ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
25 June 2015 (*)
(Intervention — Confidentiality)
In Case T‑444/14,
Furukawa Electric Co. Ltd, established in Tokyo (Japan), represented by C. Pouncey, A. Luke and L. Geary, Solicitors,
applicant,
v
European Commission, represented by H. van Vliet, C. Giolito and A. Biolan, acting as Agents, and by M. Johansson, lawyer,
defendant,
APPLICATION for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables)
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Background
1        By Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’), the Commission found that a number of undertakings, including the applicant, Furukawa Electric Co. Ltd, and the companies Fujikura Ltd (‘Fujikura’) and Viscas Corporation (‘Viscas’), had infringed Article 101 TFEU and Article 53 EEA by participating in a cartel in the (extra) high voltage underground and/or submarine power cables sector (Article 1 of the contested decision).
2        In that decision, the Commission also imposed, in respect of that infringement, various fines on the undertakings referred to in Article 1 of that decision, including, on an individual basis, a fine of EUR 8 858 000 on the applicant, and, on a joint and several basis, a fine of EUR 34 992 000 on the applicant, Fujikura and Viscas (Article 2(n) and (p) of the contested decision). In addition, the Commission ordered the undertakings referred to in Article 1 of the contested decision, including the applicant, Fujikura and Viscas, immediately to bring to an end the infringement, in so far as they had not already done so, and to refrain from any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect (Article 3 of the contested decision). That decision was addressed both to the applicant and to Fujikura and Viscas (Article 4 of the contested decision).
3        It is apparent from the grounds of the contested decision that the Commission found that both the applicant and Fujikura had participated directly in the abovementioned cartel during the period between 18 February 1999 and 30 September 2001 (recital 811 of the contested decision), and that Viscas had participated directly in the infringement during the period between 1 October 2001 and 28 January 2009 (recital 815 of the contested decision). Moreover, the Commission essentially took the view that the applicant and Fujikura had to be held liable for the anti-competitive conduct of Viscas on the ground that, during the period considered, they had jointly exercised decisive influence over its conduct on the market (recitals 816 to 853 of the contested decision).
Procedure
4        By application lodged at the Court Registry on 12 June 2014, the applicant brought an action essentially seeking (i) the annulment of Article 1(9)(a) of the contested decision, in so far as it finds that the applicant infringed Article 101 TFEU and Article 53 of the EEA Agreement during the period between 18 February 1999 and 30 September 2001 or, in the alternative, the annulment of the same article of the contested decision in so far as that decision finds that that infringement by the applicant of Article 101 TFEU and Article 53 of the EEA Agreement began on 18 February 1999 and/or continued after 11 June 2001, (ii) the annulment of the fine which was imposed on it pursuant to Article 2(n) of the contested decision or, in the alternative, a reduction of that fine, (iii) to receive any reduction of the fine which was imposed on it, jointly and severally with Viscas, pursuant to Article 2(p) of the contested decision, should the Court grant such a reduction to Viscas in the judgment on its action.
5        The Commission has contended that the action should be dismissed and the applicant ordered to pay the costs.
6        By document lodged at the Court Registry on 29 October 2014, Viscas sought leave to intervene in the present case in support of the form of order sought by the applicant.
7        By letter of 14 November 2014, the application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.
8        By document lodged at the Court Registry on 5 December 2014, the Commission essentially requested the Court to reject Viscas’ application to intervene.
9        By document lodged at the Court Registry on 8 December 2014, the applicant requested the Court to grant Viscas’ application to intervene and to order the Commission to pay the costs.
10      By separate documents lodged at the Registry on 8 December 2014 and 9 January 2015, the applicant requested that, in accordance with Article 116(2) of the Rules of Procedure, certain documents and information contained both in the application and the annexes thereto and in the defence be excluded from the file communicated to Viscas, if its intervention were allowed. To that end, the applicant produced a non-confidential version of the documents concerned.
Law
Arguments of the parties
11      Viscas, supported in all essential respects by the applicant, claims that it has established an interest in the result of the case submitted to the Court in the present case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice. In that regard, it submits essentially that, in the contested decision, it was considered to be liable, with the applicant, for a single infringement in respect of the period between 1 October 2001 and 28 January 2009 and that it was ordered jointly and severally with the applicant to pay a single fine in respect of the period concerned. It also maintains that, according to the case-law, it is irrelevant that it also has an independent right of action against the contested decision. Lastly, Viscas claims that the pleas in law and main arguments put forward by the applicant have direct implications for the separate action which it itself has brought before the Court against the contested decision, since they reinforce the pleas relied on in support of that action. In particular, Viscas asserts that, if the Court were to uphold the applicant’s form of order seeking to contest the applicant’s participation in the infringement during the period between 18 February 1999 and 30 September 2001, that result would support Viscas’ seventh plea seeking a reduction of the fine imposed on it. Similarly, according to Viscas, if the Court were to uphold the applicant’s form of order submitted in the alternative and conclude, in that regard, that the applicant did not participate in the infringement after 30 September 2001, that would also support Viscas’ own challenge to the calculation of the fine within the context of its fifth plea. Finally, Viscas submits that Furukawa’s arguments seeking to substantiate its request for a reduction of the fine which was imposed on it automatically affect the amount of the fine imposed on Viscas, since the fine in question is a single fine imposed jointly and severally on those two undertakings.
12      The Commission raises objections in respect of that application to intervene. First, the Commission notes that Viscas has lodged its own action seeking annulment of the contested decision and that, in those circumstances, its intervention does not favour the economy of procedure. Secondly, the Commission submits essentially that Viscas does not have a right to intervene in so far as Furukawa seeks the annulment of parts of the operative part of the contested decision which do not concern Viscas and that, moreover, the majority of the pleas raised by Furukawa support that request. Lastly, on the assumption that the application should be interpreted as being directed against the fine which was imposed on the applicant, jointly and severally with Fujikura and Viscas, the Commission claims, in essence, that Viscas does not have an interest in supporting that form of order. In particular, it submits that, if any of the pleas in support of that form of order, raised by the applicant, were upheld by the Court, the applicant would no longer be jointly liable with Fujikura and Viscas for payment of that fine, which would give rise to a financial risk for Viscas.
Assessment of the President
13      The application to intervene was submitted in accordance with Article 115 of the Rules of Procedure.
14      Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, except in cases between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.
15      It is settled case-law 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 or arguments put forward. The expression ‘result of the case’ 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 of 17 February 2010 in Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2010:42, paragraph 25 and the case-law cited).
16      As the Commission observes, in essence, in recital 693 of the contested decision, competition law refers to the activities of undertakings. The concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. The Court of Justice has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (order in Fresh Del Monte Produce v Commission, EU:T:2010:42, paragraph 15 above, paragraph 26 and the case-law cited).
17      In the present case, the Commission took the view that, during the period between 18 February 1999 and 30 September 2001, the applicant had participated directly in the cartel at issue and that, during the period between 1 October 2001 and 28 January 2009, the date on which the infringement found by the contested decision ended, the applicant and Viscas formed, in conjunction with Fujikura, an economic unit for the purposes of the application of the competition rules, since Viscas did not determine its conduct independently on the market, but was a subsidiary owned by the applicant and Fujikura. The contested decision observes, in particular, that there is evidence which confirms that both the applicant and Fujikura exercised decisive influence over the commercial policy of Viscas (recitals 815 to 852 of the contested decision).
18      Within the context of the present action, as is apparent from paragraph 4 above, the applicant seeks, in particular, the annulment of the contested decision in so far as that decision found that it had participated in the infringement during the period between 18 February 1999 and 30 September 2001 or, in the alternative, from 18 February 1999 and/or after 30 June 2001, and also the annulment or reduction of the fine which was imposed on it in respect of the abovementioned period.
19      It must be stated that, in the contested decision, the applicant was considered to be liable for a single and continuous infringement, both by virtue of its direct participation during the first period referred to in paragraph 17 above and by virtue of its decisive influence over the conduct of Viscas in respect of the second period, also referred to in paragraph 17 above. It must also be stated that, as regards that second period, the applicant and Viscas were considered, for the purposes of the application of Article 101 TFEU, to be a single undertaking, with the result that the applicant was held liable for the infringement in respect of that second period only on the basis of the existence of an economic unit in particular between it and Viscas. In addition, in respect of that second period, the applicant and Viscas were ordered, jointly and severally, to pay a single fine.
20      Admittedly, the form of order principally sought by the applicant seeks the annulment of the contested decision only in so far as that decision found that it had participated directly in the infringement during the first period referred to above and individually imposed on it a fine in respect of that first period.
21      Moreover, whilst the applicant seeks to benefit from a reduction of the fine which was imposed on it jointly and severally with Viscas and Fujikura, this is only in the event that, in its judgment on Viscas’ action, the Court should grant Viscas such a reduction. Consequently, the treatment given by the Court to that form of order cannot affect Viscas, inasmuch as, in any event, it would be necessary for the Court to rule on that form of order only in a situation in which it had already ruled on any application by Viscas for a reduction of the fine, made within the context of Viscas’ own action.
22      However, the annulment by the Court of the contested decision in so far as it found that the applicant had participated directly in the infringement at issue during the first period would be capable, as Viscas claims, of affecting the assessment by the Court of Viscas’ own participation in that infringement, since the Commission essentially took the view that, during the second period, the applicant had continued to participate in that infringement through the medium of Viscas, over the conduct of which it exercised decisive influence. The same would apply if the Court were to uphold the applicant’s form of order submitted in the alternative and seeking the annulment of the decision, in particular in so far as it found that the participation of Furukawa in the cartel at issue had continued after 30 June 2001. For the same reasons, the annulment by the Court of the fine imposed on the applicant for the first period would be liable, depending on the basis of that annulment, to affect the treatment given by the Court to the fine imposed on Viscas in respect of the second period. Moreover, the reduction by the Court of the applicant’s fine for the first period might be capable of influencing Viscas’ heads of claim seeking a reduction of the fine which was imposed on it, within the context of its own action. That could be the case, in particular, if the Court were to uphold, in order to carry out a reduction of the applicant’s fine, its complaint that the Commission incorrectly took into account insufficient sale values for the calculation of that fine, since Viscas raises a similar complaint in its own action.
23      Lastly, contrary to what the Commission essentially submits, the fact that Viscas itself has an independent right of action against the contested decision and has in fact brought such an action is irrelevant for the purposes of determining whether it has established an interest in intervening in the present case (see, to that effect, order in Fresh Del Monte Produce v Commission, EU:T:2010:42, paragraph 15 above, paragraph 31 and the case-law cited).
24      In the light of the foregoing considerations, it must be held that the interest in intervening in the present case on which Viscas relies must be classified as a direct, existing interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute, in so far as Viscas limits its intervention to supporting the applicant’s claims seeking, in essence, the annulment of the decision in so far as that decision concerns the applicant’s direct participation in the infringement or the reduction of the fine which was imposed on it by virtue of that direct participation. Consequently, the application to intervene must be allowed (see, to that effect, order in Fresh Del Monte Produce v Commission, EU:T:2010:42, paragraph 15 above, paragraph 32).
25      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 28 September 2014, the application to intervene was submitted within the period prescribed in Article 115(1) of the Rules of Procedure and the intervener’s rights will be those provided for in Article 116(2) to (4) of those rules.
26      However, the applicant has requested, in accordance with Article 116(2) of the Rules of Procedure, that certain confidential material in the application and the annexes thereto, and also in the defence, be omitted from the communication to the intervener and, for the purposes of that communication, it has produced non-confidential versions of the documents concerned.
27      At the present stage, the communication to the intervener of the pleadings served and, if necessary, to be served on the parties must therefore be limited to a non-confidential version. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted on that issue.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Viscas Corporation is granted leave to intervene in Case T‑444/14 in support of the form of order sought by the applicant.
2.      The Registrar shall send to the intervener a non-confidential version of all pleadings served on the parties.
3.      A period shall be prescribed within which the intervener may submit any observations that it may have on the request for confidential treatment. The decision on the merits of that request is reserved.
4.      A period shall be prescribed within which the intervener may submit a statement in intervention, without prejudice to the possibility of supplementing it later if necessary, further to a decision on the merits of the request for confidential treatment.
5.      The costs are reserved.
Luxembourg, 25 June 2015.
E. Coulon
D. Gratsias
Registrar
President
* Language of the case: English.