ORDER OF THE GENERAL COURT (Fourth Chamber)
6 June 2023 (*)
(State aid – Postal sector – Capital contribution from PostNord Group to Post Danmark – Commission’s decision to regard the capital contribution as not constituting aid – Action for annulment – Intervention – Representative association the purpose of which is to defend the interests of its members – No interest in the outcome of the case)
In Case T‑334/22,
Danske Fragtmænd A/S, established in Åbyhøj (Denmark), represented by L. Sandberg-Mørch, lawyer,
applicant,
v
European Commission, represented by J. Carpi Badía and L. Nicolae, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented by C. Maertens, acting as Agent, and by R. Holdgaard, lawyer,
and by
Kingdom of Sweden, represented by O. Simonsson, C. Meyer-Seitz, A. Runeskjöld, F. Göransson, M. Salborn Hodgson, H. Shev, H. Eklinder and R. Shahsavan Eriksson, acting as Agents,
interveners,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and T. Pynnä, Judges,
Registrar: V. Di Bucci
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, Danske Fragtmænd A/S, seeks annulment of Decision (EU) 2022/459 of the European Commission of 10 September 2021 on State aid SA.49668 (2019/C) (ex 2017/FC) and SA.53403 (2019/C) (ex 2017/FC) implemented by Denmark and Sweden for PostNord AB and Post Danmark A/S (OJ 2022 L 93, p. 146; ‘the contested decision’).
Facts and procedure
2        Post Danmark A/S is the company responsible for the universal postal service in Denmark. It is owned by PostNord Group AB, a subsidiary of PostNord AB, which is itself co-owned by the Danish and Swedish States.
3        In the contested decision, the Commission ruled in favour of Post Danmark on several measures envisaged in an agreement concluded by the Kingdom of Denmark and the Kingdom of Sweden in October 2017. In particular, as regards a capital contribution from PostNord Group to Post Danmark, amounting to approximately 2.34 billion Danish kroner (DKK) (approximately EUR 314 million), the Commission found that a private investor in the position of PostNord Group would have made such a capital contribution, so that such a measure did not entail the existence of an economic advantage, within the meaning of Article 107(1) TFEU, in favour of Post Danmark.
4        Thus, in Article 3 of the contested decision, the Commission concluded that PostNord Group’s capital contribution to Post Danmark did not constitute State aid. The applicant, which presents itself as a competitor of Post Danmark, seeks the annulment of the contested decision in that regard.
5        On 29 August 2022, in accordance with Article 79 of the Rules of Procedure of the General Court, a notice of the lodging of the present action on 1 June 2022 was published in the Official Journal of the European Union (OJ 2022 C 326, p. 19).
6        By document lodged at the Court Registry on 10 October 2022, Danske Medier, an association governed by Danish law, sought leave to intervene in the present proceedings in support of the form of order sought by the applicant.
7        By document lodged at the Court Registry on 15 December 2022, the Commission opposed Danske Medier’s application to intervene and requested that Danske Medier be ordered to pay the costs incurred by it in relation to that application.
8        By document lodged at the Court Registry on 22 December 2022, the applicant stated that it had no objection to Danske Medier’s application to intervene.
9        On 19 January 2023, in accordance with Article 144(5) and Article 19(2) of the Rules of Procedure, the President of the Fourth Chamber referred the decision on the application to intervene to the Chamber.
Law
10      Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, any person which can establish an interest in the result of a case submitted to the General Court, to the exclusion of cases between Member States, between EU institutions or between Member States, on the one hand, and institutions of the European Union, on the other hand, may intervene in that case.
11      In that regard, it is appropriate, in particular, to ascertain that the applicant for leave to intervene is directly affected by the contested measure and that its interest in the result of the case is certain. In principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is such as to change the legal position of the applicant for leave to intervene (see order of the President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7 and the case-law cited).
12      As regards associations, the Courts of the European Union allow intervention by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (order of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66, and orders of 17 February 2016, Allergopharma v Commission, T‑354/15, not published, EU:T:2016:121, paragraph 9, and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12). More specifically, an association of undertakings may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders of 28 May 2004, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2004:164, paragraph 21; of 17 February 2016, Allergopharma v Commission, T‑354/15, not published, EU:T:2016:121, paragraph 9; and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).
13      Furthermore, under Article 143(2)(f) of the Rules of Procedure, an application to intervene must contain a statement of the circumstances establishing the right to intervene, where the application is made under the second or third paragraph of Article 40 of the Statute of the Court of Justice of the European Union. In that regard, it follows from the case-law that it is, in principle, for the person alleging facts in support of a claim to adduce proof of such facts and nothing in the actual wording of Article 143(2)(f) of the Rules of Procedure suggests that an application to intervene under the second and third paragraphs of Article 40 of the Statute of the Court of Justice of the European Union is subject to a reduced burden of proof with regard to that principle (see, to that effect, order of the Vice-President of the Court of Justice of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), not published, EU:C:2016:476, paragraphs 19 and 20).
14      It is therefore for the applicant for leave to intervene to prove that the interest in the result of the case on which it relies exists.
15      In the present case, in order to demonstrate that it has a direct and existing interest in the result of the case, Danske Medier states that it is a trade association representing approximately 300 members, of which ‘at least ten’ are significant undertakings which distribute newspapers, magazines and small parcels in Denmark and which, therefore, compete with Post Danmark, the beneficiary of the alleged aid. According to Danske Medier, the alleged aid enables Post Danmark to distort competition by undercutting the market price, which leads to a loss of market share for its members or it not being possible to increase that share.
16      In the annex to the application for leave to intervene, Danske Medier produces, in addition to the authority to act which it gave to its lawyer, an extract from the Danish commercial register.
17      It is true that that extract from the commercial register makes it possible to establish that Danske Medier is indeed an active association, duly registered in Denmark and which has legal personality.
18      However, that document does not contain any information as regards Danske Medier’s object and its composition. Thus, it must be held that, as the Commission rightly points out, Danske Medier did not produce before the Court its articles of association, the list of its members or any other document showing the extent of its representation on the date on which it lodged its application to intervene in the present case.
19      In that regard, the reproduction of the names of 12 undertakings which are said to be significant and active in the distribution sector for newspapers and small parcels, cited without further specification in the body of the application for leave to intervene, cannot be regarded as sufficient.
20      It is therefore not possible for the Court to ascertain the exact composition of Danske Medier, whether it is representative and whether its object is indeed to protect the interests of its members within the meaning of the case-law referred to in paragraph 12 above (see, by analogy, order of 20 October 2020, Deutsche Telekom v Commission, T‑64/20, not published, EU:T:2020:524, paragraph 32 and the case-law cited).
21      In the light of the foregoing, it must be held that Danske Medier has not adduced any evidence to support its claims that it represents a significant number of undertakings competing with Post Danmark.
22      It follows that 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 of the European Union, has not been established.
Costs
23      Under Article 144(6) of the Rules of Procedure, where an application to intervene is refused, a decision as to the costs relating to that application is to be given, including the costs of the applicant for leave to intervene, pursuant to Articles 134, 135 and 138 of those rules.
24      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Danske Medier has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission relating to the application to intervene, in accordance with the form of order sought by the Commission.
25      In the absence of any form of order sought by the applicant as regards the costs relating to the present application to intervene, that party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      Danske Medier’s application to intervene is dismissed.
2.      Danske Medier shall bear its own costs and pay those incurred by the European Commission relating to its application to intervene.
3.      Danske Fragtmænd A/S shall bear its own costs relating to Danske Medier’s application to intervene.
Luxembourg, 6 June 2023.
V. Di Bucci
R. da Silva Passos
Registrar
President
*      Language of the case: English.