The President of the General Court has recently given decisions in the form of orders on the Schenker's applications to intervene in a number of appeals that are challenging the European Commission's decision in the air cargo cartel.12
Schenker is a logistics company and claimed that, as a customer of cartel members, it had a direct interest in maintaining of the Commission decision, particularly as it intends to bring damages actions based on the Commission's decision before national courts.
The President of the General Court dismissed Schenker application because it had not established a direct and existing interest in the result of the actions for annulment of the Commission Decision as requested by second paragraph of Article 40 the Statute of the Court of Justice of the EU13.
The President of the General Court concludes that Schenker failed to establish how the outcome of the actions for annulment of the Commission Contested decision is likely to affect its commercial activities of supplying logistics services. Furthermore, the outcome of this case will also not harm its capacity of downstream customers to conclude contracts with Schenker or their interest in doing so, or alter Schenker’s contractual rights and obligations vis-à-vis the applicants. The President also stresses that Schenker has never filed a complaint with the Commission concerning the conduct referred to in the contested decision and did not participate in the administrative procedure.
The fact that Schenker might have been affected by high prices caused by the alleged cartel did not give it a right to intervene. Schenker is just one of a very large number of undertakings which might potentially have been affected by the alleged cartel in question. It is not distinguished from the other consumers of airfreight services. The President of the General Court considers that unlike in a previous case14, Schenker failed to take steps to safeguard its rights before adoption of the contested decision.
The right to intervene is not established by virtue of Schenker's intention to bring damages actions before national courts. Schenker was required to establish that it had an interest going beyond that of the other consumers of airfreight services which might bring actions for damages and it failed to so in the present case.
The President of the General Court observes “that the purpose of the present proceedings is not to make possible or facilitate the bringing of civil actions in the national legal system, such as claims for damages. Their purpose is to review the legality of the decision by which the Commission punished the undertaking in question for infringing the rules of competition law and to review the amount of the fine consequently imposed on it”. In addition, the President sides with the Commission and stated that “Schenker’s right to claim damages as compensation for losses caused by anti‑competitive practices adopted in breach of Article 101 TFEU can be exercised independently of any prior decision by the Commission”.
The orders appear to narrow the right to intervene. The President of the General Court considers that the application to intervene can be successful if the applicant has taken measures to safeguard its rights before the adoption of the contested decision. This would distinguish the intervener from other consumers. According to the orders, this is the case when an intervener has filed a complaint with the Commission concerning the conduct referred to in the contested decision and has participated in the administrative procedure before the Commission; or when an intervener has asserted its rights and its interests in a national judicial proceeding before the adoption of the Commission’s decision.
Schenker has appealed the dismissal orders.15