ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
25 June 2015 (*)
(Intervention — Confidentiality)
In Case T‑422/14,
Viscas Corporation, established in Tokyo (Japan), represented by J.-F. Bellis, lawyer,
applicant,
v
European Commission, represented by H. van Vliet, C. Giolito and L. Parpala, acting as Agents, and by B. Doherty, 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, Viscas Corporation, and the companies Furukawa Electric Co. Ltd (‘Furukawa’) and Fujikura Ltd (‘Fujikura’), 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 a joint and several basis, a fine of EUR 34 992 000 on the applicant, Furukawa and Fujikura (Article 2(p) of the contested decision). In addition, the Commission ordered the undertakings referred to in Article 1 of the contested decision, including the applicant, Furukawa and Fujikura, 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 Furukawa and Fujikura (Article 4 of the contested decision).
3        It is apparent from the grounds of the contested decision that the Commission found that the applicant had participated directly in the abovementioned cartel 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 Furukawa and Fujikura had to be held liable for the anti-competitive conduct of the applicant, 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 11 June 2014, the applicant brought an action in which it requests the Court to annul the contested decision in so far as that decision finds the existence of an infringement for the period between 1 October 2001 and 28 January 2009 and to annul or reduce the amount of the fine imposed.
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 27 October 2014, Furukawa sought leave to intervene in the present case in support of the form of order sought by the applicant.
7        By letter of 3 December 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 16 December 2014, the applicant requested the Court to grant the application to intervene.
9        By document lodged at the Court Registry on 22 December 2014, the Commission essentially requested the Court to reject the application to intervene.
10      By separate document lodged at the Court Registry on the same day, the Commission requested that, in accordance with Article 116(2) of the Rules of Procedure, certain documents and information contained in the defence and the annexes thereto be excluded from the file communicated to Furukawa, if its intervention were allowed. To that end, the Commission produced a non-confidential version of the documents concerned.
Law
Arguments of the parties
11      Furukawa submits that it has an interest in the result of the present case. It claims, in essence, that, in view of the fact that the Commission imposed on it a fine, jointly and severally with the applicant, the success of the form of order seeking the reduction of the applicant’s fine will necessarily have the effect of reducing the amount of that fine as far as Furukawa is concerned. Moreover, Furukawa takes the view that certain arguments raised by the applicant appear to be relevant to arguments which it has made in its application.
12      In its observations, the Commission merely submits that, since Furukawa has, moreover, already brought its own action, acceptance of its application to intervene does not favour the economy of procedure before the Court.
13      The applicant has not raised any objection to the application to intervene.
Assessment of the President
14      The application to intervene was submitted in accordance with Article 115 of the Rules of Procedure.
15      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.
16      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 its interest in the result of the case is established (order of 2 July 2010 in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, T‑384/09, EU:T:2010:276, paragraph 23).
17      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 SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, paragraph 16 above, EU:T:2010:276, paragraph 24 and the case-law cited).
18      It must also be observed that, in accordance with the case-law, in order to be able to impute the conduct of a subsidiary to a parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (see, to that effect, judgment of 25 October 1983 in AEG-Telefunken v Commission, 107/82, ECR, EU:C:1983:293, paragraph 50). In this respect, it is, as a rule, for the Commission to demonstrate such decisive influence on the basis of factual evidence.
19      In the present case, the Commission took the view that, during the period from 1 October 2001 to 28 January 2009, the date on which the infringement found by the contested decision ended, the applicant and Furukawa formed an economic unit for the purposes of the application of the competition rules, inasmuch as the applicant did not determine its conduct independently on the market. The contested decision notes that the applicant was a joint undertaking 50% owned by Furukawa and 50% owned by Fujikura and that there is evidence which confirms that those two companies indeed exercised decisive influence over the applicant’s commercial policy (recital 853 of the contested decision).
20      Within the context of the present action, as is apparent from paragraph 4 above, the applicant seeks, in essence, the annulment of the contested decision in so far as that decision concerns it and the annulment or, in the alternative, a reduction of the fine which was imposed on it.
21      It must be stated that, in the contested decision, the applicant, Furukawa and Fujikura were considered, for the purposes of the application of Article 101 TFEU, to form a single undertaking, and were held liable for a single infringement, which is linked to the applicant’s conduct on the market, and that Furukawa was held liable for the infringement between 1 October 2001 and 28 January 2009 only on the basis of the existence of an economic unit between it and the applicant. In addition, the applicant and Furukawa were made subject, jointly and severally with Fujikura, to the payment of a single fine for the period considered. Furukawa must for that reason be able to intervene in the present case in support of the form of order sought by the applicant (see, to that effect, order in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, EU:T:2010:276, paragraph 16 above, paragraph 28).
22      Furthermore, contrary to what the Commission submits in essence, the fact that Furukawa itself had an independent right of action against the contested decision and, indeed, 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 SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, EU:T:2010:276, paragraph 16 above, paragraph 29).
23      In the light of the foregoing considerations, it must be held that the interest in intervening in the present case on which Furukawa 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. Consequently, the application to intervene must be allowed (see, to that effect, order in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, EU:T:2010:276, paragraph 16 above, paragraph 30).
24      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 8 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.
25      However, the Commission has requested, in accordance with Article 116(2) of the Rules of Procedure, that certain confidential material in the defence and the annexes thereto 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.
26      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.      Furukawa Electric Co. Ltd is granted leave to intervene in Case T‑422/14 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.