal could be reclassified as an ‘appeal … based on Article 57 of the Statute of the Court of Justice of the European Union’ – which the Commission disputes – it would also have to be dismissed, for the same reasons as those put forward in the context of Cases C‑31/22 P and C‑32/22 P.
In the Commission’s contention, such an appeal is in any event out of time.
44.      I am of the view that, in so far as it is based on Article 56 of the Statute of the Court of Justice of the European Union, the appeal should be declared inadmissible, since the decision under appeal does not close the proceedings or dispose of a procedural issue concerning a plea of lack of competence or inadmissibility.
45.      On the one hand, it must be stated that the examination of Case T‑263/16 RENV is continuing before the General Court following the adoption of the decision under appeal, which does not settle any aspect of the substantive dispute.
46.      On the other hand, although disputes relating to an application to intervene do indeed constitute procedural issues, they do not, conversely, concern a plea of inadmissibility or lack of competence, the only procedural issues referred to in Article 56 of the Statute of the Court of Justice of the European Union. Pleas of inadmissibility or lack of competence are subject, before the General Court and also before the Court of Justice, to specific rules (2) and the purpose of such pleas is that the Court dealing with the matter should close the proceedings without a discussion of the substance of the case. Furthermore, the fact that they may have the effect of closing the proceedings justifies the choice to make appeals against those decisions subject to the same rules as those brought against decisions closing the proceedings after the Court dealing with the matter has dealt with the substance of the case in question.
47.      Issues relating to intervention, conversely, are different in nature. As the Rules of Procedure of the General Court make clear, intervention is to be ancillary to the main proceedings, (3) and decisions relating to intervention are not in any way capable of closing the proceedings.
48.      In those circumstances, I am of the view that the decision under appeal cannot be the subject of an appeal on the basis of Article 56 of the Statute of the Court of Justice of the European Union and that the appeal in Case C‑74/22 P should therefore be declared inadmissible in that respect.
49.      However, it also follows from the case-law of the Court of Justice that, in order to give effect to an application, the Court before which the application is made may, on the basis of an assessment of the application in its entirety, interpret an action outside the express denomination given to it by the applicant. (4) Likewise, the Court of Justice has also examined two alternative bases of an appeal, without confining itself to the basis indicated by the appellant. (5)
50.      I am therefore of the view that, in order to give effect to the appeal in question, the Court may classify it as an ‘appeal lodged on the basis of Article 57 of the Statute of the Court of Justice of the European Union’, since it is clear from the parties’ claims that, by their appeal, they are challenging a decision of the General Court consisting in denying them the status of interveners.
51.      However, that reclassification does not, to my mind, permit the admissibility of the appeal in Case C‑74/22 P to be accepted. Like the Commission, I am of the view that the appeal is in any event out of time.
52.      In accordance with Article 57 of the Statute of the Court of Justice of the European Union,
Soudal and Esko-Graphics ought to have lodged their appeal within 2 weeks from the decision dismissing the application to intervene or disposing of the intervention, with a single extension on account of distance of 10 days.
53.      The decision dismissing the application to intervene is contained in the General Court’s letter of 6 December 2021, which was notified to the parties on 17 December 2021. It was by that letter that the General Court implicitly but necessarily denied Soudal and Esko-Graphics the status of interveners, with the consequence that the appeal ought to have been lodged no later than 10 January 2022.
54.      The appeal is therefore, in my view, inadmissible, on the ground that it was lodged out of time.
55.      That conclusion is not called in question by any of the parties’ arguments claiming, first, that the starting point of the period for lodging the appeal is not the letter of 6 December 2021 but the letter of 11 January 2022 alleging, second, the existence of an excusable error on the part of Soudal and Esko-Graphics.
56.      As regards, in the first place, the starting point of the period for lodging the appeal, I note that the General Court’s second letter of 11 January 2022 is purely confirmatory in nature. It is settled case-law that a decision merely confirms a previous decision where it contains no new factor by comparison with the previous measure and was not preceded by a reconsideration of the situation of the addressee of that previous measure. (6)
57.      In fact, the letter of 11 January 2022 is a response to the request by Soudal and Esko-Graphics for confirmation that they continued to participate in the proceedings as interveners, in which the General Court merely reiterates the conclusions set out in the letter of 6 December 2021. In addition, I note that Soudal and Esko-Graphics themselves state, in response to questions put by the Court, that ‘the second letter confirmed the content of the first letter’.
58.      The letter of 11 January 2022 is therefore merely a decision confirming the letter 6 December 2021 and, consequently, cannot be considered to be the starting point for the lodging of an appeal.
59.      As regards, in the second place, the existence of an excusable error as to the period prescribed for lodging an appeal on the basis of Article 57 of the Statute of the Court of Justice of the European Union, the Court of Justice consistently holds that, in the context of the rules relating to time limits for bringing actions, the concept of ‘excusable error’ justifying a derogation from those rules can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person. (7)
60.      To my mind, such circumstances do not apply. It is true that the decision of the General Court contained in the letter of 6 December 2021, in that it does not expressly reject the status of interveners of Soudal and Esko-Graphics, is ambiguous. Nonetheless, that ambiguity alone cannot suffice to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person.
61.      In particular, I note that, in response to the General Court’s letter of 6 December 2021, Soudal and Esko-Graphics submitted a request to the General Court asking it to remedy the oversight that had led it not to accept their observations and to confirm their status as interveners.
62.      More importantly still, I emphasise that, by their letter to the General Court of 29 December 2021, Soudal and Esko-Graphics requested the General Court to respond to their request for confirmation of their status as interveners within five days, since, in the event that the General Court should refuse such confirmation, they would be ‘forced to appeal within the prescribed time limit any implicit refusal to grant [them] the status of interveners’.
63.      It should therefore be inferred from those factors not only that Soudal and Esko-Graphics had correctly interpreted the General Court’s letter of 6 December 2021 as implicitly but necessarily denying them the status of interested parties, but, above all, that they were fully aware of the time limits governing the lodging of an appeal against such a decision, as their primary intention was to lodge their appeal within the prescribed period.
64.      The fact that the appeal was lodged outside that period is therefore the consequence not of an excusable error caused by the ambiguity of the decision of the General Court contained in the letter of 6 December 2021, but solely of the conduct of Soudal and Esko-Graphics.
65.      In those circumstances, I am of the view that the appeal in Case C‑74/22 P should be dismissed as inadmissible, on the ground that it was out of time.
B.      Substance
66.      I must emphasise at the outset that the substantive considerations which I am about to develop apply only to Cases C‑31/22 P and C‑32/22 P, since I consider that the appeal in Case C‑74/22 P should be declared inadmissible. I would make clear, however, that if the Court should not share my analysis, the following considerations could also be transposed to that case.
67.      In support of their appeals, Atlas Copco Airpower, Atlas Copco, Anheuser-Busch Inbev and Ampar (‘the appellants’) raise a single ground of appeal, which is subdivided into two parts. In the first part of the single ground of appeal, they claim that the General Court erred in law in failing to have regard to its own case-law, according to which the parties admitted to intervene in the appeal retain their status in the proceedings following the referral of the case back to the General Court. In the second part of the single ground of appeal, the appellants also maintain that the General Court failed to have regard to Article 217(1) of its the Rules of Procedure. They submit that it follows from the case-law of the General Court that that provision must be interpreted as meaning that the expression ‘parties to the proceedings before the General Court’, which refers to the parties authorised to lodge their observations after the case has been referred back by the Court of Justice, also includes the parties admitted to intervene in the proceedings on appeal.
68.      As the two parts of the single ground of appeal both raise the question of the continuity of the status of intervener, I shall examine them together.
69.      I shall begin my analysis by pointing out that while the provisions applicable to intervention are not unequivocal on the question of the continuity of the status of intervener (section 1), the case-law relating to intervention does however provide some useful pointers in favour of the continuation of the status of intervener when the case has been referred back to the General Court (section 2). I shall explain that, in my view, that continuation also follows from the functional continuity of the proceedings on appeal and the proceedings following referral (section 3). Lastly, I shall add certain considerations relating to the relationship between the solution which I propose and the practice of what are known as ‘pilot’ cases (section 4).
1.      The ambiguity of the provisions relating to intervention
70.      The question of the continuity of the status of intervener recognised before the Court of Justice at the stage of the proceedings after the case has been referred back to the General Court is directly linked to the interpretation of Article 217(1) of the Rules of Procedure of the General Court, which governs the proceedings on referral after the Court of Justice has set aside a judgment or an order.
71.      That provision authorises ‘the parties to the proceedings before the General Court’ to lodge their written observations on the conclusions to be drawn from the decision of the Court of Justice, (8) where the written procedure on the substance of the case was closed before the proceedings on appeal. While the expression ‘parties before the General Court’ also refers to the interveners before the General Court, (9) the question remains whether it also designates the interveners admitted by the Court of Justice at the stage of the appeal.
72.      The provisions governing intervention do not provide a clear answer to that question and, in the absence of an express provision that an intervention admitted at the stage of the appeal is to continue, it is permissible to ask whether the silence of the provisions should not be interpreted as implicit confirmation that the intervention ceases to exist at the close of the proceedings before the Court of Justice.
73.      That interpretation might be reinforced by the fact that the relevant provisions confirm expressis verbis for the continuation of the intervention in analogous situations. First, there is no doubt, under Article 217(1) of the Rules of Procedure of the General Court, that the parties admitted to intervene in the procedure on the substance before the General Court are authorised to intervene in the proceedings after the case has been referred back by the Court of Justice. Second, Article 172 of the Rules of Procedure of the Court of Justice provides that parties who have intervened on the substance before the General Court may intervene in the procedure on appeal, provided that they have an interest in the result of the appeal. The absence of an equivalent provision in the contrary situation confirming unequivocally that the intervention admitted by the Court of Justice at the stage of the appeal is to continue might be interpreted a contrario as showing that it ceases to exist.
74.      To my mind, however, such an interpretation is open to debate. First of all, it is clear from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union that the right to intervene is dependent on the intervener’s establishing an interest in the result of the case. If such an interest exists at the stage of the procedure on appeal – for which Article 172 of the Rules of Procedure of the Court of Justice makes express provision – there is no reason to suppose that it ceases to exist when the case is referred back to the General Court, especially given that the result of the case is still, by definition, undetermined. (10)
75.      Next, while it is true that, according to Article 40 in conjunction with the third paragraph of Article 56 of the Statute of the Court of Justice of the European Union, ‘privileged’ interveners, namely the Member States and institutions of the Union, may always intervene in the procedure on appeal, (11) it cannot be inferred a contrario from that provision that non-privileged parties can never intervene, but only that such intervention is dependent on the existence of an interest in the result of the case.
76.      Lastly, having regard to the proven interest of the intervener in the result of the case, confirmed by the Court of Justice at the stage of the appeal, the fact that it is impossible to submit a successful application to intervene in the proceedings following referral of the case, as it would be out of time, (12) may be interpreted as implicit confirmation of the continuing nature of the intervention.
77.      In those circumstances, it seems to me that the applicable provisions do not in themselves permit an answer to the question of the continuation of the status of intervener at the stage of the proceedings after a case has been referred back to the General Court. I shall therefore examine the problem relating to the duration of the intervention in the light of the case-law which in my view contains information that will be of use to the solution of the question before the Court.
2.      The case-law relating to the duration of the intervention
78.      First and foremost, the solutions adopted by the case-law may seem contradictory. However, they fit together comfortably from the aspect of the interest in the result of the case which underlies the right to intervene.
79.      The first of those solutions follows from the General Court’s case-law on which the appellants rely: according to that case-law, the parties admitted to intervene in the appeal retain their status in the proceedings following the referral of the case back to the General Court, and are thus allowed to submit their observations on the conclusions to be drawn from the judgment of the Court of Justice. Contrary to the Commission’s assertion in its written observations, that solution does not rest on two isolated judgments which expressly established and confirmed it, (13) but may also be inferred from the way in which the interveners were treated in numerous cases referred back to the General Court. (14) In accordance with the reasons stated by the General Court in the case that gave rise to the judgment in Spain and Others v Commission, (15) that solution is based on considerations of the sound administration of justice, in that it favours the continuation of the debate following the referral of the case by the Court of Justice.
80.      The second of those solutions found in the case-law allows the parties to the dispute to plead that an intervention admitted at an earlier stage in the proceedings is inadmissible. The fact that the intervener has already been granted leave to intervene thus does not preclude a review of the admissibility of the intervention, whether in the substantive proceedings (16) or in the proceedings on appeal. (17) It follows that the right to intervene is never acquired definitively and may be called in question where, owing to a change in circumstances, the intervener no longer has an interest in the result of the case. (18)
81.      I would emphasise that those solutions taken from in the case-law do not follow expressly from the provisions governing the procedure before the Courts of the European Union. On the contrary, they are underpinned by the logic underlying the right to intervene, recognition of which is based on the existence of a direct and present interest in the result of the case. (19) In fact, if the General Court may accept in the proceedings after referral the interveners admitted on appeal, that is because that interest continues to be present, in principle, until the case is definitively settled; and it is because that interest may be lost in the course of the proceedings, owing to a possible change in circumstances, that the parties may challenge at any point in the proceedings the admissibility of an intervention that was previously admitted.
82.      It therefore follows from the provisions and the case-law relating to intervention that the status of intervener confers on the party concerned a procedural right and the related procedural guarantees, which reflect that party’s interest in the result of the case, and that that status may be challenged where a subsequent change in circumstances results in the loss of the interest in question.
83.      Where the decision of the General Court is set aside in part and the matter is referred back by the Court of Justice, it follows, to my mind, that the party admitted to intervene at the stage of the appeal should, in principle, retain the capacity to intervene, in so far as the interest which that party has in the result of the appeal necessarily continues to be a present interest until the case is definitively settled.
3.      The functional continuity of the procedure when the case is referred back to the General Court
84.      The continuation of the interest in the result of the case is also the consequence of the functional continuity between the procedure on appeal and the proceedings following the referral, as the latter proceedings serve to draw conclusions from the former.
85.      First, Article 219 of the Rules of Procedure of the General Court reveals that continuity, since it reserves for the General Court the decision on the costs incurred by the intervener in the procedure on appeal, in so far as the merits of the intervention can be fully assessed only at the time when the case is definitively resolved.
86.      Second, such continuity in my view is also a consequence of the possibility for the Court of Justice to settle the substance of the case following the appeal, as the case is referred back to the General Court only where the state of the proceedings does not permit the Court of Justice to give final judgment. Such a referral is therefore entirely dependent on the stage which the case has reached before the General Court and to my mind a case which has been referred back to the General Court cannot be considered to be distinct from the appeal which ordered its referral, when the procedure is necessarily considered to be a single procedure when it is settled by the Court of Justice.
87.      I would observe in that respect that, if the continuation of the status of intervener at the referral stage should be rejected, there would necessarily be a dissymmetry in the treatment of the parties who were admitted to intervene before the Court of Justice, depending on the state of the proceedings at the close of the procedure on appeal. Where the Court of Justice adjudicates on the substance of the case following the appeal, the parties admitted to the appeal would thus be permitted to intervene up to the point at which the case is definitively settled. In the opposite case, they would lose their status in the proceedings following the referral. To my mind, there is no justification for such a differentiation of the rights recognised to the interveners. Furthermore, if a second appeal should follow a referral, that solution could lead to two successive interventions before the Court of Justice, while the party concerned would be excluded from the discussion that would in the meantime take place before the General Court. The ensuing fragmentation of the status in the proceedings seems difficult to justify in the light of the general scheme of the right to intervene, which is based on a consideration of the intervener’s interest in the result of the case, and on the functional continuity between the procedure on appeal and the proceedings following referral.
88.      In those circumstances, the systemic considerations, based on the coherence of the solutions adopted by the case-law and on the continuity established between the procedure on appeal and the subsequent referral, argue in my view in favour of the intervention being maintained after the case has been referred back to the General Court by the Court of Justice, subject to any loss of the interest in intervening resulting from a subsequent change in circumstances.
4.      Further considerations relating to the ‘pilot cases’ practice
89.      By way of reminder, the practice of what are known as ‘pilot cases’ consists in dealing with the case in question as a matter of priority, while the proceedings pending in similar cases are stayed until such time as the pilot case is settled. By favouring the focusing of the forensic discussion, that practice aims to ensure the homogeneous and efficient treatment of similar cases, while making it possible to economise the resources mobilised by the General Court.
90.      The treatment of the appellants in the present case may therefore be explained by the General Court’s desire to prevent any delays resulting from the admission of interventions at the referral stage. However, the solution which I propose does not seem to be capable of affecting the priority status recognised in this instance to the case of Magnetrol International v Commission (T‑263/16), which was designated by the General Court as the pilot case and in which the appellants seek to intervene.
91.      In particular, I find it difficult to subscribe to the Commission’s argument that the admission of interventions in the pilot case after it has been referred back to the General Court would amount to a ‘circumvention’ of the decision to stay the proceedings in Cases T‑278/16 and T‑370/16, initiated by the actions brought by the appellants. The admissibility of an intervention is assessed independently of the fate of the person concerned in his or her capacity as a main party in a different case, unless the result of that case affects his or her interest in intervening. In particular, it is settled case-law that the fact that an applicant is out of time, and is thus precluded from challenging the decision addressed to him or her by means of a direct action, does not prevent him or her from intervening in proceedings initiated by another party to whom the same decision was addressed. (20) If the application to intervene that is granted in those circumstances is not regarded as an attempt to circumvent the time limit for bringing an action, that is because the admissibility of the intervention is assessed exclusively by reference to the applicant’s interest in the result of the case.
92.      In the light of the foregoing observations, the desire to ensure the efficient treatment of the pilot case (21) does not in my view justify removing the status of intervener, recognition of which confers on the person concerned the right to participate in the proceedings and the guarantees that flow from that right.
93.      In a situation such as that of the present case, where the interveners are among the addressees of the decision that is contested in the pilot case, it seems appropriate, moreover, to concentrate the debate before the General Court by admitting the intervention of the parties claiming a direct interest in the result of the case, as the result of the pilot case will determine the outcome of the cases which have been stayed.
VI.    Conclusion
94.      In the light of the foregoing observations, I propose that the Court should:
–        dismiss the appeal in Case C‑74/22 P as inadmissible;
–        set aside the decision of the General Court of the European Union contained in the letter of 6 December 2021 in Cases C‑31/22 P and C‑32/22 P.
1      Original language: French.
2      Article 130(1) of the Rules of Procedure of the General Court and Article 151(1) of the Rules of Procedure of the Court of Justice.
3      Article 142(2) of the Rules of Procedure of the General Court.
4      Order of 28 June 2011, Verein Deutsche Sprache v Council (C‑93/11 P, not published, EU:C:2011:429, paragraphs 20 and 21).
5      Judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission (C‑654/17 P, EU:C:2019:634, paragraphs 27 and 28).
6      Judgments of 14 April 1970, Nebe v Commission (24/69, EU:C:1970:22, paragraph 145), and of 10 December 1980, Grasselli v Commission (23/80, EU:C:1980:284); and order of 7 December 2004, Internationaler Hilfsfonds v Commission (C‑521/03 P, not published, EU:C:2004:778, paragraph 41).
7      Judgment of 15 December 1994, Bayer v Commission (C‑195/91 P, EU:C:1994:412, paragraph 26), and order of 14 January 2010, SGAE v Commission (C‑112/09 P, EU:C:2010:16, paragraph 20).
8      A similar provision is applicable where a case is referred back to the General Court following a review (Article 222(1) of the Rules of Procedure of the General Court).
9      Article 1(2)(c) of the Rules of Procedure of the General Court.
10      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the case is to be referred back to the General Court following the procedure on appeal if the Court does not itself give final judgment in the matter, as the state of the proceedings does not permit it to do so.
11      See Muguet-Poullenec, G., and Domenicucci, D.P., ‘L’intervention devant le Tribunal après l’entrée en vigueur du nouveau règlement de procédure: entre droit d’ingérence et urgence judiciaire’, Revue Lamy de la concurrence, No 45, 2015.
12      Article 143(1) of the Rules of Procedure of the General Court. See also point 39 of this Opinion.
13      See judgments of 23 March 1993, Gill v Commission (T‑43/89 RV, EU:T:1993:24), and of 23 September 2020, Spain and Others v Commission (T‑515/13 RENV and T‑719/13 RENV, EU:T:2020:434).
14      See, in particular, judgments of 14 April 2015, Ayadi v Commission (T‑527/09 RENV, not published, EU:T:2015:205); of 2 July 2015, France and Orange v Commission (T‑425/04 RENV and T‑444/04 RENV, EU:T:2015:450); of 15 December 2016, DEI v Commission, T‑169/08 RENV, EU:T:2016:733); of 25 January 2017, Rusal Armenal v Council (T‑512/09 RENV, EU:T:2017:26); of 21 November 2018, Stichting Greenpeace Nederland and PAN Europe v Commission (T‑545/11 RENV, EU:T:2018:817); of 14 December 2018, Hamas v Council (T‑400/10 RENV, EU:T:2018:966); and of 24 September 2019, Xinyi PV Products (Anhui) Holdings v Commission (T‑586/14 RENV, EU:T:2019:668).
15      Judgment of 23 September 2020 (T‑515/13 RENV and T‑719/13 RENV, EU:T:2020:434, paragraph 65).
16      See judgments of 16 December 1999, Acciaierie di Bolzano v Commission (T‑158/96, EU:T:1999:335, paragraph 33); of 10 February 2000, Nederlandse Antillen v Commission (T‑32/98 and T‑41/98, EU:T:2000:36; paragraph 30); of 9 September 2009, Diputación Foral de Álava and Others v Commission (T‑30/01 to T‑32/01 and T‑86/02 to T‑88/02, EU:T:2009:314, paragraph 95); and of 12 April 2019, Deutsche Lufthansa v Commission (T‑492/15, EU:T:2019:252, paragraph 98).
17      See, in particular, judgment of 8 July 1999, Hüls v Commission (C‑199/92 P, EU:C:1999:358, paragraph 52), and Opinion of Advocate General Cosmas in that case (EU:C:1997:358, points 10 to 17).
18      By way of illustration, a parent company intervening in a case relating to the State aid granted to one of its subsidiaries might lose its status as intervener following the sale of the undertakings which had benefited from the aid at issue.
19      See, in particular, judgment of 13 September 2010, Greece and Others v Commission (T‑415/05, T‑416/05 and T‑423/05, EU:T:2010:386, paragraphs 64 and 65).
20      By way of example, see order of 17 February 2010,
Fresh Del Monte Produce v Commission (T‑587/08, EU:T:2010:42, paragraphs 30 to 32).
21      In the order of the President of the Court of Justice of 10 September 2019, Council v K. Chrysostomides & Co. and Others (C‑597/18 P, not published, EU:C:2019:743), the Court refers in that context to the risk that the interventions represent for the treatment of the pilot cases. In my view, however, the observations made in that respect in paragraph 19 of that order do not appear to be decisive. The order in question was made in a factual context that was appreciably different from the cases examined in this instance, in an action for damages, where the applications to intervene were dismissed on the ground that the applicants to intervene had no direct interest in the result of the case (see paragraphs 14 to 17 of that order). The possible impact of the interventions on the way in which the pilot case would be dealt with was envisaged by the Court of Justice only as an ancillary matter.