1

By its appeal, Cap Actions SNCM (‘Cap Actions’), a mutual investment fund through which the employees of Société nationale maritime Corse Méditerranée (SNCM) hold 9% of the capital of that company, seeks to have the order of the General Court of the European Union of 7 July 2015 in Case T‑1/15 SNCM v Commission, EU:T:2015:489 (‘the order under appeal’) set aside. That order rejected its application for leave to intervene in support of the form of order sought by the applicant at first instance in Case T‑1/15 seeking the annulment of Commission Decision 2014/882/EU of 20 November 2013 concerning the State aid 16237 (C 58/02) (ex N118/02) implemented by France in favour of SNCM (OJ 2014 L 357, p. 1, ‘the contested decision’).

2

Moreover, Cap Actions asks the Court to grant its application for leave to intervene.

3

The European Commission submitted its observations on the appeal on 7 September 2015.

4

Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person may intervene before the Courts of the European Union if such a person can establish an interest in the result of a case submitted to one of those Courts.

5

It is settled case-law that the concept of ‘an interest in the result of the case’, within the meaning of that provision, 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 put forward or the arguments raised. The term ‘the result of the case’ refers to the final decision sought, as it would be set out in the operative part of the judgment to be delivered (see the 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).

6

In that regard, it is necessary in particular to verify that the applicant for leave to intervene is directly affected by the contested act and that its interest in the result of the case is certain (see the 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 to the extent to which that result is likely to alter the legal position of the person seeking leave to intervene (see, to that effect, the 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 Mory and Others v Commission, C‑33/14 P, EU:C:2015:135, paragraphs 4 and 11).

7

By its appeal, Cap Actions criticises the General Court for misinterpreting the second paragraph of Article 40 of the Statute of the Court of Justice. Essentially, Cap Actions puts forward five grounds of appeal, alleging:

8

It is appropriate to examine the first ground of appeal first, then, together, the second and fifth grounds of appeal, which essentially raise the same question of law and, finally, the third and fourth grounds of appeal, respectively.

9

By its first ground of appeal, Cap Actions maintains that the General Court should have taken account, in the order under appeal, of the fact that, before the adoption of the contested decision, there was no re-opening of the formal investigation procedure provided for in Article 108(2) TFEU following the annulment by the General Court, in Corsica Ferries France v Commission, T‑565/08, EU:T:2012:415, of Decision 2009/611.

10

That disregard of that fact detracted from equality of access to proceedings concerning State aid between two applicants seeking leave to intervene, namely, first, Corsica Ferries France (‘Corsica Ferries’), seeking to intervene in Case T‑1/15 in support of the form of order sought by the Commission, and, second, Cap Actions, seeking to intervene in the same case in support of the form of order sought by SNCM. Cap Actions emphasises, in that regard, that, in paragraph 9 of the order in SNCM v Commission, T‑1/15, EU:T:2015:487, in allowing the intervention of Corsica Ferries, the General Court referred in particular to the fact that that company, which is a competitor of SNCM, had actively taken part in the administrative procedure before the Commission. Cap Actions contends that it was deprived of the opportunity to take the same course by the Commission’s refusal to re-open the formal investigation procedure, notwithstanding the applications to that effect submitted to it by the French Republic and SNCM following the annulment of Decision 2009/611.

11

In that regard, it should be borne in mind that the fact of allowing a party to raise for the first time before the Court of Justice a plea which it did not raise before the General Court, even though it had information enabling it to do so and that plea is not concerned with any of the grounds set out by the General Court in its decision, is tantamount to enabling it to bring before the Court of Justice, whose jurisdiction in appeals is limited, litigation of wider scope than that which the General Court had to examine (see, to that effect, judgments in Langnese-Iglo v Commission, C‑279/95 P, EU:C:1998:447, paragraph 55, and Pêra-Grave v OHIM, C‑294/14 P, EU:C:2015:459, paragraph 24).

12

Cap Actions’s arguments, summarised in paragraph 10 above, are based on the premiss that it would have participated in the formal investigation procedure if that procedure had been re-opened following the annulment by the General Court of Decision 2009/611. However, under Article 108(2) TFEU and Article 6(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [Article 108 TFEU] (OJ 1999 L 83, p. 1), it is the interested parties within the meaning of the abovementioned Article 108(2) who are entitled to submit observations in the context of the formal investigation procedure. Thus, by implication but necessarily, Cap Actions relies, before the Court of Justice, on the fact that it enjoyed that status in the context of the formal investigation procedure concerning the aid covered by the contested decision.

13

However, it must be pointed out that Cap Actions did not invoke, before the General Court, its purported status of interested party for the purposes of Article 108(2) TFEU. It follows that it has no standing to invoke that status before the Court of Justice in order to seek the annulment of the order under appeal.

14

It is true that Cap Actions complains, before the Court of Justice, of alleged unequal treatment, adversely affecting it, by reason of the fact that Corsica Ferries was allowed, by the order in SNCM v Commission, T‑1/15, EU:T:2015:487, to intervene in Case T‑1/15 in support of the form of order sought by the Commission, in particular on the ground that Corsica Ferries had actively participated in the formal investigation procedure concerning the aid covered by the contested decision.

15

However, the fact that the General Court allowed an applicant to intervene in a procedure, on the basis of the arguments which that party put forward before that court, cannot itself have any impact on the outcome of an application from a third party seeking leave to intervene in the same procedure, in so far as the latter’s circumstances were different and it invoked, before the General Court, arguments in support of its application different from those put forward by the person who was granted leave to intervene.

16

It follows that the first ground of appeal must be rejected as inadmissible.

17

In support of its second ground of appeal, which refers to paragraph 11 of the order under appeal, Cap Actions states that it represents the interests of SNCM employees who hold shares in that company, the value of which would be directly affected by the contested decision. Those employees, therefore, have a direct and existing interest, as shareholders, in the result of the case before the General Court. The intervention of Cap Actions would obviate a multiplicity of individual interventions and Cap Actions observes that it is for that reason that the Court adopts a broad interpretation of the right to intervene so far as associations are concerned, citing in support of that view the order of the President of the Court of Justice in National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66. According to Cap Actions, the General Court erred in law by holding, notwithstanding those circumstances, that it has no direct and existing interest in the result of the case in question.

18

By its fifth ground of appeal, which is concerned with paragraphs 14 to 16 of the order under appeal, Cap Actions casts doubt on the finding made by the General Court to the effect that it had not put forward any specific and substantive evidence such as to differentiate its interest from that of SNCM. Cap Actions emphasises that it has civil and legal personality distinct from SNCM and that its interest consists in defending the financial interests of the employee shareholders which it represents. It observes that the latter are directly witnessing depreciation of the value of their shares on account of the litigation pending before the Union judicature concerning the State aid paid to SNCM, and in particular Case T‑1/15, pending before the General Court, in which it seeks leave to intervene.

19

It is true that the financial interests of the shareholder employees, defended by Cap Actions, and likewise its own interests as a legal person, are likely to be significantly affected by the result of the case pending before the General Court, in which SNCM is a main party. In fact, the result of that case is liable to have a considerable impact on the financial situation of SNCM and, therefore, on the value of the shares held through Cap Actions.

20

However, such an adverse effect, even if significant, on the economic and financial interests of the shareholders of a company which is one of the main parties to proceedings pending before the General Court, and the interests of the investment fund through which certain investors hold their shares in that company, cannot be regarded as a direct, adverse effect on the interests of those shareholders and of that fund, within the meaning of the case-law cited in paragraphs 5 and 6 above, in so far as it does not alter their legal circumstances. In fact, those interests merge with those of the company itself which is a main party to the proceedings in question and are only indirectly affected by the result of the case, on account of the consequences flowing from that result vis-à-vis that main party (order of the President of the Court of Justice in AITEC and Others v Commission, C‑97/92, C‑105/92 and C‑106/92, EU:C:1993:954, paragraph 15).

21

It follows that the General Court did not err in law either in paragraph 11 of the order under appeal, or in paragraphs 14 to 16 thereof, by holding that the interests invoked by Cap Actions before it are not directly affected by the result of the case before it and do not therefore meet the requirements of the second paragraph of Article 40 of the Statute of the Court of Justice.

22

The second and fifth grounds of appeal must therefore be rejected.

23

By its third ground of appeal, which is concerned with paragraph 12 of the order under appeal, Cap Actions argues that the General Court made an error of assessment by holding that it had not demonstrated that the judicial reorganisation procedure in progress would be suspended in the event of annulment of the contested decision. Cap Actions emphasises that the outcome of that reorganisation procedure depends upon the outcome of the litigation pending before the Union judicature concerning the State aid paid to SNCM, and particularly Case T‑1/15, pending before the General Court. Those proceedings are the reason for which the main shareholder of SNCM, namely the public undertaking Transdev, initiated the judicial reorganisation procedure. According to Cap Actions, in the absence of those proceedings, SNCM’s deficit would have been absorbed in a reorganisation of the undertaking.

24

In that regard, it is clear from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the General Court has established or assessed the facts, the Court of Justice has jurisdiction under the abovementioned Article 256 to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, Bavaria v Commission, C‑445/11 P, EU:C:2012:828, paragraph 23 and the case-law cited).

25

In the present case, the General Court held, in paragraph 12 of the order under appeal, that SNCM is involved in a number of cases pending before the Court and that, accordingly, the sums at issue in the contested decision are merely a part of the sums which will have to be reimbursed, at that stage, by the beneficiary of the aid. It is on the basis of those findings that the General Court concluded that it had not been established that the judicial reorganisation procedure pending before the national courts would be suspended in the event of annulment of the contested decision.

26

Before the Court of Justice, Cap Actions merely maintains, in that regard, that, according to the evidence which it produced to the General Court, the principal shareholder, Transdev, decided to initiate the judicial reorganisation procedure before the national courts on account of the litigation concerning State aid pending before the Union judicature. Those arguments cannot establish that the factual findings upon which paragraph 12 of the order under appeal is based are substantively inaccurate.

27

Therefore, it must be held that, by contesting the assessments of fact made by the General Court in paragraph 12 of the order under appeal, without establishing that any substantial inaccuracy of those assessments is apparent from the documents in the file, Cap Actions is raising inadmissible arguments.

28

It follows from the foregoing that the third ground of appeal must be rejected.

29

By its fourth ground of appeal, which relates to paragraph 13 of the order under appeal, Cap Actions maintains that the General Court erred in law by assimilating the interests of the main shareholder, which is Transdev and not the French State as such, to those of the employee shareholders, represented by Cap Actions. Cap Actions contends that Transdev wishes to withdraw from maritime transport, whereas the employee shareholders seek to safeguard both their financial interests and their employment. Cap Actions thus has a specific interest in the result of the case pending before the General Court, which is different from that of the main shareholder.

30

In that regard, as has been held in paragraph 20 above, the economic and financial interests of the shareholders of a company merge, in principle, with those of the company itself which is a principal party to litigation. Admittedly, the shareholders whose interests are represented by Cap Actions in this case are also employees of SNCM, but it must be emphasised that Cap Actions represents their interests as shareholders, as it expressly asserts in its appeal.

31

The General Court was right to hold, in paragraph 13 of the order under appeal, that, by way of exception to the rule referred to in the foregoing paragraph of the present order, the fact that a minority shareholder of a company has interests that diverge from those of the main shareholder of the company and therefore, possibly, from those of the company itself, may, in certain cases, confer upon that minority shareholder an interest in the result of the case in which the company in question is one of the main parties, distinct from the latter’s interest. In order to invoke that exception, it is nevertheless necessary for the minority shareholder to put forward specific evidence establishing the existence of that divergence of interests in relation to the result of the proceedings in question, having regard to the purpose pursued by the latter.

32

In the present case, however, the General Court held in paragraph 13 of the order under appeal that Cap Actions had not produced any specific evidence such as to establish the existence of any such divergence. In accordance with the case-law referred to in paragraph 24 of the present order, Cap Actions is putting forward arguments that are inadmissible by challenging that factual assessment without establishing that any substantive inaccuracy thereof derives from documents in the file.

33

It follows that the fourth ground of appeal must be rejected as inadmissible.

34

It follows from all the foregoing that, since none of the grounds of appeal put forward by Cap Actions has been upheld, the appeal must be dismissed in its entirety.

35

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where an 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 and Cap Actions has been unsuccessful, the latter 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 of Justice hereby: