CELEX: 62015CO0362
Language: en
Date: 2015-10-06 00:00:00
Title: Order of the Vice-President of the Court of 6 October 2015.#Anonymos Elliniki Metalleftiki kai Metallourgiki Etairia Larymnis Larko v European Commission.#Appeal — Intervention — Creditor of a main party — Interest in the result of the case — None.#Case C-362/15 P(I).

ORDER OF THE VICE-PRESIDENT OF THE COURT
      6 October 2015 (
            *
         )
      ‛Appeal — Intervention — Creditor of a main party — Interest in the result of the case — None’
      In Case C‑362/15 P(I),
      APPEAL under Article 57 of the Statute of the Court of Justice of the European Union, brought on 14 July 2015,
      
         Anonymos Elliniki Metalleftiki kai Metallourgiki Etairia Larymnis Larko, established in Kallithea (Greece), represented by V. Koulouris, dikigoros,
      appellant,
      the other parties to the proceedings being:
      
         Larko Geniki Metalleftiki kai Metallourgiki AE, established in Athens (Greece),
      applicant at first instance,
      
         European Commission, represented by A. Bouchagiar and É. Gippini Fournier, acting as Agents, with an address for service in Luxembourg,
      defendant at first instance,
      THE VICE-PRESIDENT OF THE COURT,
      the First Advocate General, M. Wathelet, having been heard,
      makes the following
      
         Order
      
      
               1
            
            
               By its appeal, Anonymos Elliniki Metalleftiki kai Metallourgiki Etairia Larymnis Larko (‘Old Larko’) seeks to have set aside the order of the General Court of the European Union of 11 June 2015 in Larko v Commission (T‑412/14, EU:T:2015:431, ‘the order under appeal), whereby the General Court dismissed its application to intervene in support of the form of order sought by Larko Geniki Metalleftiki kai Metallourgiki AE (‘New Larko’), the applicant at first instance in Case T‑412/14.
            
         
               2
            
            
               In 1989 New Larko took over the activity of extraction, processing and marketing of ferronickel previously carried out by Old Larko. It is apparent from the file that New Larko owes Old Larko considerable sums of money. By its application in Case T‑412/14, New Larko asks the General Court to annul Commission Decision C(2014) 1805 of 27 March 2014 concerning State aid implemented by Greece in favour of New Larko in connection with the sale of certain of its assets (OJ 2014 C 156, p. 1; ‘the decision at issue’). In that decision, the European Commission decided that the sale of the assets of New Larko in accordance with the proposed disposal plan did not constitute State aid and that, on the basis of that plan, there was no economic continuity between New Larko and the purchasers of those assets as regards the repayment of any previous State aid.
            
         
               3
            
            
               In addition, Old Larko asks the Court to uphold its application to intervene.
            
         
               4
            
            
               The Commission submitted its observations on the appeal on 29 July 2015.
            
         
         The appeal
      
      
               5
            
            
               It should be borne in mind at the outset that, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person may intervene in cases before the Courts of the European Union if he can establish an interest in the result of a case submitted to those Courts.
            
         
               6
            
            
               According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute, 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 words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (see order of the President of the Court in Commission v EnBW, C‑365/12 P, EU:C:2013:83, paragraph 7 and the case-law cited).
            
         
               7
            
            
               In that regard, it is appropriate, in particular, to ascertain that the applicant to intervene is directly affected by the contested measure and that his interest in the result of the case is certain (see order of the President of the Court in Mory and Others v Commission, C‑33/14 P, EU:C:2015:135, paragraph 7 and the case-law cited). In principle, an interest in the result of the case can be considered to be sufficiently direct only if that result is capable of altering the legal position of the applicant to intervene (see, to that effect, orders of the President of the Court in National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 61; Schenker v Air France and Commission, C‑589/11 P(I), EU:C:2012:332, paragraphs 14 and 15; and also Mory and Others v Commission, C‑33/14 P, EU:C:2015:135, paragraphs 4 and 11).
            
         
               8
            
            
               It is in the light of those considerations that the Court must examine the pleas in law put forward by Old Larko.
            
         
               9
            
            
               This appeal is structured around three pleas in law, alleging, respectively:
               
                        —
                     
                     
                        failure to state reasons for the order under appeal as regards the absence of direct interest;
                     
                  
                        —
                     
                     
                        breach of the second paragraph of Article 40 of the State of the Court of Justice as regards the absence of direct interest, this plea consisting of two parts, alleging, first, incorrect interpretation and application of that provision and, second, distortion of the evidence and failure to state reasons; and
                     
                  
                        —
                     
                     
                        breach of the second paragraph of Article 40 of the Statute of the Court of Justice as regards the absence of a certain interest.
                     
                  
         
         First plea
      
      
               10
            
            
               Old Larko observes that, apart from the decision at issue, the Commission also adopted on the same date, 27 March 2014, Commission Decision 2014/539/EU on the State aid SA.34572 (13/C) (ex 13/NN) implemented by Greece for [New Larko] (OJ 2014 L 254, p. 24; ‘the incompatibility decision’). It observes that in that decision the Commission decided that certain aid granted to New Larko was incompatible with the internal market and ordered its recovery.
            
         
               11
            
            
               According to Old Larko, while the General Court stated, at paragraph 13 of the order under appeal, that it relies, as the only significant creditor of New Larko, on the combined effect of the decision at issue and the incompatibility decision in order to demonstrate that those decisions prevent it from obtaining payments of its debts by New Larko, it subsequently omitted to examine that problem. At paragraphs 15 to 17 of the order under appeal, concerning Old Larko’s direct interest, the General Court confined itself to rejecting certain partial arguments, without placing them in their context, and it failed to carry out any global assessment of those arguments.
            
         
               12
            
            
               In that regard, it should be borne in mind that it is clear from established case-law that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and its reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment in Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 30 and the case-law cited).
            
         
               13
            
            
               In the order under appeal, the General Court, after establishing, at paragraph 15 of that order, that there was no direct link between, on the one hand, the decision at issue and the incompatibility decision and, on the other, the claims relied on by Old Larko, observed, at paragraph 16 of that order, that the combined of the two decisions in question did necessarily mean that it was impossible for Old Larko to obtain satisfaction of its claims against New Larko. The General Court went on to state, at paragraph 17 of the order under appeal, that the interests of Old Larko will be effected only by the result of the dispute through the intermediary of the financial consequences which that solution will entail for New Larko. The interests of Old Larko would therefore be linked only indirectly to the result of the dispute.
            
         
               14
            
            
               It must be held, in the light, in particular, of the case-law referred to at paragraph 12 of the present order, that the General Court thus explained sufficiently, at paragraphs 15 to 17 of the order under appeal, the specific reasons why it considered that the arguments of Old Larko relating to the combined effect of the decision at issue and the compatibility decision must be rejected. Those reasons enable Old Larko to know, independently of whether they are well founded, the reasons why the General Court concluded that Old Larko had no direct interest in the result of the dispute and provide this Court with sufficient material for it to exercise its power of review, in the light of the case-law referred to at paragraphs 6 and 7 of the present order.
            
         
               15
            
            
               In those circumstances, the first plea must be rejected.
            
         
         Second plea
      
      
               16
            
            
               By the first part of its second plea, Old Larko takes issue with the General Court for having erred in law in interpreting and applying the second paragraph of Article 40 of the Statute of the Court of Justice in that it applied that provision in abstracto, without considering the particular features of the case. In particular, the General Court ignored the combined effect of the decision at issue and the incompatibility decision, and also the particular position of Old Larko as the sole significant creditor of New Larko. In addition, it maintains that Old Larko is in a special position owing to the measures taken by the Greek authorities which, in its submission, makes the recovery of the debts from New Larko more difficult. That series of relationships and situations gives rise, de facto, to an interest in the result of the case. Thus, in the appellant’s submission, the General Court breached that provision by considering that the appellant’s interest was insufficient.
            
         
               17
            
            
               In that regard, it should be observed that the fact that a debtor, such as New Larko, is alone required to repay State aid, a consequence in the present case of the combined effect of the decision at issue, which precludes the possibility that those acquiring the assets of New Larko will be required, jointly and severally with the latter, to repay certain aid, and the incompatibility decision, which declares that aid incompatible with the internal market, on the assumption that those two decisions are valid, may indeed have an economic and financial impact on its creditors, in so far as it reduces their prospects of obtaining payment of their claims in full, as the General Court correctly observed at paragraph 17 of the order under appeal.
            
         
               18
            
            
               The fact that Old Larko is the only significant creditor of New Larko and that it has allegedly encountered particularly difficulties in recovering its claims owing to certain measures adopted by the Greek authorities has the consequence that such an obligation placed on New Larko is likely, in practice, to affect the economic and financial interests of Old Larko to a greater extent than those of the other creditors.
            
         
               19
            
            
               However, such an adverse effect, even where it is significant, on the economic and financial interests of a creditor of a main party in a case pending before the General Court cannot be considered to be a direct adverse effect on the interests of that creditor for the purposes of the case-law cited at paragraphs 6 and 7 of the present order, since it does not alter that creditor’s legal situation. Such economic and financial interests of a creditor are mingled with those of its debtor who is a main party in the case at issue and, like the interests of the shareholders of such a party, are affected only indirectly by the result of the case, through the consequences which that result has for that main party (see, concerning the case of the main shareholder of a main party, order of the President of the Court in AITEC v Commission, C‑97/92, C‑105/92 and C‑106/92, EU:C:1993:954, paragraph 15).
            
         
               20
            
            
               The position is different if the result of the case is such as to change the actual legal situation of a creditor who seeks leave to intervene in a dispute in support of the form of order sought by its debtor. That is the case, in particular, if that result has an impact on the legal classification of a debt in national law, as the debt may include in the secured liabilities or the unsecured liabilities of the debtor depending on the outcome of the proceedings before the Courts of the European Union (order of the President of the Court in Belgium v Commission, C‑197/99 P, EU:C:2000:720, paragraphs 29 to 31). In the present case, although Old Larko maintains that the economic value of its claims against New Larko is liable to be affected by the result of the case pending before the General Court, it puts forward no argument capable of demonstrating that the legal classification of its claims will be affected as such by that result.
            
         
               21
            
            
               It follows that the General Court did not err in law when interpreting and applying the second paragraph of Article 40 of the Statute of the Court of Justice in finding that the interests of the former Larko are not directly affected by the result of the case pending before it.
            
         
               22
            
            
               By the second part of the second plea, Old Larko claims that the General Court distorted the evidence and also failed to state reasons, in that it held, in the first sentence of paragraph 16 of the order under appeal, that the combined effect of the decision at issue and the incompatibility decision did not necessarily make it impossible for Old Larko to obtain satisfaction of its claims against New Larko. In its submission, that flawed assessment, which constitutes the core of the General Court’s reasoning, runs counter to the evidence adduced before the General Court by Old Larko, which shows that the combined effect of those two measures would deprive New Larko of all of its assets and that Old Larko would be the only significant creditor of New Larko. At the very least, the General Court ought to have stated its reasons for not taking that evidence into consideration.
            
         
               23
            
            
               In that regard, it should be observed that Old Larko’s arguments are based on a misreading of the first sentence of paragraph 16 of the order under appeal.
            
         
               24
            
            
               In fact, that sentence must be read in the light of the grounds that precede and follow it. After observing, at paragraph 15 of the order under appeal, that the decision at issue and the incompatibility decision had no direct bearing on Old Larko’s claims against New Larko, the General Court held, at paragraph 17 of the order under appeal, that Old Larko’s interests will be affected by the forthcoming result of the case pending before it solely through the financial consequences which that result will entail for New Larko.
            
         
               25
            
            
               The first sentence of paragraph 16 of the order under appeal forms part of that line of reasoning and therefore, contrary to Old Larko’s contention, it does not constitute the heart of the General Court’s reasoning. In observing that the combined effect of the two decisions in question did not necessarily make it impossible for Old Larko to obtain satisfaction of its claims against New Larko, the General Court merely pointed out, in essence, that if it should prove impossible for Old Larko to recover its claims, that would not be the direct consequence of the combined effect of those two decisions but, if applicable, of the lack of sufficient resources in the assets of the new Larko, a circumstance would could not in law be attributed to a single factor.
            
         
               26
            
            
               In any event, even on the assumption that the first sentence of paragraph 16 of the order under appeal were vitiated by a distortion of the facts, that circumstance would not constitute a ground for setting that order aside. As is apparent from paragraph 19 of the present order, the adverse effect on the economic and financial interests of New Larko resulting from the combined effect of the decision at issue and the incompatibility decision on which Old Larko relies is such as to demonstrate only an indirect interest in the result of the case for Old Larko, which does not satisfy the conditions laid down in the second paragraph of Article 40 of the Statute of the Court of Justice.
            
         
               27
            
            
               As regards the allegation relating to a failure to state reasons in the order under appeal, it was held in the context of the first plea, at paragraph 14 of the present order, that the General Court stated to the requisite legal standard the reasons for its finding that the result of the case would not directly affect the interests of Old Larko.
            
         
               28
            
            
               It follows from the foregoing that the second plea must be rejected.
            
         
         Third plea
      
      
               29
            
            
               By its third plea, Old Larko claims that the General Court erred in law, at paragraphs 18 to 20 of the order under appeal, in holding, in essence, that its interest in the result of the case was not certain sine other creditors might have priority over the claims of Old Larko and that the economic resources of New Larko might in any event be insufficient to satisfy the claims of Old Larko. Furthermore, it challenges the requirement of a certain interest, in the light of the wording of the second paragraph of Article 40 of the Statute of the Court of Justice.
            
         
               30
            
            
               In that regard, it should be borne in mind that, according to settled case-law, arguments directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective ab initio (judgment in Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 33 and the case-law cited).
            
         
               31
            
            
               In the present case, it must be stated that, in the absence of a direct interest in the result of the case for Old Larko, a circumstance which is definitively acquired in the light of the rejection of the first and second pleas, the existence of the error of law alleged in the context of the third plea, even on the assumption that it were established, could not lead to the order under appeal being set aside either.
            
         
               32
            
            
               Accordingly, the third plea is ineffective ab initio and must be rejected, in accordance with the case-law referred to at paragraph 30 of the present order.
            
         
               33
            
            
               It follows from all of the foregoing that since none of the pleas in law put forward by Old Larko in support of its appeal has been upheld, the appeal must be dismissed in its entirety.
            
         
         Costs
      
      
               34
            
            
               Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against Old Larko and the latter has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission.
            
          
            
               On those grounds, the Vice-President of the Court hereby orders:
            
          
            
               
                        
                           1.
                        
                     
                     
                        
                           The appeal is dismissed.
                        
                     
                  
          
            
               
                        
                           2.
                        
                     
                     
                        
                           Anonymos Elliniki Metalleftiki kai Metallourgiki Etairia Larymnis Larko, in addition to bearing its own costs, shall pay those incurred by the Commission.
                        
                     
                  
          
               
                  
                     [Signatures]
                  
               
            (
            *
         )   Language of the case: Greek.