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Corte di giustizia UEsentenza

Corte di giustizia UE n. 2015/2020

ECLI:EU:T:2020:117
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

23 March 2020 ( * ) (Action for annulment — [OSCURATO:PERSONA] aid — Complaint — Measure not open to challenge — Inadmissibility)

[OSCURATO:PERSONA] T‑280/19,

[OSCURATO:PERSONA] LLP,

established in London ([OSCURATO:PERSONA]), represented by M. Struys, lawyer, applicant, v

[OSCURATO:PERSONA],

represented by K. Blanck, A. Bouchagiar and K.‑Ph.

Wojcik, acting as Agents, defendant, APPLICATION under [OSCURATO:PERSONA] 263 TFEU for annulment of the [OSCURATO:PERSONA] decision rejecting a complaint relating to unlawful [OSCURATO:PERSONA] aid granted to [OSCURATO:PERSONA] SA through the acquisition of [OSCURATO:PERSONA] (SA.53105), allegedly contained in the letter of 8 March 2019 from the [OSCURATO:PERSONA][OSCURATO:PERSONA] for Competition and in the public statement of 20 March 2019 of the Commissioner responsible for competition,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of M.J. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], D. Gratsias and B. Berke, Judges, [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute 1 In connection with the restructuring of the banking sector in [OSCURATO:PERSONA], [OSCURATO:PERSONA] SA and [OSCURATO:PERSONA] SA (‘[OSCURATO:PERSONA]’) received [OSCURATO:PERSONA] aid through the [OSCURATO:PERSONA]. 2 By its decisions of 26 and 29 [OSCURATO:PERSONA] 2015, adopted in [OSCURATO:PERSONA] aid control procedures SA.43363 and SA.43364, the [OSCURATO:PERSONA] took the view that the aid granted by the [OSCURATO:PERSONA] was compatible with the internal market, in the light of, inter alia, the commitments given by the [OSCURATO:PERSONA] which formed an integral part of the restructuring plans applicable to [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] respectively. 3 According to the restructuring plan for [OSCURATO:PERSONA], that bank was not, in principle, allowed to acquire stakes.

According to the restructuring plan for [OSCURATO:PERSONA], that bank was required to transfer foreign assets, including its [OSCURATO:PERSONA] subsidiary, [OSCURATO:PERSONA] AD.

Those commitments were applicable until 31 December 2018. 4 [OSCURATO:PERSONA] 2017, [OSCURATO:PERSONA] launched a procedure for the sale of its [OSCURATO:PERSONA] subsidiary, [OSCURATO:PERSONA]. 5 The applicant, [OSCURATO:PERSONA] LLP, participated, alongside other bidders, in that procedure and submitted an offer to purchase [OSCURATO:PERSONA]. 6 On 24 October 2018, [OSCURATO:PERSONA] accepted [OSCURATO:PERSONA] offer as the best offer. 7 On 7 [OSCURATO:PERSONA] 2018, [OSCURATO:PERSONA] acquisition of [OSCURATO:PERSONA] was publicly announced. 8 The final closing of the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] was planned for the beginning of 2019, that acquisition being subject to approval by the Balgarska narodna banka ([OSCURATO:PERSONA]) and the Komisiya za zashtita na konkurentsiyata ([OSCURATO:PERSONA] competition authority). 9 On 17 January 2019, the applicant lodged a complaint with the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 24 of [OSCURATO:PERSONA] (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of [OSCURATO:PERSONA] 108 TFEU (OJ 2015 L 248, p. 9) (‘the complaint of 17 January 2019’).

In that complaint, the applicant set out, in essence, two reasons why it took the view that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] was unlawful.

In the first place, it claimed, that acquisition is incompatible with the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA].

In the second place, it claimed, that acquisition involves the grant, by the [OSCURATO:PERSONA], of [OSCURATO:PERSONA] aid in favour of [OSCURATO:PERSONA]. 10 By letter of 8 March 2019 (‘the letter of 8 March 2019’), the [OSCURATO:PERSONA][OSCURATO:PERSONA] (DG) for Competition replied to a letter from the [OSCURATO:PERSONA] of 19 February 2019 concerning the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA].

In its letter, the [OSCURATO:PERSONA] replied that, in accordance with its practice relating to the monitoring of [OSCURATO:PERSONA] aid commitments, the final closing date of an acquisition was the relevant date to be taken into consideration when assessing the compatibility of that acquisition with commitments given.

In addition, the [OSCURATO:PERSONA] claimed that, in so far as the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ended on 31 December 2018 and the final closing date of the acquisition of [OSCURATO:PERSONA] was planned for the first quarter of 2019, there were no further applicable [OSCURATO:PERSONA] aid commitments at that date which prevented [OSCURATO:PERSONA] from acquiring [OSCURATO:PERSONA]. 11 On 20 March 2019, in response to a question raised by a [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] concerning the proposed acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA], the Commissioner responsible for competition made the following public statement (‘the public statement of 20 March 2019’): ‘To find aid to ailing banks compatible with the internal market, the [OSCURATO:PERSONA] is, amongst other things, seeking a commitment from the bank and the [OSCURATO:PERSONA] that the former will not make acquisitions during its restructuring period, thereby preventing the use of the aid received in mergers and acquisitions.

However, once this “acquisition ban” commitment has expired, on 31 December 2018 in this case, the [OSCURATO:PERSONA] has no longer any competence under [OSCURATO:PERSONA] aid rules to intervene in acquisitions made by the bank. [OSCURATO:PERSONA] announced acquisition of [OSCURATO:PERSONA], the closing date of the sale is expected to take place during the 1 st quarter of 2019. [OSCURATO:PERSONA] takes that closing date into account to conclude that the transaction no longer falls under [OSCURATO:PERSONA] acquisition ban.

The closing date is seen as the relevant date, since the binding offer or [OSCURATO:PERSONA] can contain conditions (such as regulatory approvals) that prevent the sale from closing in case they are not fulfilled. [OSCURATO:PERSONA] is in regular contact with the Greek authorities and receives updates on the bank’s compliance with the Commitments through the appointed [OSCURATO:PERSONA].

Besides, the [OSCURATO:PERSONA] has received a complaint from an unsuccessful bidder for [OSCURATO:PERSONA] and deals with this complaint in line with its standard procedures.’ 12 By letter of 19 April 2019, the applicant, pursuant to [OSCURATO:PERSONA] 265 TFEU, requested the [OSCURATO:PERSONA] to issue a decision on the complaint of 17 January 2019 within two months of the date of that letter and informed it that, if this were not done, it would bring an action for failure to act. 13 On the same day, the applicant sent a second letter to the [OSCURATO:PERSONA].

In that letter, the applicant requested the [OSCURATO:PERSONA] to provide it with a copy of the letter of 8 March 2019.

The applicant claimed that the letter of 8 March 2019 amounted to a decision partially or wholly rejecting its complaint of 17 January 2019, in so far as the [OSCURATO:PERSONA] took the view that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] did not breach the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA].

The applicant claims that it had been misled by the [OSCURATO:PERSONA] inasmuch as the latter had informed the applicant on 16 April 2019 that no decision had yet been made. 14 By email of 25 April 2019, the [OSCURATO:PERSONA] DG for Competition informed the applicant that its request for access to the letter of 8 March 2019 would be treated in accordance with [OSCURATO:PERSONA] (EC) No 1049/2001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 30 May 2001 regarding public access to [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] documents (OJ 2001 L 145, p. 43). 15 The applicant brought the present action on 30 April 2019.

Facts arising after the action had been brought 16 On 2 May 2019, the [OSCURATO:PERSONA] DG for Competition sent the applicant a first letter of preliminary assessment of the complaint of 17 January 2019.

In that letter, the [OSCURATO:PERSONA] stated that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] did not breach the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA].

Likewise, that acquisition did not involve the grant of [OSCURATO:PERSONA] aid in favour of [OSCURATO:PERSONA].

Moreover, the [OSCURATO:PERSONA] stated that that preliminary assessment did not express its definitive position on the complaint of 17 January 2019, but only a view of the services of the [OSCURATO:PERSONA] DG for Competition, on the basis of a prima facie examination under [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589 and pending any additional comments from the applicant. 17 On 23 May 2019, the [OSCURATO:PERSONA] refused the applicant access to a copy of the letter of 8 March 2019 on the ground that the document was covered by the exceptions provided for in [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 1049/2001. 18 On 1 June 2019, the applicant replied to the first letter of preliminary assessment on the complaint of 17 January 2019. 19 On 14 June 2019, [OSCURATO:PERSONA] announced, by means of a press release, that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] had been completed. 20 On 19 June 2019, the [OSCURATO:PERSONA] DG for Competition sent the applicant a second letter of preliminary assessment of the complaint of 17 January 2019.

In that letter, the [OSCURATO:PERSONA] stated that the applicant was not an interested party within the meaning of [OSCURATO:PERSONA] 1(h) of [OSCURATO:PERSONA] 2015/1589 as regards implementation of the [OSCURATO:PERSONA] decisions on the approval of [OSCURATO:PERSONA] aid in favour of [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. [OSCURATO:PERSONA] also pointed out that that preliminary assessment did not express its definitive position on the complaint of 17 January 2019, but only a view of the services of the DG for Competition on the basis of a new prima facie examination. 21 On 18 July 2019, the applicant replied to that second letter of preliminary assessment.

Procedure and forms of order sought 22 By application lodged at the [OSCURATO:PERSONA] on 30 April 2019, the applicant brought the present action. 23 By separate document lodged at the [OSCURATO:PERSONA] on the same day, the applicant requested that the present action be decided under an expedited procedure, in accordance with [OSCURATO:PERSONA] 152 of the Rules of Procedure of the [OSCURATO:PERSONA].

On 20 May 2019, the [OSCURATO:PERSONA] lodged its observations on that request.

By decision of 24 May 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) refused the application for an expedited procedure. 24 By separate document lodged at the [OSCURATO:PERSONA] on 13 May 2019, the applicant submitted an application for interim measures seeking first, suspension of the operation of a [OSCURATO:PERSONA] decision rejecting a complaint relating to allegedly unlawful [OSCURATO:PERSONA] aid granted to [OSCURATO:PERSONA] through the acquisition of [OSCURATO:PERSONA] (SA.53105) and, second, the grant of other interim measures. 25 By separate document lodged at the [OSCURATO:PERSONA] on 15 July 2019, the [OSCURATO:PERSONA] raised a plea of inadmissibility under [OSCURATO:PERSONA] 130 of the Rules of Procedure.

The applicant submitted its observations on that plea on 6 September 2019. 26 By document lodged at the [OSCURATO:PERSONA] on 15 August 2019, the [OSCURATO:PERSONA] sought leave to intervene in the present proceedings in support of the form of order sought by the [OSCURATO:PERSONA]. 27 By order of 12 July 2019,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑280/19 R, not published, EU:T:2019:545), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] dismissed the application for interim measures and ordered that the costs be reserved. 28 Following a change in the composition of the Chambers of the [OSCURATO:PERSONA], pursuant to [OSCURATO:PERSONA] 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the [OSCURATO:PERSONA], to which the present case was accordingly allocated. 29 By order of 23 October 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) ordered the [OSCURATO:PERSONA] to produce the letter of 8 March 2019. [OSCURATO:PERSONA] complied with that demand within the prescribed period. 30 By order of 25 [OSCURATO:PERSONA] 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), after weighing up the matters referred to in [OSCURATO:PERSONA] 103(2) of the Rules of Procedure, ordered the [OSCURATO:PERSONA] to produce a non-confidential version of the letter of 8 March 2019 in order for it to be communicated to the applicant. 31 [OSCURATO:PERSONA] complied with that request within the prescribed period and the document which it produced was sent to the applicant. 32 The applicant set out its observations on that document on 20 December 2019. 33 In the application, the applicant claims that the [OSCURATO:PERSONA] should: – annul the [OSCURATO:PERSONA] decision rejecting the complaint of 17 January 2019; – order the [OSCURATO:PERSONA] to pay the costs. 34 In its plea of inadmissibility, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the action as inadmissible; – order the applicant to pay the costs. 35 In its observations on the plea of inadmissibility, the applicant claims that the [OSCURATO:PERSONA] should: – reject the plea of inadmissibility; – order the [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] of the action 36 [OSCURATO:PERSONA] 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the [OSCURATO:PERSONA] may give a ruling on inadmissibility or lack of competence without going to the substance of the case.

In the present case, as the [OSCURATO:PERSONA] has applied for a decision on inadmissibility, the [OSCURATO:PERSONA], finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking any further steps in the proceedings. 37 In support of the plea of inadmissibility, the [OSCURATO:PERSONA] raises two grounds of inadmissibility alleging, first, that there is no measure against which an action for annulment can be brought under [OSCURATO:PERSONA] 263 TFEU and, second, that the applicant does not have the status of ‘an interested party’ within the meaning of [OSCURATO:PERSONA] 24 of [OSCURATO:PERSONA] 2015/1589. 38 In the context of the first ground of inadmissibility, the [OSCURATO:PERSONA] claims, in essence, that the present action relates to a fictitious or non-existent act.

The letter of 8 March 2019 and the public statement of 20 March 2019 (together, ‘the contested measures’), which, according to the applicant, represent the decision allegedly adopted by the [OSCURATO:PERSONA], do not relate to the [OSCURATO:PERSONA] position on the complaint of 17 January 2019.

On the contrary, the contested measures were taken in connection with different proceedings that have no effect on the examination of that complaint, which is still ongoing. 39 In its observations on the plea of inadmissibility, the applicant submits that, despite the lack of a formal [OSCURATO:PERSONA] decision, the contested measures reveal a final [OSCURATO:PERSONA] decision partially rejecting the complaint of 17 January 2019 to the extent that that complaint was based on the breach of commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA].

It is evident from the contested measures that the [OSCURATO:PERSONA] took the view that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] was not incompatible with those commitments, on the ground that the relevant date for compliance with those commitments was the final closing date of that acquisition. 40 Additionally, in the observations on the non-confidential version of the letter of 8 March 2019, the applicant submits that that document confirms the existence of a [OSCURATO:PERSONA] decision rejecting its complaint of 17 January 2019.

That letter, the applicant argues, contains no ‘preliminary position’ of the [OSCURATO:PERSONA] and does not suggest that the complaints procedure is still ongoing.

By contrast, that letter establishes that the [OSCURATO:PERSONA] had already rejected the complaint of 17 January 2019, at least in so far as that complaint was based on the breach of commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA], since the [OSCURATO:PERSONA] maintains that, at the relevant date, there were no more applicable [OSCURATO:PERSONA] aid commitments which prevented [OSCURATO:PERSONA] from acquiring [OSCURATO:PERSONA]. 41 Furthermore, in the observations on the non-confidential version of the letter of 8 March 2019, the applicant claims that that letter confirms that the [OSCURATO:PERSONA] defence strategy breaches the requirements of a fair trial and good administration and is intended to deprive the applicant of its right to an effective legal remedy, in breach of its rights of defence. 42 According to consistent case-law, any provisions adopted by the institutions of the [OSCURATO:PERSONA], whatever their form, which are intended to have binding legal effects are regarded as actionable measures, within the meaning of [OSCURATO:PERSONA] 263 TFEU.

Those binding legal effects of a measure must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgments of 13 February 2014, Hungary v

[OSCURATO:PERSONA]

, C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited, and of 25 October 2017, Romania v

[OSCURATO:PERSONA]

, C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48). 43 Furthermore, it is, in principle, those measures which definitively determine the position of the [OSCURATO:PERSONA] upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, that constitute acts open to challenge for the purposes of [OSCURATO:PERSONA] 263 TFEU, and not intermediate measures the purpose of which is to prepare for the final decision, which do not have those effects (see judgment of 18 [OSCURATO:PERSONA] 2010,

NDSHT

v

[OSCURATO:PERSONA]

, C‑322/09 P, EU:C:2010:701, paragraph 48 and the case-law cited). 44 In the present case, since the form of the contested measures is not decisive, it is necessary to examine the substance of those measures in order to assess whether they produce legally binding effects, in particular in respect of the applicant, or whether the existence of such a legally binding measure must be inferred, taking into account objective criteria, such as the content of those measures, their context and the intention of those who drafted them. 45 In this respect, first, it must be held that the letter of 8 March 2019 was sent by the [OSCURATO:PERSONA] DG for Competition to the [OSCURATO:PERSONA] in reply to a question which it had put to the [OSCURATO:PERSONA].

In that letter, it is stated, inter alia, that the [OSCURATO:PERSONA] practice relating to the monitoring of [OSCURATO:PERSONA] aid commitments is to take into account the final closing date of an acquisition as the relevant date for examining the compatibility of the acquisitions with the commitments given.

In addition, the [OSCURATO:PERSONA] stated that, in so far as the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ended on 31 December 2018 and the final closing date of the acquisition of [OSCURATO:PERSONA] was planned for the first quarter of 2019, there were no further applicable [OSCURATO:PERSONA] aid commitments at that date which prevented [OSCURATO:PERSONA] from acquiring [OSCURATO:PERSONA] (see paragraph 10 above). 46 [OSCURATO:PERSONA], it must be held that the public statement of 20 March 2019 is a reply of the Commissioner responsible for competition to a question raised by a [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] concerning the proposed acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA].

In that statement, it is asserted that the [OSCURATO:PERSONA] takes into account the closing date of [OSCURATO:PERSONA] announced acquisition of [OSCURATO:PERSONA] as the relevant date to conclude that the transaction no longer comes under [OSCURATO:PERSONA] acquisition ban.

Moreover, reference is made to ‘a complaint from an unsuccessful bidder’, stating that that complaint is ongoing (see paragraph 11 above). 47 As regards the context of the contested measures, it must be noted from the outset that they were not addressed to the applicant.

The letter of 8 March 2019 contains a reply from the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA], while the public statement of 20 March 2019 corresponds to a reply of the Commissioner responsible for competition to a question raised by a [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 48 Furthermore, the contested measures were taken outside the scope of the administrative procedure relating to the complaint of 17 January 2019.

By the letter of 8 March 2019, the [OSCURATO:PERSONA] seeks to provide a response to the [OSCURATO:PERSONA] concerning its practice relating to the monitoring of [OSCURATO:PERSONA] aid commitments and, therefore, it seeks to fulfil its obligation of sincere cooperation, under which the EU institutions and national authorities are required, in full mutual respect, to assist each other in carrying out the tasks which flow from the Treaties, in accordance with [OSCURATO:PERSONA] 4(3) TEU.

As regards the public statement of 20 March 2019, this was issued in a political context which goes beyond the strict performance of administrative functions by the Commissioner responsible for competition. 49 As regards the content of the contested measures, it is admittedly true that they provide their addressee with indications as to the [OSCURATO:PERSONA] position on information which is, moreover, relevant to the examination of the complaint of 17 January 2019, that is to say, the relevant date for examining the compatibility of the acquisition with [OSCURATO:PERSONA] aid commitments given (see paragraphs 10 and 11 above). 50 However, it also follows from the content of the contested measures that they are only views or opinions, which do not bind the [OSCURATO:PERSONA] and do not prejudge its final position on the complaint of 17 January 2019, which depends on the examination of, inter alia, the information submitted by the applicant in support of that complaint. 51 As regards the [OSCURATO:PERSONA] intention underlying the contested measures, it can be inferred from their context and their content that those measures are not intended to define, at the end of the preliminary examination stage, the [OSCURATO:PERSONA] position on the complaint of 17 January 2019. 52 On the contrary, it is evident from the case file that the administrative procedure relating to the complaint of 17 January 2019 was still ongoing at the date of the contested measures.

Thus, at a date subsequent to those measures, the [OSCURATO:PERSONA] sent the applicant two letters of preliminary assessment explaining that those letters did not express its final position on the complaint (see paragraphs 16 and 20 above). 53 The applicant has thus failed to demonstrate that it follows from the contested measures that, in March 2019, the [OSCURATO:PERSONA] had already adopted a decision on the complaint of 17 January 2019. 54 In addition, in connection with its observations on the non-confidential version of the letter of 8 March 2019, the applicant raises an alleged breach of its right to an effective legal remedy.

In this respect, it suffices to recall that, although the conditions of admissibility of an action laid down [OSCURATO:PERSONA] 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation nevertheless cannot have the effect of setting those conditions aside (see, to that effect, judgment of 21 January 2016,

SACBO

v [OSCURATO:PERSONA] and INEA , C‑281/14 P, not published, EU:C:2016:46, paragraph 46 and the case-law cited). 55 In the present case, the applicant’s right to an effective legal remedy is ensured by the possibility of bringing an action for annulment against the decision of the [OSCURATO:PERSONA], which is still outstanding, on the complaint of 17 January 2019 and, where appropriate, by the possibility of bringing an action for failure to act in respect of a possible failure to comply with the reasonable time limit for dealing with that complaint. 56 It follows from all of the foregoing that it is not possible to accord a legally binding nature to the contested measures, in particular in respect of the applicant, and, therefore, to infer the existence of a measure which is open to challenge and against which an action may be brought on the basis of [OSCURATO:PERSONA] 263 TFEU. 57 The first ground of inadmissibility raised by the [OSCURATO:PERSONA] must therefore be upheld and the present action must be dismissed in its entirety as inadmissible, without there being any need to examine the second ground of inadmissibility.

Application to intervene 58 Pursuant to [OSCURATO:PERSONA] 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in [OSCURATO:PERSONA] 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. 59 In the present case, since the action is being dismissed in its entirety as being inadmissible, there is no need to rule on the application to intervene, in accordance with [OSCURATO:PERSONA] 142(2) of the Rules of Procedure.

Costs 60 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those relating to the proceedings for interim measures, in accordance with the form of order sought by the [OSCURATO:PERSONA], with the exception of the costs relating to the application to intervene. 61 In addition, under [OSCURATO:PERSONA] 144(10) of the Rules of Procedure, if, as in the present case, the proceedings in the main case are concluded before a decision has been taken on the application to intervene, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene.

Given that notice of the application to intervene was not served on the main parties and that, therefore, they were not in a position in which they might incur costs, it must be held that the [OSCURATO:PERSONA] is to bear its own costs in that regard.

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby orders:

1. The action is dismissed as being inadmissible.

2. There is no need to rule on the application to intervene of the [OSCURATO:PERSONA].

3. [OSCURATO:PERSONA] LLP shall pay the costs, including those relating to the proceedings for interim measures, with the exception of those relating to the application to intervene.

4. [OSCURATO:PERSONA] shall bear its own costs relating to the application to intervene.

Luxembourg, 23 March 2020.

E. Coulon

M.J. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 23 March 2020 ( * ) (Action for annulment — [OSCURATO:PERSONA] aid — Complaint — Measure not open to challenge — Inadmissibility) [OSCURATO:PERSONA] T‑280/19, [OSCURATO:PERSONA] LLP, established in London ([OSCURATO:PERSONA]), represented by M. Struys, lawyer, applicant, v [OSCURATO:PERSONA], represented by K. Blanck, A. Bouchagiar and K.‑Ph. Wojcik, acting as Agents, defendant, APPLICATION under [OSCURATO:PERSONA] 263 TFEU for annulment of the [OSCURATO:PERSONA] decision rejecting a complaint relating to unlawful [OSCURATO:PERSONA] aid granted to [OSCURATO:PERSONA] SA through the acquisition of [OSCURATO:PERSONA] (SA.53105), allegedly contained in the letter of 8 March 2019 from the [OSCURATO:PERSONA][OSCURATO:PERSONA] for Competition and in the public statement of 20 March 2019 of the Commissioner responsible for competition, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M.J. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], D. Gratsias and B. Berke, Judges, [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute 1 In connection with the restructuring of the banking sector in [OSCURATO:PERSONA], [OSCURATO:PERSONA] SA and [OSCURATO:PERSONA] SA (‘[OSCURATO:PERSONA]’) received [OSCURATO:PERSONA] aid through the [OSCURATO:PERSONA]. 2 By its decisions of 26 and 29 [OSCURATO:PERSONA] 2015, adopted in [OSCURATO:PERSONA] aid control procedures SA.43363 and SA.43364, the [OSCURATO:PERSONA] took the view that the aid granted by the [OSCURATO:PERSONA] was compatible with the internal market, in the light of, inter alia, the commitments given by the [OSCURATO:PERSONA] which formed an integral part of the restructuring plans applicable to [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] respectively. 3 According to the restructuring plan for [OSCURATO:PERSONA], that bank was not, in principle, allowed to acquire stakes. According to the restructuring plan for [OSCURATO:PERSONA], that bank was required to transfer foreign assets, including its [OSCURATO:PERSONA] subsidiary, [OSCURATO:PERSONA] AD. Those commitments were applicable until 31 December 2018. 4 [OSCURATO:PERSONA] 2017, [OSCURATO:PERSONA] launched a procedure for the sale of its [OSCURATO:PERSONA] subsidiary, [OSCURATO:PERSONA]. 5 The applicant, [OSCURATO:PERSONA] LLP, participated, alongside other bidders, in that procedure and submitted an offer to purchase [OSCURATO:PERSONA]. 6 On 24 October 2018, [OSCURATO:PERSONA] accepted [OSCURATO:PERSONA] offer as the best offer. 7 On 7 [OSCURATO:PERSONA] 2018, [OSCURATO:PERSONA] acquisition of [OSCURATO:PERSONA] was publicly announced. 8 The final closing of the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] was planned for the beginning of 2019, that acquisition being subject to approval by the Balgarska narodna banka ([OSCURATO:PERSONA]) and the Komisiya za zashtita na konkurentsiyata ([OSCURATO:PERSONA] competition authority). 9 On 17 January 2019, the applicant lodged a complaint with the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 24 of [OSCURATO:PERSONA] (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of [OSCURATO:PERSONA] 108 TFEU (OJ 2015 L 248, p. 9) (‘the complaint of 17 January 2019’). In that complaint, the applicant set out, in essence, two reasons why it took the view that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] was unlawful. In the first place, it claimed, that acquisition is incompatible with the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. In the second place, it claimed, that acquisition involves the grant, by the [OSCURATO:PERSONA], of [OSCURATO:PERSONA] aid in favour of [OSCURATO:PERSONA]. 10 By letter of 8 March 2019 (‘the letter of 8 March 2019’), the [OSCURATO:PERSONA][OSCURATO:PERSONA] (DG) for Competition replied to a letter from the [OSCURATO:PERSONA] of 19 February 2019 concerning the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA]. In its letter, the [OSCURATO:PERSONA] replied that, in accordance with its practice relating to the monitoring of [OSCURATO:PERSONA] aid commitments, the final closing date of an acquisition was the relevant date to be taken into consideration when assessing the compatibility of that acquisition with commitments given. In addition, the [OSCURATO:PERSONA] claimed that, in so far as the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ended on 31 December 2018 and the final closing date of the acquisition of [OSCURATO:PERSONA] was planned for the first quarter of 2019, there were no further applicable [OSCURATO:PERSONA] aid commitments at that date which prevented [OSCURATO:PERSONA] from acquiring [OSCURATO:PERSONA]. 11 On 20 March 2019, in response to a question raised by a [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] concerning the proposed acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA], the Commissioner responsible for competition made the following public statement (‘the public statement of 20 March 2019’): ‘To find aid to ailing banks compatible with the internal market, the [OSCURATO:PERSONA] is, amongst other things, seeking a commitment from the bank and the [OSCURATO:PERSONA] that the former will not make acquisitions during its restructuring period, thereby preventing the use of the aid received in mergers and acquisitions. However, once this “acquisition ban” commitment has expired, on 31 December 2018 in this case, the [OSCURATO:PERSONA] has no longer any competence under [OSCURATO:PERSONA] aid rules to intervene in acquisitions made by the bank. [OSCURATO:PERSONA] announced acquisition of [OSCURATO:PERSONA], the closing date of the sale is expected to take place during the 1 st quarter of 2019. [OSCURATO:PERSONA] takes that closing date into account to conclude that the transaction no longer falls under [OSCURATO:PERSONA] acquisition ban. The closing date is seen as the relevant date, since the binding offer or [OSCURATO:PERSONA] can contain conditions (such as regulatory approvals) that prevent the sale from closing in case they are not fulfilled. [OSCURATO:PERSONA] is in regular contact with the Greek authorities and receives updates on the bank’s compliance with the Commitments through the appointed [OSCURATO:PERSONA]. Besides, the [OSCURATO:PERSONA] has received a complaint from an unsuccessful bidder for [OSCURATO:PERSONA] and deals with this complaint in line with its standard procedures.’ 12 By letter of 19 April 2019, the applicant, pursuant to [OSCURATO:PERSONA] 265 TFEU, requested the [OSCURATO:PERSONA] to issue a decision on the complaint of 17 January 2019 within two months of the date of that letter and informed it that, if this were not done, it would bring an action for failure to act. 13 On the same day, the applicant sent a second letter to the [OSCURATO:PERSONA]. In that letter, the applicant requested the [OSCURATO:PERSONA] to provide it with a copy of the letter of 8 March 2019. The applicant claimed that the letter of 8 March 2019 amounted to a decision partially or wholly rejecting its complaint of 17 January 2019, in so far as the [OSCURATO:PERSONA] took the view that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] did not breach the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. The applicant claims that it had been misled by the [OSCURATO:PERSONA] inasmuch as the latter had informed the applicant on 16 April 2019 that no decision had yet been made. 14 By email of 25 April 2019, the [OSCURATO:PERSONA] DG for Competition informed the applicant that its request for access to the letter of 8 March 2019 would be treated in accordance with [OSCURATO:PERSONA] (EC) No 1049/2001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 30 May 2001 regarding public access to [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] documents (OJ 2001 L 145, p. 43). 15 The applicant brought the present action on 30 April 2019. Facts arising after the action had been brought 16 On 2 May 2019, the [OSCURATO:PERSONA] DG for Competition sent the applicant a first letter of preliminary assessment of the complaint of 17 January 2019. In that letter, the [OSCURATO:PERSONA] stated that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] did not breach the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. Likewise, that acquisition did not involve the grant of [OSCURATO:PERSONA] aid in favour of [OSCURATO:PERSONA]. Moreover, the [OSCURATO:PERSONA] stated that that preliminary assessment did not express its definitive position on the complaint of 17 January 2019, but only a view of the services of the [OSCURATO:PERSONA] DG for Competition, on the basis of a prima facie examination under [OSCURATO:PERSONA] 24(2) of [OSCURATO:PERSONA] 2015/1589 and pending any additional comments from the applicant. 17 On 23 May 2019, the [OSCURATO:PERSONA] refused the applicant access to a copy of the letter of 8 March 2019 on the ground that the document was covered by the exceptions provided for in [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 1049/2001. 18 On 1 June 2019, the applicant replied to the first letter of preliminary assessment on the complaint of 17 January 2019. 19 On 14 June 2019, [OSCURATO:PERSONA] announced, by means of a press release, that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] had been completed. 20 On 19 June 2019, the [OSCURATO:PERSONA] DG for Competition sent the applicant a second letter of preliminary assessment of the complaint of 17 January 2019. In that letter, the [OSCURATO:PERSONA] stated that the applicant was not an interested party within the meaning of [OSCURATO:PERSONA] 1(h) of [OSCURATO:PERSONA] 2015/1589 as regards implementation of the [OSCURATO:PERSONA] decisions on the approval of [OSCURATO:PERSONA] aid in favour of [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. [OSCURATO:PERSONA] also pointed out that that preliminary assessment did not express its definitive position on the complaint of 17 January 2019, but only a view of the services of the DG for Competition on the basis of a new prima facie examination. 21 On 18 July 2019, the applicant replied to that second letter of preliminary assessment. Procedure and forms of order sought 22 By application lodged at the [OSCURATO:PERSONA] on 30 April 2019, the applicant brought the present action. 23 By separate document lodged at the [OSCURATO:PERSONA] on the same day, the applicant requested that the present action be decided under an expedited procedure, in accordance with [OSCURATO:PERSONA] 152 of the Rules of Procedure of the [OSCURATO:PERSONA]. On 20 May 2019, the [OSCURATO:PERSONA] lodged its observations on that request. By decision of 24 May 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) refused the application for an expedited procedure. 24 By separate document lodged at the [OSCURATO:PERSONA] on 13 May 2019, the applicant submitted an application for interim measures seeking first, suspension of the operation of a [OSCURATO:PERSONA] decision rejecting a complaint relating to allegedly unlawful [OSCURATO:PERSONA] aid granted to [OSCURATO:PERSONA] through the acquisition of [OSCURATO:PERSONA] (SA.53105) and, second, the grant of other interim measures. 25 By separate document lodged at the [OSCURATO:PERSONA] on 15 July 2019, the [OSCURATO:PERSONA] raised a plea of inadmissibility under [OSCURATO:PERSONA] 130 of the Rules of Procedure. The applicant submitted its observations on that plea on 6 September 2019. 26 By document lodged at the [OSCURATO:PERSONA] on 15 August 2019, the [OSCURATO:PERSONA] sought leave to intervene in the present proceedings in support of the form of order sought by the [OSCURATO:PERSONA]. 27 By order of 12 July 2019, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑280/19 R, not published, EU:T:2019:545), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] dismissed the application for interim measures and ordered that the costs be reserved. 28 Following a change in the composition of the Chambers of the [OSCURATO:PERSONA], pursuant to [OSCURATO:PERSONA] 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the [OSCURATO:PERSONA], to which the present case was accordingly allocated. 29 By order of 23 October 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) ordered the [OSCURATO:PERSONA] to produce the letter of 8 March 2019. [OSCURATO:PERSONA] complied with that demand within the prescribed period. 30 By order of 25 [OSCURATO:PERSONA] 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), after weighing up the matters referred to in [OSCURATO:PERSONA] 103(2) of the Rules of Procedure, ordered the [OSCURATO:PERSONA] to produce a non-confidential version of the letter of 8 March 2019 in order for it to be communicated to the applicant. 31 [OSCURATO:PERSONA] complied with that request within the prescribed period and the document which it produced was sent to the applicant. 32 The applicant set out its observations on that document on 20 December 2019. 33 In the application, the applicant claims that the [OSCURATO:PERSONA] should: –        annul the [OSCURATO:PERSONA] decision rejecting the complaint of 17 January 2019; –        order the [OSCURATO:PERSONA] to pay the costs. 34 In its plea of inadmissibility, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as inadmissible; –        order the applicant to pay the costs. 35 In its observations on the plea of inadmissibility, the applicant claims that the [OSCURATO:PERSONA] should: –        reject the plea of inadmissibility; –        order the [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] of the action 36 [OSCURATO:PERSONA] 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the [OSCURATO:PERSONA] may give a ruling on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the [OSCURATO:PERSONA] has applied for a decision on inadmissibility, the [OSCURATO:PERSONA], finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking any further steps in the proceedings. 37 In support of the plea of inadmissibility, the [OSCURATO:PERSONA] raises two grounds of inadmissibility alleging, first, that there is no measure against which an action for annulment can be brought under [OSCURATO:PERSONA] 263 TFEU and, second, that the applicant does not have the status of ‘an interested party’ within the meaning of [OSCURATO:PERSONA] 24 of [OSCURATO:PERSONA] 2015/1589. 38 In the context of the first ground of inadmissibility, the [OSCURATO:PERSONA] claims, in essence, that the present action relates to a fictitious or non-existent act. The letter of 8 March 2019 and the public statement of 20 March 2019 (together, ‘the contested measures’), which, according to the applicant, represent the decision allegedly adopted by the [OSCURATO:PERSONA], do not relate to the [OSCURATO:PERSONA] position on the complaint of 17 January 2019. On the contrary, the contested measures were taken in connection with different proceedings that have no effect on the examination of that complaint, which is still ongoing. 39 In its observations on the plea of inadmissibility, the applicant submits that, despite the lack of a formal [OSCURATO:PERSONA] decision, the contested measures reveal a final [OSCURATO:PERSONA] decision partially rejecting the complaint of 17 January 2019 to the extent that that complaint was based on the breach of commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. It is evident from the contested measures that the [OSCURATO:PERSONA] took the view that the acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA] was not incompatible with those commitments, on the ground that the relevant date for compliance with those commitments was the final closing date of that acquisition. 40 Additionally, in the observations on the non-confidential version of the letter of 8 March 2019, the applicant submits that that document confirms the existence of a [OSCURATO:PERSONA] decision rejecting its complaint of 17 January 2019. That letter, the applicant argues, contains no ‘preliminary position’ of the [OSCURATO:PERSONA] and does not suggest that the complaints procedure is still ongoing. By contrast, that letter establishes that the [OSCURATO:PERSONA] had already rejected the complaint of 17 January 2019, at least in so far as that complaint was based on the breach of commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA], since the [OSCURATO:PERSONA] maintains that, at the relevant date, there were no more applicable [OSCURATO:PERSONA] aid commitments which prevented [OSCURATO:PERSONA] from acquiring [OSCURATO:PERSONA]. 41 Furthermore, in the observations on the non-confidential version of the letter of 8 March 2019, the applicant claims that that letter confirms that the [OSCURATO:PERSONA] defence strategy breaches the requirements of a fair trial and good administration and is intended to deprive the applicant of its right to an effective legal remedy, in breach of its rights of defence. 42 According to consistent case-law, any provisions adopted by the institutions of the [OSCURATO:PERSONA], whatever their form, which are intended to have binding legal effects are regarded as actionable measures, within the meaning of [OSCURATO:PERSONA] 263 TFEU. Those binding legal effects of a measure must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgments of 13 February 2014, Hungary v [OSCURATO:PERSONA] , C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited, and of 25 October 2017, Romania v [OSCURATO:PERSONA] , C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48). 43 Furthermore, it is, in principle, those measures which definitively determine the position of the [OSCURATO:PERSONA] upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, that constitute acts open to challenge for the purposes of [OSCURATO:PERSONA] 263 TFEU, and not intermediate measures the purpose of which is to prepare for the final decision, which do not have those effects (see judgment of 18 [OSCURATO:PERSONA] 2010, NDSHT v [OSCURATO:PERSONA] , C‑322/09 P, EU:C:2010:701, paragraph 48 and the case-law cited). 44 In the present case, since the form of the contested measures is not decisive, it is necessary to examine the substance of those measures in order to assess whether they produce legally binding effects, in particular in respect of the applicant, or whether the existence of such a legally binding measure must be inferred, taking into account objective criteria, such as the content of those measures, their context and the intention of those who drafted them. 45 In this respect, first, it must be held that the letter of 8 March 2019 was sent by the [OSCURATO:PERSONA] DG for Competition to the [OSCURATO:PERSONA] in reply to a question which it had put to the [OSCURATO:PERSONA]. In that letter, it is stated, inter alia, that the [OSCURATO:PERSONA] practice relating to the monitoring of [OSCURATO:PERSONA] aid commitments is to take into account the final closing date of an acquisition as the relevant date for examining the compatibility of the acquisitions with the commitments given. In addition, the [OSCURATO:PERSONA] stated that, in so far as the commitments arising from the restructuring plans for [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ended on 31 December 2018 and the final closing date of the acquisition of [OSCURATO:PERSONA] was planned for the first quarter of 2019, there were no further applicable [OSCURATO:PERSONA] aid commitments at that date which prevented [OSCURATO:PERSONA] from acquiring [OSCURATO:PERSONA] (see paragraph 10 above). 46 [OSCURATO:PERSONA], it must be held that the public statement of 20 March 2019 is a reply of the Commissioner responsible for competition to a question raised by a [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] concerning the proposed acquisition of [OSCURATO:PERSONA] by [OSCURATO:PERSONA]. In that statement, it is asserted that the [OSCURATO:PERSONA] takes into account the closing date of [OSCURATO:PERSONA] announced acquisition of [OSCURATO:PERSONA] as the relevant date to conclude that the transaction no longer comes under [OSCURATO:PERSONA] acquisition ban. Moreover, reference is made to ‘a complaint from an unsuccessful bidder’, stating that that complaint is ongoing (see paragraph 11 above). 47 As regards the context of the contested measures, it must be noted from the outset that they were not addressed to the applicant. The letter of 8 March 2019 contains a reply from the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA], while the public statement of 20 March 2019 corresponds to a reply of the Commissioner responsible for competition to a question raised by a [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 48 Furthermore, the contested measures were taken outside the scope of the administrative procedure relating to the complaint of 17 January 2019. By the letter of 8 March 2019, the [OSCURATO:PERSONA] seeks to provide a response to the [OSCURATO:PERSONA] concerning its practice relating to the monitoring of [OSCURATO:PERSONA] aid commitments and, therefore, it seeks to fulfil its obligation of sincere cooperation, under which the EU institutions and national authorities are required, in full mutual respect, to assist each other in carrying out the tasks which flow from the Treaties, in accordance with [OSCURATO:PERSONA] 4(3) TEU. As regards the public statement of 20 March 2019, this was issued in a political context which goes beyond the strict performance of administrative functions by the Commissioner responsible for competition. 49 As regards the content of the contested measures, it is admittedly true that they provide their addressee with indications as to the [OSCURATO:PERSONA] position on information which is, moreover, relevant to the examination of the complaint of 17 January 2019, that is to say, the relevant date for examining the compatibility of the acquisition with [OSCURATO:PERSONA] aid commitments given (see paragraphs 10 and 11 above). 50 However, it also follows from the content of the contested measures that they are only views or opinions, which do not bind the [OSCURATO:PERSONA] and do not prejudge its final position on the complaint of 17 January 2019, which depends on the examination of, inter alia, the information submitted by the applicant in support of that complaint. 51 As regards the [OSCURATO:PERSONA] intention underlying the contested measures, it can be inferred from their context and their content that those measures are not intended to define, at the end of the preliminary examination stage, the [OSCURATO:PERSONA] position on the complaint of 17 January 2019. 52 On the contrary, it is evident from the case file that the administrative procedure relating to the complaint of 17 January 2019 was still ongoing at the date of the contested measures. Thus, at a date subsequent to those measures, the [OSCURATO:PERSONA] sent the applicant two letters of preliminary assessment explaining that those letters did not express its final position on the complaint (see paragraphs 16 and 20 above). 53 The applicant has thus failed to demonstrate that it follows from the contested measures that, in March 2019, the [OSCURATO:PERSONA] had already adopted a decision on the complaint of 17 January 2019. 54 In addition, in connection with its observations on the non-confidential version of the letter of 8 March 2019, the applicant raises an alleged breach of its right to an effective legal remedy. In this respect, it suffices to recall that, although the conditions of admissibility of an action laid down [OSCURATO:PERSONA] 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation nevertheless cannot have the effect of setting those conditions aside (see, to that effect, judgment of 21 January 2016, SACBO v [OSCURATO:PERSONA] and INEA , C‑281/14 P, not published, EU:C:2016:46, paragraph 46 and the case-law cited). 55 In the present case, the applicant’s right to an effective legal remedy is ensured by the possibility of bringing an action for annulment against the decision of the [OSCURATO:PERSONA], which is still outstanding, on the complaint of 17 January 2019 and, where appropriate, by the possibility of bringing an action for failure to act in respect of a possible failure to comply with the reasonable time limit for dealing with that complaint. 56 It follows from all of the foregoing that it is not possible to accord a legally binding nature to the contested measures, in particular in respect of the applicant, and, therefore, to infer the existence of a measure which is open to challenge and against which an action may be brought on the basis of [OSCURATO:PERSONA] 263 TFEU. 57 The first ground of inadmissibility raised by the [OSCURATO:PERSONA] must therefore be upheld and the present action must be dismissed in its entirety as inadmissible, without there being any need to examine the second ground of inadmissibility. Application to intervene 58 Pursuant to [OSCURATO:PERSONA] 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in [OSCURATO:PERSONA] 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. 59 In the present case, since the action is being dismissed in its entirety as being inadmissible, there is no need to rule on the application to intervene, in accordance with [OSCURATO:PERSONA] 142(2) of the Rules of Procedure. Costs 60 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those relating to the proceedings for interim measures, in accordance with the form of order sought by the [OSCURATO:PERSONA], with the exception of the costs relating to the application to intervene. 61 In addition, under [OSCURATO:PERSONA] 144(10) of the Rules of Procedure, if, as in the present case, the proceedings in the main case are concluded before a decision has been taken on the application to intervene, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Given that notice of the application to intervene was not served on the main parties and that, therefore, they were not in a position in which they might incur costs, it must be held that the [OSCURATO:PERSONA] is to bear its own costs in that regard. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as being inadmissible. 2. There is no need to rule on the application to intervene of the [OSCURATO:PERSONA]. 3. [OSCURATO:PERSONA] LLP shall pay the costs, including those relating to the proceedings for interim measures, with the exception of those relating to the application to intervene. 4. [OSCURATO:PERSONA] shall bear its own costs relating to the application to intervene. Luxembourg, 23 March 2020. E. Coulon M.J. [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 2015/2020 — Fons Iuris — Fons Iuris