ORDER OF THE GENERAL COURT
(Third Chamber)
27 November 2013 (*)
(Intervention – Interest in the result of the case)
In Case T‑462/12,
Pilkington Group Ltd, established in St. Helens (United Kingdom), represented by J. Scott, S. Wisking and K. Fountoukakos-Kyriakakos, Solicitors,
applicant,
v
European Commission, represented by M. Kellerbauer, P.J.O. Van Nuffel and G. Meessen, acting as Agents,
defendant,
APPLICATION for annulment of European Commission Decision C(2012) 5718 final of 6 August 2012 on the rejection of a request for confidential treatment submitted by Pilkington Group Ltd pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case COMP/39.125 – Carglass),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood and E. Bieliūnas, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1        On 12 November 2008, the European Commission adopted Decision C(2008) 6815 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.125 – Carglass) (‘the Carglass Decision’). The applicant, Pilkington Group Ltd, is included among the addressees of the Carglass Decision. By that decision, the Commission found inter alia that the applicant participated in an infringement of the abovementioned competition rules, and imposed a fine on it jointly and severally with other companies belonging to the same undertaking.
2        On 25 March 2009, the Commission’s Directorate-General for Competition notified the applicant, among others, of its intention to publish a non-confidential version of the Carglass Decision on its website. At the same time, the Commission asked the applicant to identify in the text of the decision any business secrets concerning it or other information which, if disclosed, could cause it serious harm.
3        The applicant responded to that request in letters of 29 April, 25 September and 16 October 2009. In so doing, the applicant highlighted a range of information contained in the complete version of the Carglass Decision which it considered to be business secrets or other confidential information, in that its disclosure would cause it significant harm or would undermine the privacy of individuals.
4        A provisional non-confidential version of the Carglass Decision was published on the website of the Directorate-General for Competition on 11 February 2010, largely taking into account the applicant’s requests for confidential treatment.
5        By letters of 28 April 2011, 6 June 2011 and 1 February 2012, the Commission informed the applicant that, in view of several requests for access to information contained in the Carglass Decision, it intended to publish a more detailed version of that decision. Consequently, the Commission refused a number of requests by the applicant for confidential treatment concerning the facts constituting the infringement, in particular the names of customers, the names and description of products and other information which, it was alleged, made it possible to identify customers of the applicant who were affected by the cartel. It also refused a number of requests for confidential treatment concerning, among other things, the number of parts supplied by the applicant, the market share of a specific car manufacturer, pricing calculations and price changes, on the ground, inter alia, that that information could not be regarded as sensitive confidential business information, as it had been exchanged with the other participants in the infringement and it was more than five years old. Finally, the Commission refused various requests for confidential treatment concerning information which, according to the applicant, made it possible to identify members of its staff, on the ground that the identity of those people was sufficiently protected.
6        The applicant repeated these various requests for confidentiality to the hearing officer. By decision of 6 August 2012 (‘the contested decision’), the hearing officer accepted some of those requests but rejected the majority of them.
7        By document lodged at the Court Registry on 19 October 2012, the applicant brought an action for annulment of the contested decision in so far as it rejected a number of its requests for confidentiality. By separate document lodged at the Registry on the same day, the applicant applied to the President of the General Court for suspension of the operation of the contested decision.
8        By order of 11 March 2013, the President of the General Court decided, first, to suspend the operation of the contested decision in relation to two categories of information referred to in paragraph 6 of that decision, and, secondly, to order the Commission to refrain from publishing a version of the Carglass Decision which, as regards both those categories of information, would be more complete than the one published on its website since 11 February 2010.
9        By documents lodged at the Registry on 17 January 2013, Württembergische Gemeinde-Versicherung a.G. (‘WGV’), VHV Allgemeine Versicherung AG (‘VHV’) and LVM Landwirtschaftlicher Versicherungsverein Münster a.G. (‘LVM’), all three of which operate in the field of car glass insurance, applied for leave to intervene in the present case in support of the form of order sought by the Commission. By document lodged at the Registry on 22 January 2013, HUK-Coburg Haftpflicht-Unterstützungs-Kasse Kraftfahrender Beamter Deutschlands a.G. in Coburg (‘HUK-Coburg’), which likewise operates in the field of car glass insurance, also applied for leave to intervene in the present case in support of the form of order sought by the Commission.
10      The applications for leave to intervene were served on the parties in accordance with Article 116(1) of the Rules of Procedure of the General Court.
11      The Commission and the applicant submitted their written observations on those applications for leave to intervene by documents lodged at the Registry on 6 and 19 February 2013 respectively.
12      By documents lodged at the Registry on 19 February 2013 and 22 March 2013, the applicant made a request for confidential treatment, vis-à-vis WGV, VHV, LVM and HUK-Coburg, of information contained in the application and its annexes, and in the reply, in the event that one or more of those companies should be granted leave to intervene in the present action.
13      Following a change in the composition of the Chambers of the Court at the beginning of the new judicial year, the Judge-Rapporteur was assigned to the Third Chamber, and this case was therefore also assigned to it.
Law
14      WGV, VHV, LVM and HUK-Coburg put forward a similar line of argument in order to establish a direct and existing interest in the result of the case.
15      They state, first of all, that they have brought actions for damages before the Landgericht Düsseldorf (Regional Court, Düsseldorf) against ‘AGC Glass Europe and Others’ (‘AGC’), one of the undertakings which participated in the cartel at issue in the Carglass Decision. Those actions, based on an infringement of European Union law relating to cartels between 1998 and 2003 which was penalised in the Carglass Decision, seek compensation for the damage caused by AGC to those insurance companies due to the fact that the latter became involved in a large number of cases for the purpose of replacing car glass that was no longer usable. They also submit that it must be borne in mind that publication of a more detailed non-confidential version of the Carglass Decision by the Commission is likely to improve their understanding of the cartel which was the subject of that decision and, in that way, make it easier to demonstrate the loss suffered to the Landgericht Düsseldorf.
16      WGV, VHV, LVM and HUK-Coburg then state that access to more complete information about the cartel that gave rise to the adoption of the Carglass Decision is made more difficult by the Commission’s rejection of their requests for access to certain documents from the administrative file relating to the Carglass Decision, which were made on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
17      The Commission is not opposed to WGV, VHV, LVM and HUK-Coburg being granted leave to intervene in the present action.
18      The applicant, on the other hand, considers that those applicants for leave to intervene have not shown that they have a direct and existing interest in the result of the case.
19      Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of the statute, any person establishing an interest in the result of a case other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union is entitled to intervene in that case.
20      Moreover, it is settled case-law that the concept of an interest in the result of a case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice 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 (order of the President of the Court of 6 April 2006 in Case C‑130/06 P(I) An Post v Deutsche Post and Others, paragraph 8, and order of the President of the Court of 17 October 2011 in Case C‑3/11 P(I) Gesamtverband der deutschen Textil- und Modeindustrie and Others v Council and Others, paragraph 10). In that regard, it should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see, to that effect, the order of the President of the Court of 25 January 2008 in Case C‑461/07 P(I) Provincia di Ascoli Piceno and Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, paragraph 5).
21      In this case, the Court first of all rejects the applicant’s argument that the absence of an interest in the result of the case on the part of the applicants for leave to intervene, which all operate in the car glass insurance sector, is apparent from the fact that the Carglass Decision concerns only car glass supplied to original equipment manufacturers for first assembly, and not car glass for replacement. That argument is based on a misreading of that decision, since it is clear from the version published on the website of the Directorate-General for Competition, more particularly paragraphs 10 to 12, that the decision concerns not only car glass supplied to manufacturers for first assembly in vehicles, but also car glass supplied to them for further resale to their authorised repairers as spare parts.
22      Next, as regards the argument of the applicants for leave to intervene that their direct and existing interest in the result of the case is apparent from the fact that they have brought an action for damages before the Landgericht Düsseldorf against one of the undertakings which participated in the cartel that was the subject of the Carglass Decision, it must be stated that it has been held, in relation to an application for leave to intervene made by an undertaking claiming that it was affected by the anti-competitive conduct at issue in the case concerned, that to recognise that each natural or legal person who could potentially bring a civil action seeking damages for loss resulting from the anti-competitive conduct of an undertaking has a direct and existing interest in the result of a case would lead to the category of potential interveners being so wide that there would be a risk of seriously undermining the effectiveness of the procedure before the Courts of the European Union (see, inter alia, orders of the President of the Court of 8 June 2012 in Case C‑589/11 P(I) Schenker AG v Air France SA and Commission, paragraph 24; in Case C‑590/11 P(I) Schenker AG v Air France-KLM and Commission, paragraph 24; and in Case C‑596/11 P(I) Schenker AG v Koninklijke Luchtvaart Maatschappij NV and Commission, paragraph 24; see also, by analogy, the order of the President of the Court of 19 February 2013 in Case C‑365/12 P Commission v EnBW Energie-Baden-Württemberg, paragraph 11).
23      That case-law also applies to the present applications for leave to intervene. The fact that the applicants for leave to intervene have actually brought an action for damages against an undertaking which participated in the cartel in question does not have the effect of substantially distinguishing their situation from that of the applicants for leave to intervene contemplated by that case-law who could potentially bring such an action, and accordingly that fact cannot establish a direct and existing interest in the result of the case.
24      The fact that the applicants for leave to intervene submitted requests to the Commission for access to certain documents from the administrative file relating to the Carglass Decision, on the basis of Regulation No 1049/2001, and that those requests were rejected by the Commission is not such as to establish that the applicants for leave to intervene have a vested and existing interest in the result of the case. Those requests are not capable of distinguishing WGV, VHV, LVM and HUK-Coburg from any other person interested in gaining access to the documents from the procedure giving rise to the adoption of that decision, as any person may make this type of request for access to the documents of the European Union institutions at any time (see inter alia, to that effect, Schenker AG v Air France SA and Commission, cited in paragraph 22 above, paragraph 25; Schenker AG v Air France-KLM and Commission, cited in paragraph 22 above, paragraph 25; and Schenker AG v Koninklijke Luchtvaart Maatschappij NV and Commission, cited in paragraph 22 above, paragraph 25). Moreover, any person who is the addressee of a decision founded on that regulation refusing access to documents may seek annulment of that decision before the Courts of the European Union.
25      As WGW, VHV, LVM and HUK-Coburg have failed to establish that they have a direct and existing interest in the result of the case, their applications for leave to intervene must therefore be dismissed.
Costs
26      Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings as far as WGW, VHV, LVM and HUK-Coburg are concerned, a decision should be made on the costs relating to their applications for leave to intervene.
27      Under Article 87(2) 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. In this instance, as there has been no application for costs against WGV, VHV, LVM and HUK-Coburg, it is appropriate, first, to order them to bear their own costs and, secondly, to order the Commission and the applicant to bear their own costs occasioned by the applications of WGV, VHV, LVM and HUK-Coburg for leave to intervene.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      The applications for leave to intervene of Württembergische Gemeinde-Versicherung a.G., VHV Allgemeine Versicherung AG, LVM Landwirtschaftlicher Versicherungsverein Münster a.G. and HUK-Coburg Haftpflicht-Unterstützungs-Kasse Kraftfahrender Beamter Deutschlands a.G. in Coburg are dismissed.
2.      Württembergische Gemeinde-Versicherung a.G., VHV Allgemeine Versicherung AG, LVM Landwirtschaftlicher Versicherungsverein Münster a.G. and HUK-Coburg Haftplflicht-Unterstützungs-Kasse Kraftfahrender Beamter Deutschlands a.G. in Coburg shall bear their own costs.
3.      The European Commission and Pilkington Group Ltd shall each bear their own costs relating to the intervention proceedings.
Luxembourg, 27 November 2013.
E. Coulon
S. Papasavvas
Registrar
President
* Language of the case: English.