ORDER OF THE PRESIDENT OF THE COURT

25 January 2008 ( )

(Appeal – Intervention – Interest in the result of the case)

In Case C‑464/07 P(I),

APPEAL under the first paragraph of Article 57 of the Statute of the Court of Justice, lodged on 4 October 2007,

Provincia di Ascoli Piceno,

Comune di Monte Urano,

represented by G. Celona, avvocato,

appellants,

the other parties to the proceedings being:

Apache Footwear Ltd, established in Pingsha (China),

Apache II Footwear Ltd (Qingxin), established in Taiping Zhen (China),

represented by O. Prost and S. Ballschmiede, avocats,

applicants at first instance,

Council of the European Union, represented by J.-P. Hix, acting as Agent, assisted by G. Berrisch, avocat, with an address for service in Luxembourg,

defendant at first instance,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Poiares Maduro,

makes the following

Order

1 By their appeal the Provincia di Ascoli Piceno and the Comune di Monte Urano seek to have set aside the order of the President of the Second Chamber of the Court of First Instance of the European Communities of 12 September 2007 in Case T‑1/07 Apache Footwear and Apache II Footwear v Council, not published in the ECR (‘the order under appeal’), dismissing their application to intervene in support of the form of order sought by the Council of the European Union in that case, concerning an application for annulment of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1). That order was notified to them on 14 September 2007.

2 By act lodged at the Registry of the Court on 12 November 2007 the Council declared that it did not wish to submit any observations on the present appeal. By act received at the Registry of the Court on 12 November 2007 Apache Footwear Ltd and Apache II Footwear Ltd (Qingxin) submitted their observations on the appeal.

3 Pursuant to the third paragraph of Article 57 of the Statute of the Court of Justice, the appeal is to be heard and determined under the procedure referred to in Article 39 of the Statute.

The appeal

4 By their appeal the appellants submit, essentially, that the order under appeal is based on a misinterpretation of the condition relating to the interest to which the second paragraph of Article 40 of the Statute of the Court of Justice makes subject the right to intervene of persons other than the Member States and the Community institutions. Under that provision, the right to intervene in a case submitted to the Court is open to the natural and legal persons referred to only if they establish an interest in the result of that case and in so far as the case does not fall within the exceptions laid down in that provision.

5 According to settled case‑law, the concept of ‘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, 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, not published in the ECR, paragraph 8). 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 in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 53).

6 It is apparent from paragraph 13 of the order under appeal that, in support of their application to intervene, the appellants merely claimed that they are public bodies with the objective of ensuring the welfare of their citizens, avoiding increases in the level of taxation and protecting them from unemployment and poverty.

7 Given the general nature of the factors thus invoked, the Court of First Instance was right, in the light of the case‑law referred to above, in finding in paragraph 13 of the order that those factors were not sufficient to establish the existence of a direct interest, on the part of the appellants, in the outcome of the case relating to the application made by Apache Footwear Ltd and Apache II Footwear Ltd (Qingxin) for the annulment of Regulation No 1472/2006.

8 The appellants claim, however, that, in the view of the Court of First Instance, as is apparent from paragraph 15 of the order under appeal, in order to establish the existence of such an interest in the circumstances of the present case, they would have had to demonstrate that the economic and social structure of the area administered by them is essentially dependent on the shoe manufacturing business, which is the subject-matter of that regulation. They submit that such is in fact the case and that the economic situation of a region is a fact of economic geography, which is known or is liable to be known to everyone and which thus does not need to be proven. In any event, the appellants produced before the Court of First Instance the ‘map of all the manufacturing districts in Italy’, which constitutes Annex 5 to the present appeal. Finally, they produce some new evidence concerning the importance of business in the shoe manufacturing sector in the light of the economic and social situation of the areas administered by them, and consisting of figures on the undertakings active in that sector which are established in those areas and the persons employed by those undertakings.

9 First, it should be pointed out, however, that it is normally for the person alleging facts in support of a claim to adduce proof of such facts (see, to that effect, Case C‑381/99 Brunnhofer [2001] ECR I‑4961, paragraph 52), and that, although that rule is derogated from when the allegation concerns facts which are well known, the finding that the facts concerned are well known or not is the task of the Court of First Instance and constitutes a finding of fact which, save where the facts or evidence are distorted, is not subject to review on appeal (see, to that effect, Case C‑273/05 P OHIM v Celltech [2007] ECR I‑2883, paragraphs 39 and 45 and the case‑law cited).

10 In finding that the appellants had not shown that the shoe manufacturing business is of essential importance to the economic and social structure of the areas administered by them, the Court of First Instance implicitly held that the economic situation of those regions does not constitute a well-known fact. That finding is not, as such, subject to appeal.

11 Second, under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only, to the exclusion of any appraisal of the facts. The Court of First Instance, or where appropriate the President thereof or the judge replacing him, thus has exclusive jurisdiction to assess the evidence. The assessment of that evidence thus does not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice, or where appropriate the President thereof, on appeal (see, to that effect, Case C‑416/04 P Sunrider v OHIM [2006] ECR I‑4237, paragraph 49).

12 Third, the new evidence submitted by the appellants in the context of the present appeal must be rejected. As has just been pointed out, pursuant to the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, appeals lie on points of law only, to the exclusion of any assessment of the facts, with the result that new evidence is inadmissible at the appeal stage (see, to that effect, inter alia, Case C‑396/93 P Henrichs v Commission [1995] ECR I‑2611, paragraph 14).

13 It must thus be considered that the plea is inadmissible in so far as it maintains that the appellants’ interest in the result of the case pending before the Court of First Instance results from a fact which is well known and that that fact is apparent from a document produced before the Court of First Instance, and also in so far as it is based on new evidence.

14 The appellants also claim that they constitute independent territorial bodies under Italian public law which are among the entities making up the Italian Republic, in the same way as the State, and which have discretionary powers in economic and social matters, deciding, in those areas, if and at what point they have to intervene. Consequently, without necessarily benefiting from the same treatment as a Member State, those entities should none the less be granted leave, by virtue of Article 40 of the Statute of the Court of Justice, to intervene in cases submitted to the Court where the reason for that intervention is a public interest, but without having to show that the interest is sufficiently important.

15 It is sufficient to find, in that regard, that the term Member State within the meaning of the institutional provisions concerning proceedings before the courts cannot be broadened, even partially by granting entities within a State certain powers conferred on the Member States, without undermining the institutional balance provided for by the EC Treaty (see the order in Case C‑180/97 Regione Toscana v Commission [1997] ECR I‑5245, paragraph 6, and Case C‑417/04 P Regione Siciliana v Commission [2006] ECR I‑3881, paragraph 21).

16 Finally, as regards the argument which could be drawn from the fact that, in the order in Case C‑186/02 P Ramondín and RamondínCápsulas v Commission [2003] ECR I‑2415 and the order of 6 March 2003 in Case C‑188/02 P Territorio Histórico de Álava v Commission, not published in the ECR, the President of the Court granted leave to the Autonomous Community of La Rioja to intervene in cases concerning applications for annulment of a decision of the Commission of the European Communities categorising certain tax measures as State aid, it must be pointed out that the circumstances of those two cases differ from those in the present case. By those orders, the Autonomous Community of La Rioja was granted leave to intervene as a territorial body bordering the Territorio Histórico de Álava which, by putting in place an aid scheme for undertakings, had encouraged the undertaking Ramondín to leave the territory of the Autonomous Community of La Rioja to establish itself in its own territory.

17 However, that situation, in which one public territorial body seeks to support the form of order sought by a party challenging the lawfulness of measures taken by another public territorial body bordering it, more specifically a State aid scheme seeking to create, in the territory of that latter body, more favourable conditions for undertakings in order to attract those undertakings which are established in the territory of the first body, cannot be treated in the same way as the situation characterising the appellants’ application to intervene, having regard to the circumstances of the case concerned. This case does not concern a Community measure whose nature and content directly set the interests of one public territorial body against those of another public territorial body bordering it, such as a Commission decision declaring an aid scheme incompatible with Community law. On the contrary, the nature and the content of a Community measure such as a Community antidumping regulation, which imposes antidumping duty on imports originating in third countries, do not make it possible to identify a direct interest on the part of a public territorial body on the basis of the mere fact that a certain number of persons who have an interest in that regulation being maintained are established in the territory of that body.

18 In those circumstances, it cannot be found that the order under appeal is based on a misinterpretation of the second paragraph of Article 40 of the Statute of the Court of Justice. The appeal brought against that order must therefore be dismissed.

Costs

19 Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Apache Footwear Ltd and Apache II Footwear Ltd (Qingxin) have not applied for such, there is no need to order the Provincia di Ascoli Piceno and the Comune di Monte Urano to pay the costs. Consequently, the parties must be ordered to bear their own costs.

On those grounds, the President of the Court hereby orders:

1. The appeal is dismissed.

2. Apache Footwear Ltd, Apache II Footwear Ltd (Qingxin), the Provincia di Ascoli Piceno and the Comune di Monte Urano shall bear their own costs.

Luxembourg, 25 January 2008.









R. Grass V. Skouris