Order of the Court of First Instance (First Chamber) of 12 January 1993. - Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid and others v Commission of the European Communities. - Case T-29/92.



European Court reports 1993 Page II-00001



Summary

Parties

Grounds

Operative part



Keywords

++++

Procedure ° Intervention ° Persons with an interest ° Case concerning the validity of a decision applying competition rules ° Undertaking which is a party to proceedings before the national court, the result of which is dependent on the result of proceedings before the Community judicature ° Striking out of the action before the national court ° Consequences dependent on the terms and effects of the striking out

(Statute of the Court of Justice of the EEC, Art. 37, second paragraph)

Summary

An undertaking which, although not a complainant in a procedure conducted by the Commission, is a party to proceedings pending before the national court, the result of which depends on the decision to be given by the Court of First Instance on conclusion of the proceedings to which an application to intervene relates, has a right to intervene, in accordance with Article 37 of the Statute of the Court, in proceedings before the Court of First Instance brought against the Commission by one of the addressees of a Commission decision applying competition rules. The interest which that undertaking has in the result of the case pending before the Court of First Instance is not affected by the striking out of the case before the national court where it is struck out at the request of the opposite party and the person seeking leave to intervene is still liable to be summoned before the national court in proceedings having the same subject-matter as the case which was struck out.

Parties

In Case T-29/92,

Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid, whose registered office is in Amersfoort, Netherlands,

Amsterdamse Aannemers Vereniging, whose registered office is in Amsterdam, Netherlands,

Algemene Aannemersvereniging voor Waterbouwkundige Werken, whose registered office is in Utrecht, Netherlands,

Aannemersvereniging van Boorondernemers en Buizenleggers, whose registered office is in Soest, Netherlands,

Aannemersvereniging Velsen, Beverwijk en Omstreken, whose registered office is in Velsen, Netherlands,

Aannemers Vereniging Haarlem-Bollenstreek, whose registered office is in Heemstede, Netherlands,

Aannemersvereniging Veluwe en Zuidelijke IJsselmeerpolders, whose registered office is in Apeldoorn, Netherlands,

Combinatie van Aannemers in het Noorden, whose registered office is in Leeuwarden, Netherlands,

Vereniging Centrale Prijsregeling Kabelwerken, whose registered office is in Leeuwarden, Netherlands,

Delftse Aannemers Vereniging, whose registered office is in Rotterdam, Netherlands,

Economisch Nationaal Verbond van Aannemers van Sloopwerken, whose registered office is in Utrecht, Netherlands,

Aannemersvereniging "Gouda en Omstreken", whose registered office is in Rotterdam, Netherlands,

Gelderse Aannemers Vereniging inzake Aanbestedingen, whose registered office is in Arnhem, Netherlands,

Gooise Aannemers Vereniging, whose registered office is in Huizen, Netherlands,

' s-Gravenhaagse Aannemers Vereniging, whose registered office is in The Hague, Netherlands,

Leidse Aannemersvereniging, whose registered office is in Leiden, Netherlands,

Vereniging Markeer Aannemers Combinatie, whose registered office is in Tilburg, Netherlands,

Nederlandse Aannemers- en Patroonsbond voor de Bouwbedrijven, whose registered office is in Dordrecht, Netherlands,

Noordhollandse Aannemers Vereniging voor Waterbouwkundige Werken, whose registered office is in Amsterdam, Netherlands,

Oostnederlandse-Vereniging-Aanbestedings-Regeling, whose registered office is in Delden, Netherlands,

Provinciale Vereniging van Bouwbedrijven in Groningen en Drenthe, whose registered office is in Groningen, Netherlands,

Rotterdamse Aannemersvereniging, whose registered office is in Rotterdam, Netherlands,

Aannemersvereniging "de Rijnstreek", whose registered office is in Rotterdam, Netherlands,

Stichting Aanbestedingsregeling van de Samenwerkende Bouwbedrijven in Friesland, whose registered office is in Leeuwarden, Netherlands,

Samenwerkende Prijsregelend Vereniging Nijmegen en Omstreken, whose registered office is in Nijmegen, Netherlands,

Samenwerkende Patroons Verenigingen in de Boouwbedrijven Noor-Holland-Noord, whose registered office is in Alkmaar, Netherlands,

Utrechtse Aannemers Vereniging, whose registered office is in Utrecht, Netherlands,

Vereniging Wegenbouw Aannemers Combinatie Nederland, whose registered office is in Zeist, Netherlands, and

Zuid Nederlandse Aannemers Vereniging, whose registered office is in Heeze, Netherlands,

represented by L.H. van Lennep, of the Hague Bar, and E.H. Pijnacker Hordijk, of the Amsterdam Bar, with an address for service in Luxembourg at the Chambers of L. Frieden, 6, Avenue Guillaume,

applicants,

v

Commission of the European Communities, represented by B. J. Drijber, a member of the Commission' s Legal Service, acting as Agent, assisted by P. Glazener, of the Rotterdam Bar, with an address for service in Luxembourg at the office of R. Hayder, a representative of the Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of the Commission decision of 5 February 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.572 and IV/32.571 - Building and Construction Industry in the Netherlands, OJ 1992 L 92, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES,

composed of: H. Kirschner, President, C. Bellamy, R. Schintgen, B. Vesterdorf and K. Lenaerts, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

1 By application lodged at the Court of First Instance on 27 August 1992, Dennendael BV, a company governed by Netherlands law, whose registered office is in Rotterdam, represented by I. G. S. Cath, of the Hague Bar, with an address for service in Luxembourg at the Chambers of L. H. Dupong, 14a, Rue des Bains, sought leave to intervene in Case T-29/92 in support of the submissions of the defendant.

2 The application to intervene was made pursuant to Article 115 of the Rules of Procedure and submitted in accordance with the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice of the EEC ("the Statute"), which is applicable to proceedings before the Court of First Instance by virtue of the first paragraph of Article 46 of the Statute.

3 The application to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure. The parties submitted their observations.

4 Pursuant to the third subparagraph of Article 116(1) of the Rules of Procedure, the President of the First Chamber referred the application to that Chamber.

Arguments of the parties

5 In support of its application, Dennendael claims that it has an interest in the result of the case within the meaning of Article 37 of the Statute.

6 Dennendael states that its interest lies, first, in the fact that it has been served with a third-party notice in proceedings commenced before the national court by Prijsregeling Midden Nederland BV ("PMN"), one of the offices of SPO, the first applicant in Case T-29/92, against certain contractors which are members of that organization in which it seeks from them compensation in respect of calculation costs and payment of administrative costs, professional membership fees and collection expenses due under the rules to which the contested decision relates. If the Court confirms the contested decision, the illegality of the claims in relation to which it has been called on to provide an indemnity will be evident and the national court will be obliged to find in its favour.

7 Dennendael states that its interest in intervening in the present proceedings is also connected with its more general interest in seeing that the rules referred to in the contested decision, which are contrary to Article 85, are declared unlawful and that they remain unlawful and null and void, so that, as contract awarder, it will no longer be limited, contrary to Community law, in its freedom to choose and negotiate with contractors and so that in the future it will not have to pay the compensation provided for by the rules at issue.

8 Dennendael goes on to state that, although it did not lodge a complaint with the Commission against the anti-competitive practices found to exist by the contested decision, its reason for not doing this was that it was called on to fulfil its obligations of indemnity at virtually the same time as the Commission adopted its decision.

9 In its observations, which were lodged at the Registry of the Court of First Instance on 8 September 1992, the Commission states that, in view of the circumstances mentioned by Dennendael, there is hardly any doubt about its interest in the result of the case pending before the Court of First Instance. In the case pending before the national court, the SPO office is seeking from the contractors to whom contracts for works were awarded by Dennendael the payments due, under the contested rules, to the contractors which submitted tenders but were unsuccessful, even though in the present case the unsuccessful contractor had waived its right thereto. Since Dennendael has guaranteed payment of such compensation amounts, they are being claimed from it before the national court. According to the Commission, since the separate debt claimed by the SPO office is directly based on the rules declared unlawful by the contested decision, the result of the proceedings before the national court will depend on the outcome of the present proceedings before the Court of First Instance. For that reason, the Commission considers that the position of Dennendael is different from that of any other contract awarder.

10 In their observations lodged at the Registry of the Court of First Instance on 11 September 1992, the applicants in the main proceedings raised objections to the application to intervene.

11 On the one hand, the applicants in the main proceedings contend that they are unaware of the exact significance of the national proceedings referred to by Dennendael since, they say, none of them is a party to them. They add that the application to intervene likewise does not make clear the precise legal basis for the indemnity claim in those proceedings.

12 They add that the view put forward by Dennendael, namely that as contract awarder it would ultimately become liable for the compensation payments, is incorrect since, if Dennendael is under an obligation of any kind, it stems solely from the fact that, apparently, it freely undertook to indemnify contractors against claims for compensation.

13 The applicants in the main proceedings also state that the proceedings pending before the national court will be struck out for reasons which, they maintain, have nothing to do with Dennendael' s application to intervene. Consequently, they consider that Dennendael cannot rely on those proceedings before the national court in order to demonstrate its interest in the result of the case pending before the Court of First Instance.

14 They also consider that Dennendael cannot rely on the case-law of the Court of Justice concerning the admissibility of actions brought by "interested third parties" against decisions that are not addressed to them.

15 The applicants in the main proceedings contend that the application to intervene should be dismissed because of the lack of any direct and specific interest, whether similar or different (see the order of the Court of 25 November 1964 in Case 111/63 Lemmerze-Werke v High Authority [1965] ECR 716). Intervention on that basis could only complicate the conduct of the procedure unduly.

The Court' s assessment

16 The Court observes, at the outset, that, according to the second paragraph of Article 37 of the Statute, the right to intervene is open to any person "establishing an interest in the result of any case submitted to the Court".

17 The Court finds that the present application to intervene raises two questions: the first is whether the fact that a person is a party to proceedings pending before the national court, the result of which depends on the outcome of the proceedings in which that person wishes to intervene, gives him a sufficient interest to justify his intervention. The second question, which arises only if the first question is answered in the affirmative, is whether the striking out of the case pending before the national court at the request of one of the parties to the present proceedings which oppose the application to intervene, following the submission of that application, deprives the person wishing to intervene of its interest in the result of the case, even though it continues to be bound by a guarantee under which it may be liable for compensation whose legality depends on the result of the case.

18 It is apparent from the documents before the Court that Dennendael is awarding a contract for a building project known as "Scheepjeshof", in respect of which it has awarded contracts to a value of around HFL 17.5 million. It appears that, before awarding contracts for that project, Dennendael entered into negotiations with a first contractor (Nijhuis BV). In the course of those negotiations, on 16 August 1988 that contractor waived the right to claim from Dennendael any compensation in the event of its not being awarded a contract for the project, thereby issuing a waiver within the meaning of Article 6 of the Code of Honour (see annexes 6 and 7 to the application to intervene). On 3 October 1988, Dennendael informed that contractor that it was terminating negotiations with it. The next day, the contractor informed Dennendael that it regretted that outcome. Dennendael then negotiated the award of the contract with two contractors (Delfse Aannemings Maatschappij BV and Pepping Bouw BV), which had formed a joint venture for the purposes of the project under the name Bouwcombinatie Scheepjeshof Veenendaal. In the course of the negotiations, on 5 December 1988 the contractors waived the right to any compensation. The project was awarded to those contractors. By letter of 31 August 1989, PMN, the appropriate office of SPO, the applicant in the main proceedings in the present case, claimed from those contractors, on the basis of the rules declared unlawful by the contested decision, the compensation which the latter, on 5 December 1988, had waived the right to claim from Dennendael. On 16 October 1988, PMN instituted proceedings against those contractors before the competent Netherlands court to obtain payment of that compensation. On 4 July 1991, the three defendant contractors in their turn commenced proceedings against Dennendael to enforce the latter' s indemnity covering the payment of that compensation and requested that the court join the two cases. In submissions of 14 January 1992, Dennendael resisted the claim for indemnity, contending in particular that the provisions on the basis of which the compensation was sought were incompatible with Article 85 of the EEC Treaty.

19 On 27 August 1992, Dennendael submitted its application to the Court of First Instance. On 9 September 1992, PMN informed the lawyers acting for the contractors defending the proceedings before the Netherlands court that "its client wished to have the case struck out for reasons of concern to it".

20 It is apparent from the foregoing, as far as the first question is concerned, that when Dennendael submitted its application, its interest in the result of the case lay in the fact that the result of the case to which it was a party before the national court depended on the legality of the Commission decision at issue in the main proceedings.

21 As regards the second question, namely whether, following the striking out, on 9 September 1992, of the cases pending before the national court, Dennendael retains an interest in the result of the present case, it must be observed that the cases were struck out at the request of one of the offices of the applicants in the main proceedings, after the application to intervene was submitted, only one day before the expiry of the period within which applications to intervene may be submitted by interveners established in the Kingdom of the Netherlands or the Federal Republic of Germany (10 September 1992) and after the expiry of that period for interveners established in the Kingdom of Belgium or the Grand Duchy of Luxembourg (6 September 1992).

22 The applicants in the main proceedings are wrong to contend that, following the striking out of the cases, Dennendael' s interest is no different from that of the hundreds of other consumers who are victims of the practices objected to in the contested decision. Dennendael is distinguished from other consumers by the fact that, before the adoption of the contested decision, it took steps to safeguard its rights, by obtaining from the contractors which it had approached a waiver of the right to claim from it the compensation at issue. By so doing, unlike other consumers, it refused to have the burden of that compensation passed on to it through the prices tendered. Moreover, its interest in the result of the case differs from that of other consumers by reason of the guarantee provided by it to the contractors to which it awarded the contract for its project. The effect of that guarantee is that Dennendael is at present under threat of being brought once again before the national court in proceedings having the same subject-matter as the case which was struck out.

23 Consequently, Dennendael still retains an interest in being able to plead the nullity of its guarantee on the ground that the basis of the guaranteed debt is incompatible with Article 85(1) of the EEC Treaty.

24 It follows from all the foregoing that Dennendael has an interest in the result of the main proceedings and must be granted leave to intervene in Case T-29/92 in support of the submissions of the defendant.

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE

hereby orders:

1. Dennendael BV is granted leave to intervene in Case T-29/92, in support of the submissions of the defendant.

2. A time-limit shall be set for the intervener to submit in writing its pleas in law in support of the forms of order sought by it.

3. A copy of all the pleadings will be sent to the intervener by direction of the Registrar.

4. The costs are reserved.

Luxembourg, 12 January 1993.