ORDER OF THE VICE-PRESIDENT OF THE COURT

11 January 2024 (*)

(Appeal – Intervention – Access to documents – Regulation (EC) No 1049/2001 – Correspondence between the President of the European Commission and the chief executive officer of an undertaking – Refusal to grant access – Action for annulment – Interest in the result of the case – Association party to proceedings before national courts)

In Case C‑634/23 P(I),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 20 October 2023,

BonSens.org, established in Entzheim (France), represented by B. Berne and D. Protat, avocats,

appellant,

the other parties to the proceedings being:

Matina Stevi, residing in Brussels (Belgium),

The New York Times Company, established in New York (United States), represented by B. Kloostra, advocate,

applicants at first instance,

European Commission, represented by M. Burón Pérez, A. Spina and P. Stancanelli, acting as Agents,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By its appeal, BonSens.org seeks to have set aside the order of the President of the Ninth Chamber of the General Court of the European Union of 5 October 2023, Stevi and The New York Times v Commission (T‑36/23, EU:T:2023:608; ‘the order under appeal’), by which he dismissed its application to intervene in support of the form of order sought by Ms Matina Stevi and The New York Times Company, the applicants at first instance in Case T‑36/23.

 Background to the dispute

2        By an email of 11 May 2022, Ms Stevi and The New York Times Company submitted a request to the European Commission, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), for access to all of the text messages (SMS) exchanged between the President of the Commission and the Chief Executive Officer of the pharmaceutical company Pfizer between 1 January 2021 and 11 May 2022.

3        By Decision C(2022) 8371 final of 15 November 2022, the Commission stated that, given that it did not hold any documents corresponding to the description contained in Ms Stevi’s and The New York Times Company’s request, it was not in a position to fulfil that request (‘the decision at issue’).

 The procedure before the General Court and the order under appeal

4        By application lodged at the Registry of the General Court on 25 January 2023, Ms Stevi and The New York Times Company brought an action for annulment of the decision at issue.

5        By document lodged at the Registry of the General Court on 5 May 2023, BonSens.org sought leave to intervene in Case T‑36/23 in support of the form of order sought by Ms Stevi and The New York Times Company.

6        By the order under appeal, the President of the Ninth Chamber of the General Court dismissed that application to intervene on the ground that BonSens.org had not established that it had a direct interest in the result of the case before the General Court.

 Forms of order sought

7        By its appeal, BonSens.org claims that the Court should:

–        set aside the order under appeal and

–        grant it leave to intervene in Case T‑36/23 in support of the form of order sought by Ms Stevi and The New York Times Company.

8        The Commission contends that the Court should:

–        dismiss the appeal and

–        order BonSens.org to pay the costs.

 The appeal

9        In support of its appeal, BonSens.org raises three grounds of appeal, alleging, first, distortion of evidence, secondly, infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, thirdly, infringement of Article 42 of the Charter.

 The second ground of appeal

 Arguments

10      By its second ground of appeal, which it is appropriate to examine in the first place, BonSens.org argues, first of all, that the President of the Ninth Chamber of the General Court failed to explain how its interest in the result of the case pending at first instance was indirect and thus made an arbitrary assessment in that regard.

11      Next, BonSens.org submits that it was not given a reasonable opportunity to present its case, since the President of the Ninth Chamber of the General Court referred to unpublished decisions without giving it the opportunity to comment on those decisions.

12      Lastly, BonSens.org alleges that it was discriminated against, since the Commission did not plead that Ms Stevi and The New York Times Company had no legal interest in bringing proceedings.

13      The Commission contends that the second ground of appeal must be rejected as being unfounded.

 Assessment

14      In the first place, in so far as the second ground of appeal is to be understood as including an argument alleging that the order under appeal is inadequately reasoned, it should be borne in mind, first, that, in the context of an appeal, the purpose of the Court of Justice’s review is, inter alia, to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the ground of appeal alleging that the General Court failed to respond to arguments relied on at first instance amounts, essentially, to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (order of the Vice-President of the Court of Justice of 12 July 2022, Cipla Europe v EUIPO and Glaxo Group, C‑245/22 P(I), EU:C:2022:549, paragraph 28).

15      That 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 the 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 (order of the Vice-President of the Court of Justice of 12 July 2022, Cipla Europe v EUIPO and Glaxo Group, C‑245/22 P(I), EU:C:2022:549, paragraph 29).

16      In the present case, the President of the Ninth Chamber of the General Court noted, in paragraph 12 of the order under appeal, that the party applying for leave to intervene in a case must establish that it has a direct interest in the result of that case.

17      After finding, in paragraph 17 of that order, that BonSens.org relied on the fact that its situation was comparable to that of Ms Stevi and The New York Times Company, the President of the Ninth Chamber of the General Court made clear, in paragraph 18 of that order, that relying on the similarity between the situation of the party applying for leave to intervene in a case and that of a party to that case confers only any indirect interest in the result of that case.

18      The President of the Ninth Chamber of the General Court inferred from this, in paragraph 21 of that order, that the circumstance that the decision at issue formed part of the context which gave rise to the national legal proceedings initiated by BonSens.org was not of such a nature as to confer on it a direct interest in the result of Case T‑36/23.

19      Having regard to that information, it appears that the reasoning in paragraphs 12 to 21 of the order under appeal sets out the criterion which, according to the President of the Ninth Chamber of the General Court, must be applied in order to assess the merits of the application to intervene brought by BonSens.org and the reasoning which led him to take the view that that criterion was not fulfilled. Accordingly, that reasoning is sufficient to enable BonSens.org to understand the reasons why the President of the Ninth Chamber of the General Court found that it had not established the existence of a direct interest in the result of that case and to enable the Court of Justice to exercise its power of review in that regard.

20      Consequently, the argument alleging that the order under appeal is inadequately reasoned must be rejected as being unfounded.

21      In the second place, although BonSens.org argues that it was not given a reasonable opportunity to present its case, it merely submits in that respect that the President of the Ninth Chamber of the General Court referred to unpublished decisions without giving it the opportunity to comment on those decisions.

22      Since it follows from Article 143(2)(f) of the Rules of Procedure of the General Court that the application to intervene is to contain a statement of the circumstances establishing the right to intervene, where the application is submitted pursuant to the second or third paragraph of Article 40 of the Statute of the Court of Justice of the European Union, it was for BonSens.org to submit in its application to intervene all the material and evidence serving to establish its interest in intervening (see, to that effect, order of the Vice-President of the Court of Justice of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), EU:C:2016:476, paragraphs 19 and 20).

23      In view of that requirement, BonSens.org cannot validly criticise the President of the Ninth Chamber of the General Court, who in no way relied on evidence which has not been submitted to the dispute between the parties, for not affording BonSens.org the opportunity to comment on the information to which he intended to refer in the order under appeal in order to assess whether the interest in intervening claimed in the application to intervene exists.

24      In the third place, as regards the argument alleging discrimination, it should, in any event, be observed that Ms Stevi and The New York Times Company are not, for the purpose of applying Article 40 of the Statute of the Court of Justice of the European Union, in a situation objectively comparable to that of BonSens.org, since Ms Stevi and The New York Times Company have the status of an applicant in Case T‑36/23 and, accordingly, they are not subject to the requirements specific to the parties applying for leave to intervene in that case.

25      In the light of all the foregoing, the second ground of appeal must be rejected as being unfounded.

 The first ground of appeal

 Arguments

26      By its first ground of appeal, BonSens.org argues that the President of the Ninth Chamber of the General Court has distorted the evidence.

27      BonSens.org sets out in detail the conduct of legal proceedings it initiated in France and in the United States in order to challenge the contracts concluded by the Commission for the purpose of acquiring COVID-19 vaccines.

28      BonSens.org asserts that it follows that it has an obvious direct and existing interest in intervening in Case T‑36/23. Therefore, it claims that the President of the Ninth Chamber of the General Court distorted the evidence which had been submitted to him by holding, in paragraph 21 of the order under appeal, that the circumstance that the decision at issue formed part of the context which gave rise to those legal proceedings was not of such a nature as to establish such an interest.

29      The Commission contends that the first ground of appeal must be rejected as being inadmissible or, in any event, as being unfounded.

 Assessment

30      According to the settled case-law of the Court of Justice, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals are limited to questions of law, to the exclusion of any assessment of the facts. The General Court therefore has sole jurisdiction to assess the evidence. The assessment of that evidence does not therefore constitute, except in the case of its distortion, a question of law which is subject, as such, to review by the Court of Justice in the context of an appeal (order of the Vice-President of the Court of Justice of 5 June 2023, Euranimi v Commission, C‑140/23 P(I), EU:C:2023:446, paragraph 41 and the case-law cited).

31      There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without its being necessary to undertake a fresh assessment of the facts and the evidence. In that regard, where an appellant alleges distortion of the evidence by the General Court, that person must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion (order of the Vice-President of the Court of Justice of 5 June 2023, Euranimi v Commission, C‑140/23 P(I), EU:C:2023:446, paragraph 42 and the case-law cited).

32      In the present case, only paragraph 21 of the order under appeal is referred to in the arguments relied on by BonSens.org in support of its second ground of appeal.

33      However, paragraph 21 contains no finding of fact and is limited to legally classifying the nature of the interest in the result of Case T‑36/23 that BonSens.org could possibly draw from its capacity as an applicant in certain national legal proceedings.

34      It follows that the arguments relied on in support of the second ground of appeal in no way seek to call into question the findings of fact carried out by the President of the Ninth Chamber of the General Court in the order under appeal and that those arguments are therefore not of such a nature as to establish that those findings are distorted.

35      Moreover, in so far as the second ground of appeal must be understood as seeking, in reality, to complain of errors of law or legal classification which the President of the Ninth Chamber of the General Court allegedly made, it should be emphasised that the arguments relied on by BonSens.org do not establish that paragraph 21 of the order under appeal is vitiated by such errors.

36      The concept of ‘interest in the result of the case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must be defined with regard to the subject matter of the case and be understood as being a direct and existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law or the arguments raised (order of the Vice-President of the Court of Justice of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 35 and the case-law cited).

37      In that regard, as the President of the Ninth Chamber of the General Court observed in paragraphs 13 and 18 of the order under appeal, a distinction must be drawn between applicants for leave to intervene who have a direct interest in the outcome of the submissions made by the parties in the context of the dispute in which they wish to intervene and those who have only an indirect interest in the resolution of the dispute by reason of similarities between their situation and that of one of the parties (order of the Vice-President of the Court of Justice of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 37 and the case-law cited).

38      Accordingly, it cannot be held that the President of the Ninth Chamber of the General Court made an error of law or legal classification by taking the view that the circumstance that the situation of Ms Stevi and The New York Times Company had a certain number of points in common with that of BonSens.org – on account of the fact that that company had initiated national legal proceedings relating to the acquisition of COVID-19 vaccines by the Commission – was not, in any event, of such a nature as to confer on BonSens.org a direct interest in the result of Case T‑36/23.

39      Consequently, the first ground of appeal must be rejected as being unfounded.

 The third ground of appeal

 Arguments

40      By its third ground of appeal, BonSens.org argues that the order under appeal infringed the right to transparency guaranteed by Article 42 of the Charter.

41      In that respect, BonSens.org relies, inter alia, on various reports which it claims describe a lack of transparency in the negotiations conducted by the Commission to acquire the COVID-19 vaccines. It argues that the SMS exchanges to which Case T‑36/23 relates are public by nature and the Court cannot therefore preclude their disclosure.

42      The Commission contends that the third ground of appeal must be rejected as being inadmissible and ineffective or, in any event, unfounded.

 Assessment

43      Article 42 of the Charter states that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the European Parliament, the Council of the European Union and the Commission.

44      Although it cannot be ruled out, in the examination of the appeal, that that Article 42 must be taken into consideration in order to determine whether BonsSens.org must be granted access to certain documents in the present case, the fact remains that the proceedings relating to the intervention cannot, in any event, lead to BonSens.org’s being deprived of the right of access to Commission documents, since the sole aim of those proceedings is to determine whether it must be granted leave to intervene in Case T‑36/23.

45      Therefore, it cannot be held that, by dismissing the application to intervene, the President of the Ninth Chamber of the General Court infringed Article 42 of the Charter.

46      Accordingly, the third ground of appeal must be rejected as being unfounded and, consequently, the appeal must be dismissed in its entirety.

 Costs

47      In accordance with Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.

48      Under Article 138(1) of those rules of procedure, applicable to the procedure on appeal by reason 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.

49      Since the Commission has applied for costs to be awarded against BonSens.org and the latter has been unsuccessful, BonSens.org must be ordered to bear its own costs relating to the appeal proceedings 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.      BonSens.org shall bear its own costs relating to the appeal proceedings and pay those incurred by the European Commission.

Luxembourg, 11 January 2024.

*      Language of the case: English.