Opinion of Advocate General Szpunar delivered on 14 July 2022.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2022:575
• Date: 14 July 2022

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 14 July 2022 (1)

Cases C‑31/22 P(I),C‑32/22 P(I) and C‑74/22 P(I)

Atlas Copco Airpower,

Atlas Copco AB (C‑31/22 P(I))

Anheuser-Busch Inbev,

Ampar (C‑32/22 P(I))

Soudal NV,

Esko-Graphics BVBA (C‑74/22 P(I))

v

Magnetrol International

and European Commission

(Appeal – Intervention – Appeal on intervention – Admission of interventions in proceedings on appeal against a judgment of the General Court – Setting aside of that judgment and referral of the case back to the General Court – Implicit exclusion, by the General Court, of the interveners on appeal as parties to the proceedings following referral)

I. Introduction

1. The present cases expressly raise the unprecedented question whether the status of intervener, admitted by the Court of Justice at the stage of appeal proceedings, continues at the stage following the referral of the case back to the General Court. It also provides the Court with the opportunity to adjudicate on the rules relating to the admissibility of an appeal against a decision rejecting an application to intervene.

II. Legal framework

A. The Statute of the Court of Justice of the European Union

2. The first paragraph of Article 39 of Protocol (No 3) on the Statute of the Court of Justice of the European Union (‘the Statute of the Court of Justice of the European Union’) provides:

‘The President of the Court of Justice may, by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in this Statute and which shall be laid down in the Rules of Procedure, adjudicate upon applications to suspend execution, as provided for in Article 278 [TFEU] and Article 157 of the EAEC Treaty, or to prescribe interim measures pursuant to Article 279 [TFEU], or to suspend enforcement in accordance with the fourth paragraph of Article 299 [TFEU] or the third paragraph of Article 164 of the EAEC Treaty.’

3. The first, second and fourth paragraphs of Article 40 of the Statute of the Court of Justice of the European Union provide:

‘Member States and institutions of the Union may intervene in cases before the Court of Justice.

The same right shall be open to the bodies, offices and agencies of the Union and to any other person which can establish an interest in the result of a case submitted to the Court. Natural or legal persons shall not intervene in cases between Member States, between institutions of the Union or between Member States and institutions of the Union.

…

An application to intervene shall be limited to supporting the form of order sought by one of the parties.’

4. The first and third paragraphs of Article 56 of that Statute provide:

‘An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the General Court and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility.

…

With the exception of cases relating to disputes between the Union and its servants, an appeal may also be brought by Member States and institutions of the Union which did not intervene in the proceedings before the General Court. Such Member States and institutions shall be in the same position as Member States or institutions which intervened at first instance.’

5. Article 57 of the Statute is worded as follows:

‘Any person whose application to intervene has been dismissed by the General Court may appeal to the Court of Justice within two weeks from the notification of the decision dismissing the application.

The parties to the proceedings may appeal to the Court of Justice against any decision of the General Court made pursuant to Article 278 or Article 279 or the fourth paragraph of Article 299 [TFEU] or Article 157 or the third paragraph of Article 164 of the EAEC Treaty within two months from their notification.

The appeal referred to in the first two paragraphs of this Article shall be heard and determined under the procedure referred to in Article 39.’

6. The first and second paragraphs of Article 61 of that Statute provide:

‘If the appeal is well founded, the Court of Justice shall quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

Where a case is referred back to the General Court, that Court shall be bound by the decision of the Court of Justice on points of law.’

B. The Rules of Procedure of the Court of Justice

7. Article 172 of the Rules of Procedure of the Court of Justice, headed ‘Parties authorised to lodge a response’, states:

‘Any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service on him of the appeal. The time limit for submitting a response shall not be extended.’

C. The Rules of Procedure of the General Court

8. Article 1(2)(c) of the Rules of Procedure of the General Court states:

‘2. For the purposes of these Rules:

…

(c) “party” and “parties”, unless otherwise specified, means any party to the proceedings, including interveners;

…’

9. Article 142 of those Rules of Procedure, headed ‘Object and effects of the intervention’, provides:

‘1. The intervention shall be limited to supporting, in whole or in part, the form of order sought by one of the main parties. It shall not confer the same procedural rights as those conferred on the main parties and, in particular, shall not give rise to any right to request that a hearing be held.

2. The intervention shall be ancillary to the main proceedings. It shall become devoid of purpose if the case is removed from the register of the General Court as a result of a main party’s discontinuance or withdrawal from the proceedings or of an agreement between the main parties, or where the application is declared inadmissible.

3. The intervener must accept the case as he finds it at the time of his intervention.’

10. Article 143 of those Rules of Procedure, headed ‘Application to intervene’, provides, in paragraph 1:

‘1. An application to intervene must be submitted within six weeks of the publication of the notice referred to in Article 79.’

11. Article 217(1) of those Rules of Procedure states:

‘Where the decision later set aside by the Court of Justice was made after the written procedure before the General Court on the substance of the case had been closed, the parties to the proceedings before the General Court may lodge their written observations on the conclusions to be drawn from the decision of the Court of Justice for the outcome of the proceedings within two months of the service on them of the decision of the Court of Justice. This time limit may not be extended.’

12. Article 219 of those Rules of Procedure, headed ‘Costs’, states:

‘The General Court shall decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice.’

III. Background to the disputes

13. By Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61, ‘the decision at issue’), the European Commission found that the exemptions granted by the Kingdom of Belgium constituted an aid scheme within the meaning of Article 107(1) TFEU that was incompatible with the internal market and had been put into effect in breach of Article 108(3) TFEU. The Commission ordered that the aid thus granted be recovered from the beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision.

IV. The procedure before the General Court and before the Court of Justice and the forms of order sought

14. By applications lodged at the Registry of the General Court on 22 March and 25 May 2016, respectively, the Kingdom of Belgium and Magnetrol International NV brought actions for annulment of the decision at issue.

15. The General Court decided to join Cases T‑131/16, Belgium v Commission, and T‑263/16, Magnetrol International v Commission, for the purposes of the oral part of the procedure and the decision closing the proceedings.

16. By judgment of the General Court of the European Union of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91), the General Court annulled the decision at issue.

17. On 24 April 2019, the Commission lodged an appeal against that judgment.

18. By orders of the President of the Court of Justice of 15 October 2019, Soudal NV, Esko-Graphics BVBA, Flir Systems Trading Belgium BVBA, Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower SAS, Atlas Copco AB, Wabco Europe BVBA and Celio International NV were granted leave to intervene in support of the form of order sought by Magnetrol International.

19. By judgment of 16 September 2021, Commission v Belgium and Magnetrol International (C‑337/19 P, EU:C:2021:741), the Court of Justice:

– set aside the judgment of the General Court of the European Union of 14 February 2019, Belgium and Magnetrol International v Commission (T‑131/16 and T‑263/16, EU:T:2019:91);

– rejected the first and second pleas in law in Case T‑131/16 and the first plea in law and the first part of the third plea in law in Case T‑263/16;

– referred the case back to the General Court for a ruling on the third to fifth pleas in law in Case T‑131/16 and on the second plea in law, the second and third parts of the third plea in law and the fourth plea in law in Case T‑263/16; and

– reserved the costs.

20. Soudal and Esko-Graphics, and also Atlas Copco Airpower and Atlas Copco, Anheuser-Busch Inbev and Ampar, submitted observations to the General Court on the consequences of the...