ORDER OF THE COURT (Grand Chamber)

1 August 2022 ( *1 )

(Appeal – Intervention – State aid – Aid scheme implemented by the Kingdom of Belgium – Admission of interventions in appeal proceedings against a judgment of the General Court – Annulment of the decision of the General Court – Referral of the case back to the General Court – Decision of the General Court refusing to place on the case file written observations on the judgment effecting that referral lodged by an intervener in the appeal – Implied decision of the General Court refusing to grant an intervener in the appeal the status of intervener before the General Court – Admissibility of the appeal – Status of intervener before the General Court of an intervener in the appeal – Appeal brought out of time – Excusable error)

In Case C‑74/22 P(I),

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 January 2022,

Soudal NV , established in Turnhout (Belgium),

Esko-Graphics BVBA , established in Ghent (Belgium),

represented by H. Viaene, advocaat,

appellants,

the other parties to the proceedings being:

Magnetrol International NV , established in Zele (Belgium),

applicant at first instance,

European Commission , represented by P.-J. Loewenthal and F. Tomat, acting as Agents,

defendant at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen (Rapporteur), Vice-President, A. Arabadjiev, C. Lycourgos, E. Regan, I. Jarukaitis, N. Jääskinen and I. Ziemele, Presidents of Chambers, M. Ilešič, P. G. Xuereb, N. Piçarra, L.S. Rossi, A. Kumin, N. Wahl and O. Spineanu-Matei, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 14 July 2022,

makes the following

Order

1By their appeal, Soudal NV and Esko-Graphics BVBA seek the annulment of the decision of the General Court of the European Union of 6 December 2021 by which it refused to grant them the status of intervener in Case T‑263/16 RENV and place on the file in that case the written observations lodged by them on the conclusions to be drawn from the judgment of the Court of Justice of 16 September 2021, Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), for the outcome of the proceedings in that case (‘the contested decision’).

Legal context

2Article 1(3)(c) of the Rules of Procedure of the General Court states that, for the purposes of those Rules of Procedure, ‘party’ and ‘parties’, unless otherwise specified, means any party to the proceedings, including interveners.

3Article 60 of those Rules of Procedure provides that the procedural time limits are to be extended on account of distance by a single period of 10 days.

4Article 79 of the said Rules of Procedure provides:

‘A notice shall be published in the Official Journal of the European Union indicating the date of lodging of an application initiating proceedings, the names of the main parties, the form of order sought by the applicant and a summary of the pleas in law and of the main supporting arguments.’

5Articles 142 to 145 of the same Rules of Procedure lay down the rules governing intervention before the General Court.

6Article 143(1) of the Rules of Procedure of the General Court provides that ‘an application to intervene must be submitted within six weeks of the publication of the notice referred to in Article 79’.

7Under Article 215 of those Rules of Procedure:

‘Where the Court of Justice sets aside a judgment or an order of the General Court and refers the case back to that Court, the latter shall be seised of the case by the decision so referring it.’

8Article 217 of the said Rules of Procedure is worded as follows:

‘1. 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.

…

3. The President may, if the circumstances so justify, allow supplementary statements of written observations to be lodged.’

9Article 219 of the same Rules of Procedure provides:

‘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.’

Facts

10By 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 Commission decision’), the European Commission found that certain exemptions granted by the Kingdom of Belgium constituted an aid scheme, within the meaning of Article 107(1) TFEU, which was incompatible with the internal market and which had been implemented in breach of Article 108(3) TFEU. The Commission ordered that the aid granted be recovered from the beneficiaries, a definitive list of which was to be drawn up by the Kingdom of Belgium following the decision.

The proceedings before the General Court and before the Court of Justice and the contested decision

11By applications lodged at the Registry of the General Court on 22 March and 25 May 2016, the Kingdom of Belgium and Magnetrol International NV brought actions for the annulment of the Commission decision, registered as Cases T‑131/16 and T‑263/16, respectively.

12By application lodged at the Registry of the General Court on 2 May 2016, Soudal brought an action for the annulment of that decision, registered as Case T‑201/16. By application lodged at the Registry of the General Court on 28 June 2016, Esko-Graphics brought an action for the annulment of that decision, registered as Case T‑335/16.

13Subsequently, the Registrar of the General Court informed the parties in Cases T‑201/16 and T‑335/16 that the President of the General Court Chamber seised of the case had decided to stay the proceedings in those cases until the outcome of the proceedings in Cases T‑131/16 and T‑263/16.

14By order of 17 May 2018, the President of the Seventh Chamber, Extended Composition, of the General Court decided to join Cases T‑131/16 and T‑263/16 for the purposes of the oral part of the procedure and the decision closing the proceedings.

15By judgment 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 Commission decision.

16On 24 April 2019, the Commission lodged an appeal against that judgment. That appeal was registered as Case C‑337/19 P.

17By orders of 15 October 2019, Commission v Belgium and Magnetrol International, the President of the Court admitted the intervention of Anheuser-Busch InBev SA/NV, Ampar BVBA, Atlas Copco Airpower NV and Atlas Copco AB ( C‑337/19 P , not published, EU:C:2019:909 ), and of Soudal and Esko-Graphics ( C‑337/19 P , not published, EU:C:2019:915 ), in support of the form of order sought by Magnetrol International.

18By judgment of 16 September 2021, Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), the Court:

–

set aside the judgment of the General Court 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 the action in Case T‑131/16 and the first plea and the first part of the third plea of the action in Case T‑263/16;

–

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

–

reserved the costs.

19On 16 November 2021, Soudal and Esko-Graphics lodged with the General Court, on the basis of Article 217 of its Rules of Procedure, observations on the conclusions to be drawn from the judgment of 16 September 2021, Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), for the outcome of the proceedings in Case T‑263/16 RENV (‘the observations in question’).

20By letter dated 6 December 2021, notified to Soudal and Esko-Graphics on 17 December 2021, the Registrar of the General Court informed them that, since those observations did not constitute a document provided for by the Rules of Procedure of the General Court, the President of the General Court Chamber seised of the case had decided not to place them on the file in that case.

21By letter of 29 December 2021, addressed to the President of the General Court and its members, Soudal and Esko-Graphics, relying in particular on the order of the President of the Court of Justice of 15 October 2019, Commission v Belgium and Magnetrol International ( C‑337/19 P , not published, EU:C:2019:915 ), and on the case-law of the General Court, requested, first, a correction of that court’s ‘oversight’ and, second, confirmation of their status as interveners before the General Court, requesting a reply within five days.

22By letter of 11 January 2022, the Registrar of the General Court acknowledged receipt of the appellants’ letter of 29 December 2021. He also drew the appellants’ attention, first, to the ‘fact’ that the submission of observations in Case T‑263/16 RENV by the interveners admitted to participate in the proceedings before the Court of Justice in Case C‑337/19 P was not provided for in the Rules of Procedure of the General Court and, second, to Article 70(2) of those Rules of Procedure, according to which the President of the General Court may decide on the resumption of the proceedings in the stayed cases before the end of the stay.

Forms of order sought by the parties

23Soudal and Esko-Graphics claim that the Court should:

–

annul the contested decision;

–

order that their written observations be placed on the file in Case T‑263/16 RENV; and

–

find that the appellants retained their status as interveners in Case T‑263/16 RENV after that case was referred back to the General Court by the Court.

24The Commission contends that the Court should:

–

declare the appeal inadmissible;

–

in the alternative, dismiss the appeal as unfounded; and

–

order Soudal and Esko-Graphics to pay the costs.

The appeal

Admissibility of the appeal

25The Commission contends that the appeal is inadmissible on account both of the nature of the contested decision and of the fact that it was brought out of time.

Plea of inadmissibility based on the nature of the contested decision

– Arguments

26The Commission submits that, by the contested decision, the General Court merely refused to place on the file in Case T‑263/16 RENV the observations in question. That refusal decision does not, however, fall within one of the categories of decisions against which an appeal may be brought under the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union.

27Moreover, although the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union does allow an appeal to be brought against a decision of the General Court dismissing an application to intervene, the appellants did not, in the present case, lodge any application to intervene before the General Court. Consequently, the General Court did not reject such a request, meaning that that provision is not applicable in the present case.

28According to Soudal and Esko-Graphics, the General Court’s decision not to place the observations in question on the file in Case T‑263/16 RENV constitutes an implicit refusal to admit them as interveners in that case.

29The reasons given by the President of the Court in the order of 15 October 2019, Commission v Belgium and Magnetrol International ( C‑337/19 P , not published, EU:C:2019:915 ), by which he authorised the intervention of Soudal and Esko-Graphics in the appeal are also relevant in Case T‑263/16 RENV.

– Assessment

30As a preliminary point, in order to examine the admissibility of the appeal, it is appropriate to determine the scope of the decision contained in the letter of the Registrar of the General Court dated 6 December 2021.

31In that regard, it is important to note that Article 217(1) of the Rules of Procedure of the General Court provides that, where the Court of Justice sets aside a decision of the General Court and decides to refer the case back to the latter after the written procedure on the substance had been closed, the parties to the proceedings before the General Court may submit 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 service of that decision.

32It is common ground, first, that the present case corresponds to the scenario referred to in that provision and, second, that the observations in question were lodged within the period prescribed in the said provision, plus the extension on account of distance laid down in Article 60 of those Rules of Procedure, such that the rejection of those observations is not based on the fact that they were lodged too late.

33It follows that, despite its summary nature, the letter of the Registrar of the General Court dated 6 December 2021 must be understood, in so far as it mentions the General Court’s refusal to place the observations in question on the file in Case T‑263/16 RENV on the ground that they constitute a document not provided for by the Rules of Procedure of the General Court, as reflecting the decision of the General Court to refuse to grant the appellants the status of interveners in that case, which they consider that they acquired automatically on account of their admission to intervene in the appeal in Case C‑337/19 P.

34That assessment is supported by the letter of the Registrar of the General Court dated 11 January 2022, in which the applicants’ attention was drawn to the ‘fact’ that the lodging of observations in Case T‑263/16 RENV by the interveners admitted to participate in the proceedings before the Court of Justice in Case C‑337/19 P was not provided for in the Rules of Procedure of the General Court.

35Accordingly, the Commission’s argument that the contested decision merely refused to place the observations in question on the file in Case T‑263/16 RENV must be rejected.

36So far as concerns the right to bring an appeal against the contested decision, it must be pointed out that, on 8 March 2022, the Court decided that the present appeal, which had been brought on the basis of Article 56 of the Statute of the Court of Justice of the European Union, was to be classified as an appeal brought under the first paragraph of Article 57 of that statute, that classification subsequently being brought to the parties’ attention upon the service of that appeal, by letter of the Court Registry of 14 March 2022.

37The first paragraph of Article 57 of that statute provides that an appeal may be brought before the Court against decisions of the General Court dismissing an application to intervene, by any person whose application has been dismissed.

38In the present case, it is admittedly common ground that, by the contested decision, the General Court did not dismiss an application to intervene, the appellants not having submitted such an application to the General Court.

39Nevertheless, it should also be noted that the scope of the decision, inherent in the letter of the Registrar of the General Court dated 6 December 2021, to refuse to grant the appellants the status of interveners in Case T‑263/16 RENV is similar to that which would have flowed from a decision of the General Court to dismiss an application to intervene submitted by the appellants, namely that those two decisions deprive a party which claims to enjoy, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, a particular procedural position, by reason of its interest in the result of the case, of all the rights inherent in that position.

40Moreover, where the Court has deemed an appeal well founded, set aside the decision of the General Court and referred the case back to it for judgment, it cannot reasonably be expected of an intervener in that appeal, which considers itself automatically to have the status of intervener before the General Court, to submit a formal application to intervene to that latter court for the sole purpose of bringing an appeal, under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, against the decision dismissing that application.

41Such an application could, in any event, only be dismissed by the General Court as being out of time, since Article 143(1) of its Rules of Procedure, read in conjunction with Article 79 of those Rules of Procedure, provides that an application to intervene must be submitted within six weeks of the publication in the Official Journal of the European Union of the notice which initially announced the lodging of the application initiating proceedings in the case concerned.

42In that context, to consider that an intervener in an appeal in a case, which claims to enjoy the status of intervener before the General Court automatically following the referral of that case back to that court, cannot bring an appeal under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union against a decision of the General Court refusing it that status, on the sole ground that the General Court did not formally dismiss an application to intervene, would deprive the party concerned of all judicial protection enabling it to defend the procedural rights before the General Court which it considers to derive from Article 40 of that statute, even though the very purpose of the first paragraph of Article 57 of the said statute is to guarantee that protection.

43In the event that the said intervener in the appeal rightly relied on its status as intervener before the General Court in a case that had been referred back to it by the Court of Justice – a matter which is intended to be decided at the stage of the examination of the merits of the present appeal and cannot therefore be settled at the stage of the assessment of its admissibility – no other remedy would be open to it to assert its procedural rights arising under Article 40 of the same statute.

44Thus, in the first place, an intervener in an appeal cannot bring, under Article 56 of the Statute of the Court of Justice of the European Union, an appeal against a decision of the General Court denying it the status of intervener in the case that has been referred back to that court by the Court of Justice.

45That provision provides that an appeal may be brought 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.

49Furthermore, it is important to note that, when it decides on a procedural issue relating to a plea of lack of competence or inadmissibility, the General Court rules on a request from a party for it to close the proceedings without going to the substance of the case, which is why such a decision must be capable of being referred to the Court of Justice without awaiting a decision on the merits. That is not the case, however, with a decision disposing of a procedural issue relating to an intervention.

50The Court has thus held that the decision by which the General Court grants an application to intervene cannot be the subject of an appeal under Article 56 of the Statute of the Court of Justice of the European Union (see, to that effect, judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P , EU:C:2019:634 , paragraphs 29 and 30 ).

52In the second place, the lodging of an appeal under Article 56 of the Statute of the Court of Justice of the European Union against the decision closing the proceedings in which the person concerned claims to have the status of intervener cannot confer on that person sufficient judicial protection, since that remedy is open only to the parties before the General Court and the exercise of such a remedy would not, in any event, enable the usefulness of a possible intervention before the General Court to be preserved by admitting that person at a stage of the proceedings where that intervention can effectively contribute to the proceedings before that court.

53In the light of the foregoing, the decision by which the General Court, by refusing to place on the file of a case which has been referred back to it by the Court of Justice after annulment of its decision the observations of an intervener in the appeal, on the ground that they constitute a document not provided for in the Rules of Procedure of the General Court, implicitly denies that intervener the status of intervener in that case is liable to be the subject of an appeal on the basis of the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union.

54It follows that the Commission’s plea of inadmissibility based on the nature of the contested decision must be rejected.

Plea of inadmissibility alleging that the appeal was brought out of time

– Arguments

55The Commission recalls that the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union provides that an appeal against a decision of the General Court dismissing an application to intervene must be brought within two weeks from the notification of the dismissal decision. If the present appeal were to be regarded as falling within the scope of that provision, given that the contested decision was notified to the appellants on 17 December 2021, the time limit within which it ought to have been brought expired on 10 January 2022. That appeal having been lodged on 28 February 2022, it must be dismissed as inadmissible.

56A strict application of the rules on procedural time limits is essential in order to ensure legal certainty and to avoid any discrimination or arbitrary treatment.

57In the present case, the Commission considers that the appellants are not entitled to rely on the existence of exceptional circumstances to justify the failure to observe the time limit for appeal. It argues, in particular, that the concept of ‘excusable error’ must be interpreted strictly. The appellants cannot claim to have been unaware, prior to receiving the letter of the Registrar of the General Court dated 11 January 2022, that a final decision had been adopted by the General Court. On the contrary, they acknowledge in their written pleadings that that letter merely confirmed the General Court’s earlier position. It cannot therefore be considered that the conduct of the General Court was such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed trader.

58Soudal and Esko-Graphics maintain that the error in the choice of the legal basis of their appeal is excusable.

59They state, in that regard, that they had not formally made any application to intervene. Moreover, the decision of the General Court was not served on them by way of an order. Similarly, it is not apparent from the letters from the Registrar of the General Court that he had intended to dismiss an application to intervene. Therefore, the conduct of the General Court was such as to give rise to a pardonable confusion in the minds of the appellants as to the type of appeal to be brought against the contested decision. Furthermore, they acted in good faith and with all the diligence required of a normally well-informed trader, as their letter of 29 December 2021 attests.

60In addition, Soudal and Esko-Graphics consider that the period for appeal began to run, in this case, from the receipt of the letter of the Registrar of the General Court dated 11 January 2022. It was only after receiving that letter that the appellants could be certain that the refusal to place the observations in question on the file in Case T‑263/16 RENV was the consequence not of a mere error of assessment on the part of the General Court, but of a position consciously adopted by it. In the alternative, the appellants claim that the delay in bringing their appeal must be regarded as excusable, having regard to the ambiguous conduct adopted by the General Court.

– Assessment

61The first paragraph of Article 57 of the Statute of the Court of Justice of the European Union provides that an appeal may be brought against a decision of the General Court dismissing an application to intervene, within two weeks from the notification of the decision dismissing the application, by any person whose application has been dismissed.

62That two-week period must be extended, pursuant to Article 51 of the Rules of Procedure of the Court of Justice, by a single period of 10 days on account of distance.

63In the present case, following the lodging at the Registry of the General Court of the observations in question, the appellants were the recipients of two letters from the Registrar of the General Court, dated 6 December 2021 and 11 January 2022, respectively.

64It is apparent from paragraphs 31 to 34 and 53 of the present order that the letter from the Registrar of the General Court dated 6 December 2021 must be understood as containing the decision of the General Court to refuse to grant the appellants the status of interveners in Case T‑263/16 RENV, which may be the subject of an appeal under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union.

65It follows that the period for bringing such an appeal began to run on 18 December 2021, the day after the notification of that letter.

66The fact that, in response to a letter from the appellants of 29 December 2021, the Registrar of the General Court sent them a new letter, dated 11 January 2022, cannot result in a new time limit for appeal.

67First, that second letter merely ‘acknowledge[d] receipt’ of the appellants’ letter of 29 December 2021. Second, even if the letter from the Registrar of the General Court of 11 January 2022 were to be read as rejecting the claims expressed by the appellants in their letter of 29 December 2021, that letter from the Registrar of the General Court would merely confirm, in view of the nature of those claims, the decision already set out in the letter from the Registrar of the General Court dated 6 December 2021.

68Consequently, it appears that the present appeal was brought out of time.

69In that regard, it is settled case-law of the Court that no derogation from the application of the European Union’s rules on procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, judgment of 14 December 2016, SV Capital v ABE, C‑577/15 P , EU:C:2016:947 , paragraph 56 , and order of the Vice-President of the Court of 5 July 2018, Müller and Others v QH, C‑187/18 P(I ), not published, EU:C:2018:543 , paragraphs 20 and 21 ).

70Furthermore, although those EU rules may also be derogated from in the event of excusable error on the part of a party, that concept, which must be interpreted strictly, can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person (see, to that effect, judgment of 14 December 2016, SV Capital v ABE, C‑577/15 P , EU:C:2016:947 , paragraph 59 , and order of the Vice-President of the Court of 5 July 2018, Müller and Others v QH, C‑187/18 P(I ), not published, EU:C:2018:543 , paragraph 42 ).

71An error made by a party cannot therefore be regarded as excusable where the exceedance of a procedural time limit is due to the inadequate functioning of the services of the party concerned or to a failure to apply its internal instructions or where the application of a provision not posing any particular difficulties of interpretation is at issue (see, to that effect, judgment of 15 December 1994, Bayer v Commission, C‑195/91 P , EU:C:1994:412 , paragraph 28 ; order of 14 January 2010, SGAE v Commission, C‑112/09 P , EU:C:2010:16 , paragraph 24 ; and order of the Vice-President of the Court of 5 July 2018, Müller and Others v QH, C‑187/18 P(I ), not published, EU:C:2018:543 , paragraph 43 ).

72On the other hand, that excusable nature may be found in an exceptional situation in which the party concerned was faced, as a result of the conduct of an institution and in the light of the wording of the applicable rules, with genuine uncertainty, in particular, as to the identity of the challengeable act or as to the time limits within which an action had to be brought against that act (see, to that effect, judgments of 18 October 1977, Schertzer v Parliament, 25/68 , EU:C:1977:158 , paragraph 19 , and of 5 April 1979, Orlandi v Commission, 117/78 , EU:C:1979:109 , paragraph 11 ).

73It is also apparent from the case-law of the Court that an error may be regarded as excusable where such an exceptional situation is the result of the conduct of an EU Court (see, to that effect, order of 14 January 2010, SGAE v Commission, C‑112/09 P , EU:C:2010:16 , paragraph 29 , and order of the Vice-President of the Court of 5 July 2018, Müller and Others v QH, C‑187/18 P(I ), not published, EU:C:2018:543 , paragraph 43 ).

74In the present case, it should be noted, first of all, that the General Court’s refusal to grant Soudal and Esko-Graphics the status of interveners in Case T‑263/16 RENV, even though they had intervener status in the appeal in Case C‑337/19 P, constitutes, as the Advocate General observed, in essence, in point 79 of his Opinion, a departure from a long-standing practice followed by the General Court and formally endorsed in its case-law.

75In particular, in paragraph 24 of the judgment of the General Court of 23 March 1993, Gill v Commission ( T‑43/89 , EU:T:1993:24 ), the General Court held that, since the Court of Justice had not ruled on an intervener’s costs but had referred the case back to the General Court in its entirety, that intervener in the appeal retained its status as intervener in the procedure following the referral of the case back to the General Court.

76It is true that the General Court departed from that solution, in paragraphs 23 to 26 of its order of 16 June 2020, Uniwersytet Wrocławski v REA ( T‑137/16 RENV , not published, EU:T:2020:275 ).

77However, it had subsequently reaffirmed the merits of that solution in paragraph 65 of its judgment of 23 September 2020, Spain and Others v Commission ( T‑515/13 RENV and T‑719/13 RENV , EU:T:2020:434 ), noting that it was in the interests of the sound administration of justice and was compatible with the Rules of Procedure of the General Court.

78The fact that the Commission lodged an appeal against the latter judgment is irrelevant here, in so far as the interpretation adopted by the General Court in that judgment of its own procedural rules could, in any event, legitimately be regarded, at the date on which the appellants received the letter from the Registrar of the General Court dated 6 December 2021, as reflecting the practice followed within that court.

79Next, it must be pointed out that that letter was of a summary nature, since it did not explicitly state that the General Court was denying the appellants intervener status, and that it did not contain, beyond a general reference to its Rules of Procedure, any reference to the basis of the decision adopted or, a fortiori, a statement of how the General Court intended henceforth to interpret its own procedural rules.

80The summary nature of that letter must be regarded, in the light of the context described in paragraphs 74 to 78 of the present order, as being such as to have given rise to a pardonable confusion in the mind of the party acting in good faith as to the scope of that letter and the opportunity of bringing without delay an appeal against the decision contained therein.

81In that context, the appellants’ decision to attempt to dispel that confusion by promptly reaching out to the General Court, by letter of 29 December 2021, to submit to it arguments relating to their specific procedural situation and to seek clarification of the position it was intending to adopt in relation to that situation, cannot be regarded as a decision which a normally well-informed and diligent person would not have made.

82Last, it follows from paragraphs 36 to 53 of the present order that the legal basis underpinning the appeal to be brought against the General Court’s decision to refuse an intervener in the appeal the status of intervener in a case that has been referred back to the General Court by the Court of Justice was not clearly apparent, at the date on which the present appeal was brought, from the wording of Articles 56 and 57 of the Statute of the Court of Justice of the European Union or from the case-law of the Court of Justice.

83The difficulty, at that date, in determining the rules applicable to the appeal liable to be brought against the contested decision is of decisive importance here, since an appeal under Article 56 of that statute must be brought within two months of the decision of the General Court, whereas it must be within two weeks under Article 57 of the said statute.

84It follows from the combination of all the factors set out in paragraphs 74 to 83 of the present order that the error committed by the appellants as to the time limit within which the present appeal had to be brought must be regarded as excusable.

85Accordingly, the plea of inadmissibility of the Commission alleging that the appeal was brought out of time must be rejected.

86The appeal must therefore be declared inadmissible.

Substance

Arguments

87Soudal and Esko-Graphics submit, by a single ground of appeal, that the General Court committed two errors of law, the first relating to the refusal to place on the file in Case T‑263/16 RENV the observations which they wish to lodge on the conclusions to be drawn from the judgment of 16 September 2021Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), and the second relating to the refusal to grant them the status of interveners in that case.

88In the first place, it follows from the case-law of the General Court that Article 217(1) of the Rules of Procedure of that court does not define the concept of ‘parties to the proceedings before the General Court’ and that that provision does not therefore preclude such a status from being granted to interveners before the Court of Justice in the event of referral of the case back to the General Court. By virtue of that case-law, Soudal and Esko-Graphics ought to have been able to lodge written observations within the meaning of that Article 217(1), which they did within the time limits laid down in that article.

89In the second place, as the General Court has consistently considered, it is in the interests of the proper administration of justice and to ensure the continuity of debate that, where a party has been granted leave to intervene in an appeal, it retains its status as intervener if the case is referred back to the General Court after the latter’s decision has been annulled. Accordingly, the appellants ought to have been regarded as interveners in Case T‑263/16 RENV without having to submit an application to intervene before the General Court.

90That solution is also justified, as is apparent from the case-law of the General Court, in order to enable that court to rule on the costs, when those costs were reserved by the Court of Justice before the case in question was referred back to the General Court. That is precisely the case here.

91The Commission is of the view that the General Court was justified in denying the appellants the status of interveners in Case T‑263/16 RENV.

92Article 217(1) of the Rules of Procedure of the General Court allows, following the referral of the case by the Court of Justice back to the General Court, the lodging of written observations not by ‘the parties to the proceedings before the Court of Justice’ or the ‘parties to the appeal’, but only by the ‘parties to the proceedings before the General Court’. Article 1(2)(c) of those Rules of Procedure clarifies the scope of that Article 217(1) by defining the terms ‘parties’ and ‘party’ as referring to ‘any party to the proceedings, including interveners’.

93Since the appellants cannot rely on the status of ‘parties to the proceedings before the General Court’, to allow the present appeal would be tantamount to creating a category of sui generis intervener, which would be subject neither to the time limit prescribed in Article 143(1) of the Rules of Procedure of the General Court nor to the conditions laid down in Article 143(2) of those Rules of Procedure. If the intervention of such parties were admitted, the Commission would not have the possibility of responding to the observations they lodged. In addition, such a solution would lead, in practice, to a circumvention of the measures for staying certain proceedings adopted to allow the designation and priority treatment of ‘pilot’ cases.

94Furthermore, the case-law of the General Court cited by the appellants is limited to two decisions, the most recent of which is the subject of an appeal in which the Commission is contesting the status of intervener before the General Court of an intervener in the appeal. The appellants’ situation can be distinguished, moreover, from that of the parties at issue in the cases which gave rise to those two decisions of the General Court.

Assessment

95Article 1(2)(c) of the Rules of Procedure of the General Court states that, for the purposes of those Rules of Procedure, ‘party’ and ‘parties’, unless otherwise specified, means any party to the proceedings, including interveners.

96However, that general provision does not specify the cases in which the General Court must grant to a person the status of intervener before it.

97In that regard, although Articles 142 to 145 of those Rules of Procedure govern the system of intervention before the General Court by setting out the rules for submitting applications to intervene and for examining such applications, they do not deal with the status to be accorded to persons who have been admitted by the Court of Justice to intervene in a case at the appeal stage, where the Court has deemed the appeal well founded, set aside the decision of the General Court and referred the case back to that court for judgment.

98Similarly, Articles 217 and 218 of the same Rules of Procedure, the purpose of which is to determine the conduct of the procedure and the rules applicable thereto in proceedings brought after a decision of the General Court has been set aside and the case referred back to it, do not contain any rule specifying the status, in such proceedings, of interveners in the appeal.

99In that context, it is important to note that, as the appellants state, the General Court’s examination of a case following a decision of the Court of Justice setting aside the decision of the General Court and referring that case back to that court is a continuation of the appeal proceedings before the Court of Justice.

100That continuation is explicitly reflected in the Rules of Procedure of the General Court. First of all, it is apparent from Article 215 of those Rules of Procedure that the General Court is directly seised by the decision of the Court of Justice setting aside the decision of the General Court and referring the case back to it for judgment. Next, pursuant to Article 217 of those Rules of Procedure, the time limit allowed for lodging observations on the conclusions to be drawn from the decision of the Court of Justice for the outcome of the proceedings runs from the service of that decision. Finally, Article 219 of the same Rules of Procedure provides that the General Court is to decide on the costs relating not only to the proceedings instituted before it but also to the proceedings on the appeal before the Court of Justice.

101Furthermore, in accordance with the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice quashes a decision of the General Court and refers the case back to it, the General Court is to be bound by the decision of the Court of Justice on points of law.

102It is therefore for the General Court, when re-examining the action at first instance following the referral of the case back to it, to determine the consequences, for the outcome of the proceedings between the parties, of the judgment of the Court of Justice ruling on the appeal.

103The lodging, in such a context, of observations by the parties, authorised by Article 217 of the Rules of Procedure of the General Court, is specifically intended to enable them to set out their position regarding those consequences for the outcome of the proceedings and to supplement the General Court’s information in that regard.

104That provision thus aims to ensure – like Article 172 of the Rules of Procedure of the Court of Justice, which authorises any party to the case before the General Court having an interest in the appeal being allowed or dismissed to submit a response to the Court of Justice – the continuity of debate when dealing with the same case before the EU Courts.

105In the first place, the grant by the Court of Justice of the status of intervener to a person presupposes, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, that that person has been able to establish an interest in the result of the case submitted to the Court.

106Therefore, the consequence of denying an intervener in the appeal the status of intervener before the General Court when the case has been referred back to it by the Court is that, in so far as that person is no longer in a position to submit an application to intervene before the General Court on the ground set out in paragraph 41 of this order, that person is deprived of any possibility of lodging observations before the General Court on the consequences to be drawn from a decision of the Court of Justice which has, however, affected that person’s interests.

107The second paragraph of Article 40 of the Statute of the Court of Justice of the European Union provides, moreover, that persons who can establish an interest may intervene in ‘cases’. It is apparent from Articles 55 and 56 of that statute, however, at least in the French-language version, that the concept of ‘ litige ’, in so far as it refers to the dispute between the parties, is distinct from that of ‘ instance ’, which concerns proceedings pending before the court seised of the dispute.

108Admittedly, it cannot be entirely ruled out that, in certain cases, in particular where the Court has given final judgment on certain aspects of a case before referring it back to the General Court, an intervener in the appeal no longer has an interest in the result of the case before the General Court. However, that circumstance cannot, in itself, justify an intervener in the appeal not being granted the status of intervener in a case which has been referred back to the General Court by the Court of Justice, since it is for the EU Courts to verify, in the course of the proceedings, that the interest that justified intervention persists (see, to that effect, judgment of 8 July 1999, Hüls v Commission, C‑199/92 P , EU:C:1999:358 , paragraphs 52 to 55 ).

109In the present case, as the appellants point out, their application to intervene before the Court of Justice was granted on the ground that they had an interest in the annulment ex tunc and erga omnes of the Commission decision by the General Court becoming final (see, to that effect, order of the President of the Court of 15 October 2019, Commission v Belgium and Magnetrol International, C‑337/19 P , not published, EU:C:2019:915 , paragraph 17 ), an annulment which is precisely the subject matter of the proceedings in Case T‑263/16 RENV in which the appellants claim to be able to intervene.

110In the second place, it should be noted that the solution adopted by the General Court in the contested decision makes the continuity of debate in a case and the scope of the effects of admitting a party to intervene before the Court of Justice dependent on the decision of the latter, taken pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, to give final judgment in the matter itself or, on the contrary, to refer the case back to the General Court.

111As the Advocate General observed in point 87 of his Opinion, where the Court of Justice gives final judgment in the dispute rather than referring the case back to the General Court, the intervener in the appeal may put forward its arguments before the EU Court called upon to rule on the action at first instance, whereas it will not have that possibility if the case is referred back to the General Court.

112In the third place, the solution adopted by the General Court appears all the more likely to affect the continuity of debate before the EU Courts since an intervener in the appeal should be able to participate again, in compliance with the conditions set out by Article 40 of the Statute of the Court of Justice of the European Union and by the relevant provisions of the Rules of Procedure of the Court of Justice, in the proceedings before the Court of Justice in the event of an appeal against a new decision of the General Court taken following the referral of the case back to it by the Court and would, as a consequence, lead to participation on an intermittent basis in the proceedings before the EU Courts in the context of one and the same dispute.

113In the fourth place, it must be noted that Article 184(2) of the Rules of Procedure of the Court of Justice states that, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.

114It follows, a contrario , from that provision that, where the appeal is well founded but the Court refers the case back to the General Court, the Court is not to make a decision as to the costs.

115In such a case, it is necessarily for the General Court to decide on the costs relating to the proceedings on the appeal, as indeed Article 219 of its Rules of Procedure expressly provides.

116Accordingly, denying an intervener in the appeal the status of intervener in a case which has been referred back to the General Court by the Court would mean, where forms of order have been submitted to the Court of Justice with a view to holding another party liable to pay the costs of that intervener or holding the latter liable to pay the costs of another party, either that those forms of order will not examined by an EU Court or that the General Court must rule on forms of order relating to a person who is not a party to the proceedings before it and who has therefore not been able to defend their claims in the course of those proceedings.

117That is precisely the situation in the present case.

118In the present case, after all, the Commission applied for costs relating to the appeal proceedings in Case C‑337/19 P to be awarded against the appellants.

119As the Court, in the judgment of 16 September 2021, Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), reserved the costs, the General Court is called upon, as the appellants argue, to rule, during the examination of Case T‑263/16 RENV, on whether they should be ordered to pay the costs relating to the appeal proceedings in Case C‑337/19 P.

120In the fifth place, the Commission’s arguments against granting an intervener in the appeal the status of intervener in a case which has been referred back to the General Court by the Court cannot succeed.

121Thus, first of all, although the grant of the status of intervener before the General Court to an intervener in the appeal before the Court of Justice is not governed by the rules provided for in Article 143 of the Rules of Procedure of the General Court, such intervention before the General Court cannot, however, be considered as being authorised without any substantive or formal requirement. After all, the person concerned must first have been admitted by the Court of Justice to intervene before it, under the conditions defined by Article 40 of the Statute of the Court of Justice of the European Union and by the relevant provisions of the Rules of Procedure of the Court of Justice.

122Next, the fact that that solution allows a party to lodge observations to which the other parties to the proceedings before the General Court could not respond is irrelevant, since, on the one hand, the Rules of Procedure of the General Court do not confer a general right to respond to observations lodged pursuant to Article 217 of those Rules of Procedure and, on the other hand, Article 217(3) of those Rules of Procedure nevertheless provides that supplementary statements of written observations may be lodged if the circumstances so justify.

123Last, with regard to the Commission’s argument that granting the status of intervener before the General Court to an intervener in the appeal, which is also the applicant in a case stayed by that court in the context of the designation of a ‘pilot’ case, would lead to the circumvention of that decision to stay, it should be noted that such a decision to stay cannot have the effect of preventing that applicant from being admitted to intervene before an EU Court, where that intervention must be authorised under Article 40 of the Statute of the Court of Justice of the European Union (see, to that effect, order of the President of the Court of 15 October 2019, Commission v Belgium and Magnetrol International, C‑337/19 P , not published, EU:C:2019:915 , paragraphs 14 and 18 and the case-law cited).

124In the light of the foregoing factors, it must be held that Article 40 of the Statute of the Court of Justice of the European Union, respect for the procedural rights guaranteed to interveners by the Rules of Procedure of the General Court and the principle of the proper administration of justice require, in the context of a coherent articulation of the procedures before the Court and the General Court, that an intervener in the appeal automatically enjoy the status of intervener before the General Court, where a case is referred back to that court following the annulment by the Court of Justice of a decision of the General Court.

125In the present case, it is common ground, first, that, by the order of the President of the Court of 15 October 2019, Commission v Belgium and Magnetrol International ( C‑337/19 P , not published, EU:C:2019:915 ), Soudal and Esko-Graphics were admitted to intervene before the Court in Case C‑337/19 P and that, second, by the judgment of 16 September 2021, Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), the Court set aside the judgment of the General Court of 14 February 2019, Belgium and Magnetrol International v Commission ( T‑131/16 and T‑263/16 , EU:T:2019:91 ), and referred back to the General Court Cases T‑136/16 and T‑263/16 for it to decide on certain of the pleas in law put forward in those cases.

126It follows that the General Court erred in law in denying the appellants the status of intervener before it in Case T‑263/16 RENV.

127Accordingly, the single plea in law put forward by the appellants must be upheld and the contested decision annulled.

The dispute before the General Court

128In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, where it has quashed the decision of the General Court, either 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.

129In the present case, it follows from paragraphs 124 to 126 of the present order that Soudal and Esko-Graphics automatically have the status of interveners before the General Court in this case and accordingly enjoy all the rights inherent in that status, in particular the right to lodge observations under Article 217(1) of the Rules of Procedure of the General Court.

130Therefore, it is for the General Court to adopt the procedural measures which flow from that status.

Costs

131In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.

132Under Article 138(1) of those rules, which applies to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

133Although the Commission has been unsuccessful, Soudal and Esko-Graphics have not applied for costs. Accordingly, each of the parties shall bear its own costs relating to the present appeal proceedings.

On those grounds, the Court (Grand Chamber) hereby orders:

1.The decision of the General Court of the European Union of 6 December 2021 to refuse to grant Soudal NV and Esko-Graphics BVBA the status of interveners in Case T‑263/16 RENV and to place on the file in that case the written observations lodged by the latter on the conclusions to be drawn from the judgment of the Court of Justice of 16 September 2021, Commission v Belgium and Magnetrol International ( C‑337/19 P , EU:C:2021:741 ), for the outcome of the proceedings in that case is annulled.

2.Soudal NV, Esko-Graphics BVBA and the European Commission shall bear their own costs.

Luxembourg, 1 August 2022.

A. Calot Escobar

Registrar

K. Lenaerts

President

( *1 ) Language of the case: English.