ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
3 September 2009 (*)
(Intervention – Interest in the result of the case – Confidentiality)
In Case T‑384/08,
Elliniki Nafpigokataskevastiki AE Chartofylakeiou, established in Chaidari (Greece),
Howaldtswerke-Deutsche Werft GmbH, established in Kiel (Germany),
ThyssenKrupp Marine Systems AG, established in Hamburg (Germany),
represented by U. Soltész, lawyer,
applicants,
v
Commission of the European Communities, represented by L. Flynn, M. Konstantinidis and C. Urraca Caviedes, acting as Agents,
defendant,
APPLICATION for annulment of Article 16 of Commission Decision C(2008) 3118 final of 2 July 2008 on the Measures No C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005) implemented by Greece in favour of Hellenic Shipyards (OJ 2009 L 225, p. 104),
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
makes the following
Order
Background to the dispute and procedure
1        On 20 March 2002, the private bank Trapeza Peiraios AE (‘Piraeus Bank’), which has applied to intervene in the present case, acquired a majority of the shares in a publicly-owned Greek bank, the Hellenic Bank of Industrial Development (‘ETVA’).
2        On 31 May 2002, in the context of the privatisation of the naval dockyard Hellenic Shipyards SA (‘HSY’) by the Hellenic Republic, ETVA and the employees of HSY sold their shares in HSY to a consortium composed of Howaldtswerke-Deutsche Werft GmbH (‘HDW’) and Ferrostaal AG (hereinafter referred to collectively as ‘HDW/Ferrostaal’). The consortium set up Elliniki Nafpigokataskevastiki AE Chartofylakeiou (‘GNSH’), owned equally by HDW and Ferrostaal, for the purpose of holding the shares in HSY. ThyssenKrupp AG acquired HDW in January 2005 and Ferrostaal’s shares in GNSH in November 2005. Thus, since that date, ThyssenKrupp has owned all the shares in, and controls, HSY. GNSH and HSY are owned by ThyssenKrupp Marine Systems AG, a specialised division of ThyssenKrupp. GNSH, HDW and ThyssenKrupp Marine Systems are the applicants in the main proceedings (‘the applicants’).
3        On 2 July 2008, the Commission adopted Decision C(2008) 3118 final on the Measures No C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005) implemented by Greece in favour of [HSY] (OJ 2009 L 225, p. 104) (‘the Decision’).
4        Article 16 of the Decision provides that ‘the indemnification guarantee granted by ETVA to HDW/Ferrostaal providing that ETVA would indemnify HDW/Ferrostaal for any State aid recovered from HSY … constitutes aid, which has been put into effect in contravention of Article 88(3) [EC] and which is incompatible with the common market. In addition, the guarantee is per se incompatible with the common market. The guarantee has therefore to be stopped immediately’.
5        By application lodged at the Registry of the Court of First Instance on 11 September 2008, the applicants brought an action for annulment of Article 16 of the Decision and for an order that the Commission should pay the costs.
6        The Commission contended that the application should be dismissed and that the applicants should be ordered to pay the costs.
7        By a document lodged at the Registry of the Court of First Instance on 19 December 2008, Piraeus Bank applied to intervene in the present case in support of the form of order sought by the Commission.
8        The application to intervene was served on the parties in accordance with the first subparagraph of Article 116(1) of the Rules of Procedure of the Court of First Instance. By a document lodged at the Registry of the Court of First Instance on 19 February 2009, the Commission indicated that it had no objection to the intervention and asked that certain information contained in a document annexed to its defence be treated as confidential.
9        By a document lodged at the Registry of the Court of First Instance on 19 February 2009, the applicants asked the Court to dismiss Piraeus Bank’s application to intervene.
Law
The application to intervene
Arguments of the parties
10      In support of its application to intervene, Piraeus Bank states that it is a private bank which, since 17 December 2003, has been the legal successor to ETVA, which was privatised by the Hellenic Republic through an international tender procedure completed on 20 March 2002. It also states that ETVA was the majority shareholder in HSY, which was privatised through an international tender procedure completed on 11 October 2001, and that the shares in HSY were sold to HDW/Ferrostaal by the Hellenic Republic, acting through ETVA. The Hellenic Republic had made it clear on several occasions that it was exclusively responsible for the privatisation of HSY and that the future purchaser of ETVA’s shares would have no involvement in that procedure. In order to implement the privatisation of HSY, the Hellenic Republic stated that it alone was liable to reimburse the future purchaser any State aid granted to HSY before privatisation which was declared illegal. It therefore ordered ETVA and Piraeus Bank, which succeeded it, to maintain that guarantee.
11      Piraeus Bank claims that the applicants are seeking to call into question the statement in the Decision that it is the legal successor to ETVA and that it has acted as successor to ETVA in the name of the Hellenic Republic. The action is intended to show that the guarantee at issue was not granted to the applicants from public funds but by Piraeus Bank as a private body, after the acquisition of ETVA. Piraeus Bank considers that if the action is successful, it will be financially liable even though it was not a party to the contract by which HSY was privatised.
12      Furthermore, inasmuch as the action seeks annulment only of Article 16 of the Decision, it is limited to the applicants’ relations with Piraeus Bank and not with the Hellenic Republic. According to Piraeus Bank, if Article 16 of the Decision is annulled, it could be asked to implement the indemnification guarantee in favour of HDW/Ferrostaal, even though it is not liable to do so. Finally, Piraeus Bank states that it participated in the procedure before the Commission. Consequently, Piraeus Bank considers that it is directly affected by the action and has a direct financial and legal interest in the result of the case.
13      The applicants contend that Piraeus Bank does not have an interest in the result of the case. The purpose of Piraeus Bank’s participation in the procedure before the Commission was to escape from its obligations under a guarantee contract which it had entered into under Greek civil law.
14      The applicants disagree with the way in which the facts are presented in Piraeus Bank’s application to intervene. First of all, they deny that the sale of HSY was decided on and concluded before the privatisation of ETVA. ETVA was privatised on 20 March 2002 and the sale of HSY was concluded on 31 March 2002, the date on which the guarantee referred to in Article 16 of the Decision was granted. Secondly, HDW/Ferrostaal bought its shares in HSY from a consortium of HSY’s employees and not from ETVA or the Hellenic Republic. When it sold its shares in HSY to HDW/Ferrostaal, ETVA was acting on its own behalf and not on behalf of the Hellenic Republic. Thirdly, the fact that the Hellenic Republic granted a counter-guarantee in favour of Piraeus Bank contradicts Piraeus Bank’s statement that the future purchaser of ETVA’s shares was not involved in the privatisation of HSY. Fourthly, the guarantee was granted by ETVA only after its privatisation, in May 2002, and ETVA granted the guarantee in its own name and not on behalf of the State. Fifthly, Piraeus Bank, as the majority shareholder in ETVA, did not take part in the sale of HSY and its obligation under the guarantee clause results exclusively from its decision to acquire ETVA in March 2002. Sixthly, if, as Piraeus Bank claims, it and/or ETVA had acted on behalf of the State, there would be no danger of it being asked to honour the guarantee at issue and it has therefore no interest in the validity of that guarantee.
15      The applicants also consider that Piraeus Bank would not suffer any damage if Article 16 of the Decision were annulled. Piraeus Bank has been granted a counter-guarantee by the Hellenic Republic which indemnifies Piraeus Bank against any payment it might have to make under the guarantee clause in the addendum to the contract for the sale of HSY.
16      According to the applicants, Piraeus Bank could suffer damage only if the counter-guarantee accorded to it by the Hellenic Republic constituted illegal State aid. However, although the Commission stated in recital 330 of the Decision that the counter-guarantee constituted State aid, Piraeus Bank stated that it was not referred to in the operative part of the Decision. Piraeus Bank could justify an interest in the result of the case only if it accepted that the Decision considers the counter-guarantee to be illegal State aid incompatible with the common market.
Findings of the Court
17      Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the procedure before the Court of First Instance by virtue of the first paragraph of Article 53 of the said Statute, any person establishing an interest in the result of a case, save in cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities, may intervene. The application to intervene must be limited to supporting the form of order sought by one of the parties.
18      It has consistently been held that the concept of an interest in the result of the 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 forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether his interest in the result of the case is established (order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26 and the case-law cited therein).
19      In the present case, in recital 297 of the Decision, the Commission described the guarantee referred to in Article 16 intended to indemnify the purchaser of HSY (HDW/Ferrostaal) in case incompatible aid granted before privatisation was recovered. The Commission stated that the guarantee was a two-step mechanism: first, ETVA granted a guarantee to the purchaser of HSY according to which ETVA would indemnify HDW/Ferrostaal for any aid recovered from HSY and, secondly, the State provided a guarantee to the purchaser of 57.7% of the shares of ETVA, namely, Piraeus Bank, according to which the State would pay to Piraeus Bank the whole of any amount paid by ETVA to the purchaser of HSY under the guarantee granted by ETVA to the purchaser of HSY.
20      The parties disagree as to the date on which the guarantee referred to in Article 16 of the Decision was granted by ETVA to HSY. According to the applicants, the guarantee referred to in Article 16 of the Decision was granted by ETVA after it had been privatised, that is to say, after it had been acquired by Piraeus Bank. According to Piraeus Bank, the guarantee referred to in Article 16 of the Decision was granted by ETVA before it was privatised, at a time when it was still under State control.
21      None the less, it must be noted that the parties agree, first, on the fact that the guarantee referred to in Article 16 of the Decision was granted by ETVA and, secondly, that Piraeus Bank acquired a majority shareholding in ETVA when the latter was privatised in 2002.
22      Therefore, without it being necessary to rule at this stage on whether the guarantee referred to in Article 16 of the Decision was granted by ETVA before or after its privatisation, that is to say, whether ETVA granted the guarantee to HSY on behalf of the State or on its own behalf, it must be noted that Piraeus Bank, as the purchaser of ETVA, was liable under the guarantee referred to in Article 16 of the Decision at the time that that decision was adopted.
23      Since the applicants, in their action, are seeking annulment of Article 16 of the Decision, which declares the guarantee to be aid incompatible with the common market and requires it to be stopped, it must be held that Piraeus Bank is directly affected by the contested provision.
24      In addition, as Piraeus Bank has stated, if Article 16 of the Decision is annulled, it could be asked to honour the guarantee, whereas that article provides that it should be stopped. Piraeus Bank has therefore established an interest in Article 16 of the Decision being upheld.
25      Consequently, Piraeus Bank has established a direct and actual interest in the form of order sought by the Commission, namely dismissal of the action, being granted and has therefore established an interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice.
26      Doubt is not cast on that conclusion by the applicants’ argument that Piraeus Bank has no interest in bringing proceedings by reason of the existence of a counter-guarantee granted to Piraeus Bank by the Hellenic Republic which permits it to be indemnified for any payment it is required to make under the guarantee referred to in Article 16 of the Decision. It is apparent from recital 330 of the Decision that the Commission considers that counter-guarantee to be State aid which is not in accordance with the principle of the private investor who is fully informed of the conditions of a market economy. Thus, if Article 16 of the Decision was annulled, Piraeus Bank cannot be certain that the counter-guarantee granted by the Hellenic Republic would be valid.
27      Since the application to intervene was brought in accordance with Article 115 of the Rules of Procedure and the party applying to intervene has established its interest in the result of the case, that application must be granted, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the procedure before the Court of First Instance by virtue of the first paragraph of Article 53 of the Statute.
28      Since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 22 November 2008, the application to intervene was submitted within the period laid down in Article 115(1) of those Rules and the intervener’s rights are those laid down in Article 116(2) to (4) of the Rules.
The application for confidential treatment
29      The Commission has requested, pursuant to Article 116(2) of the Rules of Procedure, that certain confidential information in the file should not be communicated to the intervener and has produced a non-confidential version of its defence for the purposes of such communication.
30      At this stage, communication to the intervener of procedural documents served on, or to be served on, the parties must therefore be restricted to a non-confidential version. A decision as to whether the application for confidential treatment is well founded will, if necessary, be made subsequently in the light of the objections or observations which may be submitted on that subject.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1.      Trapeza Peiraios AE is granted leave to intervene in Case T‑384/08 in support of the form of order sought by the Commission.
2.      The Registrar shall transmit to the intervener a non-confidential version of all procedural documents served on the parties.
3.      A period shall be prescribed within which the intervener may submit any observations it wishes to make on the application for confidential treatment. A decision on the merits of that application is reserved.
4.      A period shall be prescribed within which the intervener may submit a statement in intervention, without prejudice to its right to lodge a supplementary statement, following a decision on the merits of the application for confidential treatment.
5.      Costs are reserved.
Luxembourg, 3 September 2009.
E. Coulon
V. Tiili
Registrar
President
* Language of the case: English.