ORDER OF THE PRESIDENT
OF THE THIRD CHAMBER OF THE GENERAL COURT
23 September 2019 (*)
(Competition — Abuse of dominant position — Information and communication technology sector — Contractual restrictions — Interventions — Interest in the result of the case — Association whose objective is to defend the interests of consumers — Association of undertakings operating in the sector concerned — Competitor undertaking that is a competitor of the fined undertaking — Contractual partner of the fined undertaking — Request for confidential treatment)
In Case T‑604/18,
Google LLC, established in Mountain View, California (United States),
Alphabet Inc., established in Mountain View,
represented by N. Levy, Solicitor, P. Stuart, Barrister, J. Schindler and A. Lamadrid de Pablo, lawyers,
applicants,
v
European Commission, represented by T. Christoforou, N. Khan, A. Dawes and C. Urraca Caviedes, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of Commission Decision C(2018) 4761 final of 18 July 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.40099 — Google Android) or, in the alternative, annulment or reduction of the amount of the fine imposed under that decision,
THE PRESIDENT OF THE THIRD CHAMBER OF THE TRIBUNAL
makes the following
Order
Background to the dispute and administrative procedure
1 Google LLC (formerly Google Inc.), a subsidiary of Alphabet Inc. (taken together or with reference to the eponymous search engine, ‘Google’), is an undertaking within the information and communication technology sector specialising in internet-related products and services.
2 Google obtains the vast majority of its revenues through its flagship product, the Google search engine. In 2005, to respond to the shift from desktop PCs to mobile internet, Google bought the original developer of the Android mobile operating system. According to the Commission, in July 2018, about 80% of smart mobile devices used in Europe, and worldwide, ran on Android.
3 When Google develops a new version of Android it publishes the source code online. This in principle allows third parties to download and modify this code to create Android ‘forks’. The openly accessible Android source code covers basic features of a smart mobile operating system but not Android apps and services owned by Google (‘the proprietary apps and services’). Device manufacturers who wish to obtain the proprietary apps and services therefore need to enter into contracts with Google. Google also enters into such contracts with mobile network operators, who wish to be able to install the proprietary apps and services on the devices sold to end users.
Administrative procedure before the Commission
4 On 25 March 2013, FairSearch AISBL (‘FairSearch’), an association of undertakings active in the information and communication technology sector, lodged a complaint with the Commission against certain business practices by Google in the mobile internet environment.
5 Following that complaint, the Commission sent requests for information to Google, to its customers, to its competitors and to other parties operating in that environment.
6 Other entities also lodged complaints with the Commission regarding Google’s conduct in the mobile internet environment.
7 On 15 April 2015, the Commission initiated a formal investigation procedure against Google in relation to the operating system for Android mobile devices.
8 Between June 2015 and April 2016, the Commission organised a number of meetings with Google or with third parties concerned by that procedure.
9 On 20 April 2016, the Commission sent a statement of objections to Google. A non-confidential version of that statement of objections was also sent to 17 complainants and third parties concerned.
10 Between October 2016 and October 2017, the Commission received comments on that statement of objections from 11 complainants and third parties concerned and, in December 2016, Google submitted the final version of its response to the statement of objections.
11 At this stage of the procedure, the Commission sent new requests for information to Google, to its customers, to its competitors and to other parties operating in the mobile internet environment, such as app developers and providers of web-based services.
12 Between August 2017 and May 2018, the Commission provided Google with various factual elements capable of supporting the conclusions which had been reached by the Commission in the statement of objections.
13 In that context, in September 2017, Google requested full records of the meetings that the Commission held with the third parties concerned by the procedure. The Commission replied to that request in February 2018.
14 On 21 June 2018, at Google’s request, the Commission provided that undertaking with two letters received from third parties concerned. On 27 June 2018, Google submitted its observations on those documents.
Subject matter of the case
15 On 18 July 2018, the Commission adopted Decision C(2018) 4761 final relating to a proceeding pursuant to Article 102 TFEU and Article 54 of the EEA Agreement in case AT.40099 — Google Android (‘the Decision’).
16 According to the Commission, the products and services concerned by the Decision are smart mobile devices (phones or tablets), their operating systems, the apps used by those devices (‘the apps’), the distribution platforms for the apps (‘the app stores’), the application programming interfaces (‘the APIs’), online search services usually provided on the basis of a search engine (for example, Google, Bing or Seznam) and web browsers (‘the devices, apps and search services concerned by the Decision’).
17 In the Decision, the Commission imposed a fine on Google LLC and, in part, on Alphabet Inc. for having breached competition law rules by imposing illegal contractual restrictions on Android device manufacturers and mobile network operators to consolidate Google’s dominant position in the general internet search market.
18 In the Decision, the Commission referred to three types of contractual restriction:
– restrictions pursuant to Google’s Mobile Application Distribution Agreements (‘MADAs’) whereby Google required device manufacturers (‘OEMs’) to pre-install the Google general search (Google Search) and Google browser (Google Chrome) applications (‘apps’), as a condition for licensing Google’s app store (Play Store);
– restrictions pursuant to Google’s Anti-Fragmentation Agreements (‘AFAs’) whereby OEMs that wished to pre-install Google apps were prevented from selling even a single device on alternative versions of Android that were not approved by Google (‘Android forks’); and
– restrictions pursuant to Google’s revenue share agreements (‘RSAs’) whereby Google shared with certain OEMs and mobile network operators (‘MNOs’) a percentage of Google’s search advertising revenues provided that the OEMs and MNOs agreed not to pre-install any competing general search service on any device within an agreed portfolio.
19 According to the Commission, the objective of those contractual restrictions (‘the restrictions at issue’) was to protect and strengthen Google’s dominant position in online search services, and thus the revenue obtained by that undertaking from search advertisements.
20 The Commission imposed a fine of EUR 4 342 865 000 on Google in respect of those practices. The Commission also required Google to cease those practices within 90 days of the notification of the Decision.
21 On 16 October 2018, Google announced the various measures envisaged to put an end to the practices fined by the Commission pending the judgment of the General Court. In particular, Google stated that, in so far as the pre-installation of Google Search and Chrome together with its other apps helped fund the development and free distribution of Android, a new paid licensing agreement was to be introduced from the end of the month of October 2018 for the distribution of Android devices within the European Economic Area (EEA) and separate licenses were to be offered for Google Search and for Chrome.
Proceedings before the General Court
22 By application lodged at the Court Registry on 9 October 2018, Google brought an action for annulment of the Decision or, in the alternative, for variation of the fine imposed by that decision.
23 In accordance with Article 79 of the Rules of Procedure of the General Court, a notice of that case was published in the Official Journal of the European Union of 10 December 2018 (OJ 2018 C 445, p. 21).
24 On 15 March 2019, the Commission lodged its defence in which it claims that the action should be dismissed in its entirety.
The applications to intervene
25 11 applications to intervene were made within the time period provided for in Article 143(1) of the Rules of Procedure.
26 First, by document lodged at the Court Registry on 18 January 2019, Application Developers Alliance (‘ADA’), an association of undertakings active in the information and communication technology sector, applied for leave to intervene in support of the form of order sought by Google.
27 Second, by document lodged at the Court Registry on 20 January 2019, the European Consumer Organisation (Bureau européen des unions de consommateurs; ‘BEUC’) an association whose objective is to defend the interests of consumers, applied for leave to intervene in support of the form of order sought by the Commission.
28 Third, by document lodged at the Court Registry on 30 January 2019, the Computer & Communications Industry Association (‘the CCIA’), an association of undertakings active in the information and communication technology sector, applied for leave to intervene in support of the form of order sought by Google.
29 Fourth, by document lodged at the Court Registry on 30 January 2019, Gigaset Communications GmbH (‘Gigaset’), a manufacturer of Android devices, applied for leave to intervene in support of the form of order sought by Google.
30 Fifth, by document lodged at the Court Registry on 30 January 2019, HMD Global Oy (‘HMD’), a manufacturer of Android devices, applied for leave to intervene in support of the form of order sought by Google.
31 Sixth, by document lodged at the Court Registry on 30 January 2019, Verband Deutscher Zeitschriftenverleger eV (‘VDZ’), a federal association of German magazine publishers, applied for leave to intervene in support of the form of order sought by the Commission.
32 Seventh, by document lodged at the Court Registry on 30 January 2019, Bundesverband Deutscher Zeitungsverleger eV (‘BDZV’), an association representing the publishers of daily and weekly newspapers in Germany and their regional associations, applied for leave to intervene in support of the form of order sought by the Commission.
33 Eighth, by document lodged at the Court Registry on 31 January 2019, Seznam.cz, a.s. (‘Seznam’), a competitor of Google, in particular in the Czech Republic and in the Slovak Republic, applied for leave to intervene in support of the form of order sought by the Commission.
34 Ninth, by document lodged at the Court Registry on 31 January 2019, FairSearch, an association of undertakings active in the information and communication technology sector, applied for leave to intervene in support of the form of order sought by the Commission.
35 Tenth, by document lodged at the Court Registry on 31 January 2019, Opera Software AS (‘Opera’), a competitor of Google, in particular in Norway, applied for leave to intervene in support of the form of order sought by Google.
36 Eleventh, by document lodged at the Court Registry on 31 January 2019, Qwant SAS, a competitor of Google, in particular in France, applied for leave to intervene in support of the form of order sought by the Commission.
Observations on the applications to intervene and requests for confidentiality
37 The applications to intervene were served on the main parties who were given the opportunity to submit their written observations on those applications and to apply, if necessary, for certain confidential information in the case not to be communicated to the intervening parties.
38 In that regard, first, the main parties did not object to the applications to intervene made by ADA, BEUC and the CCIA.
39 Second, Google stated to the Court that it did not object to the applications to intervene made by Gigaset, HMD and Opera, while the Commission stated that it was opposed to those applications.
40 Third, the Commission stated to the Court that it did not object to the applications to intervene made by VDZ, BDZV, Seznam, FairSearch and Qwant, while Google stated that it was opposed to those applications.
41 In addition, in their observations on the applications to intervene or on other occasions, the main parties applied for certain confidential information in the file not to be communicated to the intervening parties in the event that they are granted leave to intervene. The procedure for identifying that information in the application and the defence, which has already been subject to several applications for extension, is still ongoing.
The applications to intervene
42 The second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which is applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, states that any person may intervene in a case before the European Union Courts, other than a case between Member States, between EU institutions or between Member States, on the one hand, and EU institutions, on the other hand, if that person can establish an interest in the result of the case.
43 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 and existing interest in the ruling on the form of order sought, not as an interest in relation to the pleas in law. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested act and whether its interest in the result of the case is established (see order of 28 November 2005, Microsoft v Commission, T‑201/04, not published, EU:T:2005:427, paragraph 44 and the case-law cited).
44 In that regard, active participation in the administrative procedure before the Commission and the filing of a complaint which led to the Commission’s investigation and to the adoption of the contested decision are factors capable, in certain circumstances, of establishing the existence of an interest in the result of the case (see order of 28 November 2013, Ryanair Holdings v Commission, T‑260/13, not published, EU:T:2013:672, paragraphs 17 to 19 and the case-law cited).
45 In the present case, in order to determine whether the applicants to intervene can establish an interest in the result of the case and therefore be allowed to intervene, a distinction should be made between the situation of associations and that of other types of legal persons.
46 As a preliminary point, it must be recalled that, in the present case, the Commission imposed a fine of more than EUR 4.34 billion, including an obligation to cease the restrictions at issue, for an alleged abuse of a dominant position from 1 January 2011 to 18 July 2018, the date on which the Decision was adopted. As reported in the press release published by the Commission on the date on which the Decision was adopted, the effect of those restrictions was that, with mobile internet making up more than half of global internet traffic and having an appreciable impact on the lives of millions of Europeans, they have denied Google’s rivals the chance to innovate and to compete with Google on their merits, on the one hand, and they have denied European consumers the benefits of effective competition in the mobile device market, on the other.
47 The Decision, the annulment of which is sought by Google and the merits of which are defended by the Commission, thus concerns an abuse that impacts, within the EEA, numerous categories of economic operators such as device manufacturers, app developers or Google’s competitors, as well as millions of European consumers.
48 Taking into account the issues in the present case, it is in the interest of the sound administration of justice that both the Court and the main parties not only benefit from the observations submitted by the various industry actors or by their representative associations on specific aspects of the assessments concerning the restrictions at issue, but also that the Court and the main parties are in a position to comment on all the observations submitted on those aspects of the case. Such observations, taken both individually and as a whole, allow the Court, as provided for in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and within the limits of the forms of order sought by the main parties, to be as well informed as possible in order to rule on the case before it.
The application to intervene made by associations
49 With regard to associations, the Courts of the European Union allow intervention by representative associations whose objective is to protect their members in cases raising questions of principle liable to affect those members (see, concerning BEUC, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1007, paragraph 11 and the case-law cited).
50 Thus, an association whose objective is to protect consumers may be allowed to intervene in a case if it represents an appreciable number of consumers concerned, its objectives include protection of those consumers’ interests, the case may raise questions of principle affecting those consumers and the interests of its members may therefore be affected to an appreciable extent by the forthcoming judgment (see, concerning BEUC, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1007, paragraph 12 and the case-law cited).
51 Similarly, an association of undertakings may be allowed to intervene in a case if it represents an appreciable number of undertakings operating in the sector concerned, its objectives include protection of its members’ interests, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the forthcoming judgment (see, concerning the CCIA, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1009, paragraph 13 and the case-law cited).
52 It is in the light of those considerations that the question of whether BEUC, ADA, the CCIA, VDZ, BDZV and FairSearch should be granted leave to intervene falls to be examined.
BEUC’s application to intervene
53 The main parties did not object to the application to intervene of BEUC.
54 As an association comprising an appreciable number of national associations representing the interests of European consumers, BEUC can, itself, be held to represent those consumers for the purposes of intervening in a case before the Court (see, concerning BEUC, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1007, paragraph 17).
55 BEUC’s Articles of Association also expressly state that its objective is to ‘promote, defend and represent the interests of European consumers’.
56 In addition, it is uncontested that the present case may raise questions of principle affecting European consumers both as actual and potential users of devices, apps and search services concerned by the Decision with the result that the interests of the members of the national associations making up BEUC may be affected to an appreciable extent by the forthcoming judgment.
57 BEUC also participated actively in the administrative procedure before the Commission.
58 As an association whose objective it is to protect consumers, BEUC therefore has a direct, existing and definite interest in the Decision not being annulled since that decision seeks to fine and to bring to an end practices that the Commission considers to be abusive and to deny European consumers the benefits of effective competition in the mobile device market.
59 It follows from the foregoing that BEUC can establish an interest in the result of the case and must therefore be granted leave to intervene in the present case in support of the form of order sought by the Commission.
Applications to intervene of ADA and the CCIA
60 As a preliminary point, with regard to the applications to intervene submitted by the associations of undertakings, it must be noted that, as in case T‑612/17, Google and Alphabet v Commission, the sector concerned is the information and communication technology sector, namely the sector in which Google and the undertakings concerned use those technologies as a vital medium for the sale of their products and services or participate in the development and commercialisation of those technologies (see, to that effect, concerning the CCIA, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1009, paragraph 18).
61 The main parties did not object to the applications to intervene made by ADA and the CCIA, two non-profit associations incorporated in the United States of America under the respective laws of the District of Columbia and of the Commonwealth of Virginia.
62 ADA, with over 100 members and more than 70 000 developers across 35 countries, and the CCIA, whose members comprise some of the most important undertakings in the information and communication technology sector, such as Amazon, Facebook, eBay, Netflix, Uber and Samsung, each represent an appreciable number of undertakings active in the sector concerned.
63 Similarly, ADA’s objective is to represent and promote the interests of app developers, while the CCIA’s objective is to promote the interests of the computer and communications industries and of its members.
64 In addition, it is common ground that the present case may raise questions of principle affecting both app developers as regards ADA and the various member undertakings of the CCIA affected by the devices, apps and search services concerned by the Decision with the result that the interests of the members of those associations may be affected to an appreciable extent by the forthcoming judgment.
65 ADA and the CCIA also participated actively in the administrative procedure before the Commission.
66 As associations of undertakings active in the sector concerned, ADA and the CCIA therefore have a direct, existing and definite interest in the annulment of the Decision since the Decision seeks to fine and to bring to an end practices that Google considers to be lawful and pro-competitive, not to have exclusionary effects and to reflect sufficiently the interests of the app developers and those of other undertakings within the sector.
67 It follows from the foregoing that ADA and the CCIA can establish an interest in the result of the case and should therefore be granted leave to intervene in the present case in support of the form of order sought by Google.
Applications to intervene of VDZ and BDZV
68 In support of their applications to intervene, contested by Google, the German associations VDZ and BDZV submit, in essence, that they meet the requirements of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union as regards associations of undertakings.
69 In that connection, VDZ and BDZV claim that they represent and are empowered to represent their members who edit and distribute press articles, in particular online, where they are in competition with Google and are affected by that undertaking’s practices. VDZ and BDZV state that around 65% of 14 to 64-year-olds have a smartphone and 55% of internet users use their mobile devices as an information source. In order to meet the expectations of consumers and of publishers, the members of VDZ and of BDZV were therefore required to develop their own apps to facilitate access to the content that they distribute and to the services related to that content. VDZ and BDZV also submit that internet users increasingly access online news content via news aggregators such as Google News and no longer directly through websites or the apps of newspaper publishers, which has an impact on the internet traffic generated by those websites and apps and therefore on their advertising revenues.
70 VDZ and BDZV also submit that they actively participated in the administrative procedure that led to the Decision by submitting, inter alia, written observations, studies and surveys to the Commission at various stages of the procedure.
71 As far as Google is concerned, it submits that VDZ and BDZV merely explain that their members are active in ‘online news markets’, which do not correspond to the sector concerned by the Decision that, when defining the relevant product markets, distinguishes in particular general search services from other online services, such as content sites, specialised search services and social networks. In addition, the members of those associations do not themselves have a direct and existing interest in the result of the case. The reasons advanced in that regard by VDZ and BDZV are hypothetical or too remote from the practices fined by the Commission in the Decision.
72 Google also submits that the participation of VDZ and BDZV in the administrative procedure that led to the Decision is insufficient to establish their interest in the result of the case.
73 In the first place, regarding representativeness, the Court notes that VDZ brings together more than 400 magazine publishers representing almost 6 000 magazine titles, around EUR 14.5 billion in revenue and 60 000 employees and that BDZV unites the publishers of almost 300 daily or weekly, regional or national newspapers such as BILD, Süddeutsche Zeitung, Frankfurter Allgemeine Zeitung, Die Welt or Handelsblatt. It must therefore be acknowledged that those associations represent an appreciable number of undertakings active in the field of online press, in particular for the publication of news on websites.
74 In that context, Google errs in maintaining that VDZ and BDZV do not satisfy the requirement that their members be active in the sector concerned by the case. For VDZ and BDZV, the devices, apps and general search services concerned by the Decision have become an essential channel for distributing news and press articles. In that regard, it must be borne in mind that the concept of ‘market’ is a specific concept in competition law, narrower than that of ‘sector’, in particular when it is used to characterise a dominant position. The sector at issue here in the present case is therefore broader than the markets in which an infringement of Article 102 TFEU was found in the Decision and covers the activity of press publishers which distribute news and referenced articles on Google (see, to that effect, concerning VDZ, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1010, paragraph 21, and, concerning BDVZ, order of 17 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:1011, paragraph 19).
75 Accordingly, it must be held that VDZ and BDZV satisfy the requirement that they represent an appreciable number of undertakings active in the sector concerned.
76 In the second place, regarding the requirement related to the purpose of the association, VDZ’s Articles of Association state that that association has as its purpose in particular ‘to safeguard, promote and if necessary legally enforce the economic, cultural and professional interests of the magazine publishers’. Similarly, BDZV’s Articles of Association state that that association has as its purpose in particular to safeguard the independence of German newspapers, safeguard a level of competition adequate for the profession and to fight unfair advertising as well as all forms of unfair competition.
77 VDZ and BDZV therefore have as their purpose the protection of their members’ interests.
78 In the third place, regarding the question as to whether the present case is liable to raise questions of principle affecting the functioning of the sector concerned with the result that the interests of the members of VDZ and BDZV may be affected to an appreciable extent by the forthcoming judgment, it must be noted that the concerns raised by those associations in their applications to intervene concern, in part, the practical impact of the restrictions at issue on their members. This is the case of the concerns which relate to the activities of the members of VDZ and BDZV that require the use of devices, apps and search services concerned by the Decision to publish news and press articles. Those concerns relate to the sector concerned, which includes press publishers whose economic viability now largely depends on their visibility on the internet. Google’s observations that other concerns relating to activities that are not a priori stated in the Decision, namely those relating to news aggregators such as Google News, does not call into question that finding.
79 From that perspective, the case is liable to raise questions of principle affecting the functioning of the sector concerned and the interests of the members of those associations are liable to be affected to an appreciable extent by the forthcoming judgment.
80 VDZ and BDZV also participated actively in the administrative procedure before the Commission.
81 As associations of undertakings active in the sector concerned, VDZ and BDZV therefore have a direct, existing and definite interest in the Decision not being annulled since that decision seeks to fine and to bring to an end practices that the Commission considers to be abusive and to deny app developers and Google’s rivals the opportunity to innovate and to compete with Google on merit.
82 It follows from the foregoing that VDZ and BDZV can establish an interest in the result of the case and must therefore be granted leave to intervene in the present case in support of the form of order sought by the Commission.
FairSearch’s application to intervene
83 In support of its application to intervene, contested by Google, FairSearch submits, in essence, that it meets the requirements of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union as regards associations of undertakings.
84 First, FairSearch submits that, as an association, it has the power to represent its members in order to encourage economic development, innovation and choice for consumers on the internet. FairSearch also submits that its members, smaller and larger undertakings, are all active in the information and communication technology sector. All those undertakings have in common that they compete with or use Google.
85 Second, FairSearch submits that the interests of its members may be affected to an appreciable extent by the forthcoming judgment since the restrictions at issue had the effect of preventing its members from offering their products and services in an effective manner and from competing effectively with Google. The apps offered by FairSearch’s members were thus affected by the practices identified in the Decision in that those practices reduced the possibilities and the opportunities that can be offered to FairSearch’s members by Google’s competitors.
86 Third, FairSearch denies that it is a ‘dormant’ association, as demonstrated in particular by the active participation of that association, and by the consensus of all its members, during the administrative procedure that led to the Decision, following FairSearch’s first complaint on 25 March 2013.
87 As far as Google is concerned, it submits that FairSearch did not demonstrate that it is a representative association of an appreciable number of undertakings in the sector concerned. In particular, one of its eight members, Buscapé, belongs to another one of its members, Naspers. Similarly, another member, Seznam, has lodged its own application for leave to intervene, which is therefore a duplicate of that lodged by FairSearch, unless Seznam can demonstrate that it has an interest in the result of the case that is different from that of the association of which it is a member (see, to that effect, order of 20 October 2014, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2014:951, paragraphs 79 and 85). In addition, Google recalls that, according to a FairSearch document from 2017, only two members had a right to vote following the exit of Microsoft in 2015: Oracle and Naspers. Contrary to its statements, FairSearch has not therefore established its activity as an association. Lastly, Google disputes the relevance of both the criterion and the role played by FairSearch in the administrative procedure.
88 In the first place, regarding FairSearch’s representativeness, the Court noted that that association has eight members: CEPIC (Center of the Picture Industry), Buscapé, Foundem, Naspers, Oracle, TripAdvisor, Seznam and Yroo. As asserted by FairSearch, all those entities have in common that they compete with or use Google to distribute their products and services. Those members are also all active in the information and communication technology sector.
89 Contrary to Google’s claims, FairSearch can be regarded as representing an appreciable number of undertakings active in the sector concerned. FairSearch brings together entities with different, but complementary activities. While some of its members, such as Naspers or Oracle, are global undertakings, inherently important within the information technology and communication sector, other members have a more focused activity, the characteristics of which can help the association define its position. Those other members include CEPIC, TripAdvisor and Seznam, which, respectively, represent the interests of the picture industry in the case of the first member, offer one of the most downloaded travel apps in the case of the second member and compete with Google on the online search services market in the case of the third member, as well as Foundem, Yroo and Buscapé (an entity in the Naspers group), all three of which offer price comparison services. In addition to those characteristics, FairSearch draws most of its representativeness in the present case from the commonality of all those entities that wish to complain — via FairSearch — about Google’s practices with regard to, in particular, online search services and the various products that can be associated with that activity.
90 In the present case, it must therefore be held that FairSearch satisfies the requirement that it be representative of an appreciable number of undertakings active in the sector concerned. The question of the separate interest in the result of the case held by Seznam, which also applies to intervene in its own name in the present case, will be addressed in the assessment of that application to intervene.
91 In the second place, regarding the requirement related to the purpose of the association, it is apparent from its Articles of Association that FairSearch has as its purpose in particular ‘the promotion of any initiative seeking to encourage economic development, innovation and choice for consumers on the internet, inter alia by favouring and defending competition in online and mobile search and related services’ and ‘the protection and representation of the common moral and material interests of its members vis-à-vis national, European and international organisations’.
92 It is also apparent from the documents included by FairSearch in its application to intervene that that association is active, contrary to Google’s claims, as demonstrated by the appointment of two additional directors on 7 May 2018 and by the power of attorney granted by FairSearch to its lawyers on 19 January 2019.
93 FairSearch therefore has as its purpose the protection of its members’ interests.
94 In the third place, it must be noted that the concerns raised by FairSearch in its application to intervene relate to the practical impact of the restrictions at issue on its members.
95 From that perspective, the case is therefore liable to raise questions of principle affecting the functioning of the sector concerned and the interests of the members of that association, which are particularly critical of the practices referred to in the Decision, are liable to be affected to an appreciable extent by the forthcoming judgment.
96 FairSearch also participated actively in the administrative procedure before the Commission. It is moreover apparent from the Decision that FairSearch is the first complainant, having lodged its complaint with the Commission on 25 March 2013. It is also apparent from the Decision that it repeatedly refers to the contributions made by FairSearch in the administrative procedure or to Google’s responses in that regard. This is the case for the definition of the products and services concerned or for the assessment of the existence of a dominant position or of the restrictions at issue.
97 As an association of undertakings active in the sector concerned, FairSearch therefore has a direct, existing and definite interest in the Decision not being annulled since that decision seeks to fine and to bring to an end practices that the Commission considers to be abusive and to deny app developers and Google’s rivals the opportunity to innovate and to compete with Google on merit.
98 It follows from the foregoing that FairSearch has established an interest in the result of the case and should therefore be granted leave to intervene in the present case in support of the form of order sought by the Commission.
The applications to intervene brought on an individual basis
99 Regarding legal persons other than associations which submit their applications to intervene on an individual basis, it is necessary to refer to the principles defined in paragraphs 42 to 44 above and to distinguish, in the present case, the applications to intervene submitted in support of the form of order sought by Google, namely those of Gigaset, HMD and Opera, from the applications to intervene in support of the form of order sought by the Commission, namely those of Seznam and Qwant.
Applications to intervene of Gigaset, HMD and Opera
100 In support of their applications to intervene, contested by the Commission, the undertakings Gigaset and HMD, two European device manufacturers concerned by the Decision, and Opera — a European undertaking that is a competitor of Google and uses the Android platform to offer its products and services — state, in essence, that they satisfy the requirements laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.
101 As far as Gigaset, whose smart mobile devices all use the Android mobile operating system, is concerned, it submits that its economic activity is directly affected by the Decision. The fact that Android is high-quality, reliable and free and the possibility to obtain access to a complete suite of apps including Google Play (Play Store), Google Search and Chrome at no cost are crucial to the commercial success of its products. Gigaset also submits that it entered into three types of agreement (MAFA, AFA and RSA) with Google, which include, according to the Commission, the restrictions at issue. In that context, Gigaset notes that the abuses found and the requirement that Google bring those restrictions to an end within 90 days of the notification of the Decision have significant consequences for its activity both in terms of its contractual obligations, in particular those of a financial nature, and in terms of the increased risk of fragmentation of the Android platforms.
102 Similarly, HMD, more than 60% of whose net sales were accounted for in 2018 by smart mobile devices using Android, submits that its economic activity is directly affected by the Decision. The commercial strategy of that undertaking involves offering a ‘clean’ version of Android on its devices, comprising that operating system and apps offered by Google (Google Mobile Services app suite), without any other software being added initially to that combination. This enables HMD to update its devices continuously and securely. The free and open nature of Android and Android’s platform-wide compatibility are therefore critical for the commercial development of HMD, allowing it to devote its resources to manufacturing premium devices, rather than having to develop and maintain software in parallel. By characterising certain provisions of the agreements entered into by HMD with Google (MADA and AFA) as abusive, the Decision challenges that ‘ecosystem’ which is beneficial to HMD. HMD’s situation will also be affected by the amendments to those agreements within the EEA as a result of the Decision, with those amendments challenging the essential elements of HMD’s commercial strategy. For that undertaking, the slightest increase in the costs of production will have a particularly detrimental impact on its competitiveness in a highly competitive sector. Similarly, the proliferation of ‘forked’ Android versions as a result of the Decision could lead to a greater degree of unnecessary and unfortunate fragmentation with the result that certain apps would no longer be compatible across the entire Android platform. HMD also invokes its active participation in the administrative procedure.
103 As far as Opera is concerned, it submits that the Android operating system is crucial for its economic activity. Opera states, first, that it has developed a web browser to compete with Google Chrome and an app called Opera News, both of which are available on the Android platform. It also notes that, in 2018, 70 to 80% of its mobile users used Android. In that context, Opera submits that the availability of this free and high-quality system enables manufacturers to develop and deploy their devices and developers to offer their apps. The open nature of this system has also allowed Opera to innovate and to offer different versions of its search engine. For Opera, such opportunities could not have existed without Google taking the risk and devoting significant resources to the development of Android and Google Play. Similarly, unlike Apple’s mobile operating system iOS, which only allows apps to be downloaded, Android allows Opera to pre-install them if it can reach an agreement with a device manufacturer. Opera states in that regard that pre-installation alone accounts for 30% of new users. In this context, by harming the essential elements of the Android ‘ecosystem’ and therefore the elements searched for by Opera users, the Decision directly affects the activity of that undertaking. A return to the situation prior to the Decision is necessary for Opera, which could thus continue to benefit from the attractiveness of the Android platform and from the previously proposed business model. For Opera, there is a risk that the increase in costs relating to the implementation of the Decision will drive certain device manufacturers out of the market, in particular those who have, so far, pushed down prices and offered it the best opportunities to pre-install its apps. Opera also invokes its active participation in the administrative procedure.
104 As far as the Commission is concerned, it submits that the fact that a prospective intervening party is a customer of Google is insufficient, in itself, to establish the right to intervene in a case in which that undertaking challenges the legality of the Decision. It also claims that the form of order sought by Google only indirectly affects the interests of the parties intervening in support of it, through the consequences that the result of the case might have for Google. There is nothing to suggest that the result of this case will modify, with certainty, the contractual rights and obligations of those intervening parties vis-à-vis Google. Similarly, those intervening parties have not established that the Decision obliges them to modify their products and services. The Commission thus claims that the Decision does not have any impact on the economic freedom, and therefore on the commercial activity, of Gigaset, HMD and Opera such as to establish that those undertakings have a direct and existing interest in the form of order sought by Google. In particular, the Commission submits that the annulment of the Decision would not require Google to reinstate the practices characterised as unlawful and that Google’s decision to charge manufacturers of Android devices, such as Gigaset and HMD, license fees for certain Google apps, including the Play Store, is in no way required by the Decision but solely due to an independent commercial decision taken by Google. This reasoning is not affected by the fact that the prospective intervening party is a competitor of Opera, whose participation in the administrative procedure — like that of HMD — is not, in itself, capable of establishing a right to intervene either.
105 As a preliminary point, it must be borne in mind that, in the past, the Union judicature has granted certain undertakings leave to intervene in cases concerning an abuse of a dominant position, in particular where the intervention concerned a current or prospective contractual partner bound in the context of a business relationship the particulars of which are defined, in part, in the contested decision (order of 1 February 2012, SK Hynix v Commission, T‑148/10, not published, EU:T:2012:42, paragraph 49); software developers for which the modifications made to the product referred to in the contested decision to bring an end to the abuse found risked appreciably affecting their activity (order of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraphs 110 and 111); competitors of an undertaking that was found to have abused a dominant position (orders of 7 July 1998, Van den Bergh Foods v Commission, T‑65/98 R, EU:T:1998:155, paragraphs 25 to 31, and of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraphs 90 and 91); and undertakings which had actively participated in the administrative procedure before the Commission (see, inter alia, order of 7 July 1998, Van den Bergh Foods v Commission, T‑65/98 R, EU:T:1998:155, paragraphs 25 to 31).
106 In the present case, it is clear that, having regard to the arguments of Gigaset, HMD and Opera, summarised in paragraphs 101 to 103 above, and to the criteria to which they refer, the commercial strategy and the economic activity of those undertakings are appreciably affected by the Decision.
107 As manufacturers of devices concerned by the Decision, which represent a significant part of their turnover, and as contractual partners of Google when the decision was adopted, Gigaset and HMD are affected by the finding in the Decision which establishes that certain contractual terms of their agreements entered into with Google are the restrictions at issue which Google must bring to an end.
108 The same applies to Opera which, as a competitor of Google Chrome, as a developer of an app available on the Play Store and as a signatory of pre-installation agreements with device manufacturers concerned by the Decision, is dependent on the Android mobile operating system and on its characteristics, namely that it is free and of high quality, in order to reach a significant part of its users.
109 As is argued by those three undertakings, as argued by Google, the modifications made to the Android ‘ecosystem’, for which Google assumed the functions of development and maintenance of the platform as consideration for the abovementioned terms, are capable of undermining their business model and the advantages that they derive from it. As far as the Commission is concerned, it submits that, far from being necessary for the development and maintenance of the Android platform, the restrictions at issue all unreasonably aimed to consolidate Google’s dominant position in the general search market. The outcome of the case will allow that issue to be decided.
110 In that regard, the Commission cannot argue that the characterisation as restrictions at issue of the contractual terms that, according to the abovementioned parties, allowed the free of charge nature and quality of the Android mobile operating system to be preserved and the effects that those characteristics could have on the related products and services, as well as the requirement for Google to bring to an end those practices, are not capable directly and conclusively of affecting the activities of Gigaset, HMD and Opera, which are dependent on Android.
111 It is also relevant to note that HMD and Opera actively participated in the administrative procedure before the Commission.
112 As contractual partners of the fined undertaking or as an undertaking that competes with, but is dependent on that undertaking, Gigaset, HMD and Opera therefore have a direct, existing and definite interest in the annulment of the Decision since that decision seeks to fine and to bring to an end practices that Google considers to be lawful and to promote competition, not to have exclusionary effects and to reflect sufficiently the interests of the device manufacturers, those of the app developers and those of other undertakings within the sector.
113 It follows from the foregoing that Gigaset, HMD and Opera can establish an interest in the result of the case and should therefore be granted leave to intervene in the present case in support of the form of order sought by Google.
Applications to intervene of Seznam and Qwant
114 In support of their applications to intervene, contested by Google, the undertakings Seznam and Qwant — two European undertakings that are competitors of Google — submit, in essence, that they meet the requirements of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.
115 As far as Seznam, which operates, in Europe and in particular in the Czech Republic and in the Slovak Republic, a search engine and a web browser that compete with those of Google (Seznam hledani and Seznam Browser), as well as other services available on the internet (including Stream.cz, Seznam TV, Seznam Email and Seznam Mapy), is concerned, it submits that it has an interest in the result of the case. That undertaking claims, in that regard, that the practices fined in the Decision appreciably affected its economic activity by preventing in particular its search engine from competing effectively with Google Search. Seznam also maintains, more generally, that such practices could be used in other areas in which it is present. Seznam also invokes its participation in the administrative procedure.
116 In that regard, Google points out that, since Seznam argues that Google is not a dominant market player in the Czech Republic or in the Slovak Republic because of its search engine’s presence, the Decision is wrong on this point since it finds that Google has held a dominant position in each national market in the EEA since 2011 and that Seznam cannot therefore argue that it is directly affected by the Decision which should not have covered the two abovementioned markets, the only two in which Seznam is present in Europe. In any event, the considerations of principle raised by Seznam or those relating to other areas are too remote from the findings in the Decision and Seznam, because of its alleged success, cannot claim that the restrictions at issue have harmed it.
117 As far as Qwant, which operates, in Europe and in the rest of the world, a search engine that competes with that operated by Google, is concerned, it claims that it has an interest in the result of the case. In particular, Qwant submits that, if the practices fined in the Decision had not been prohibited, its entire business model would be threatened. Google dominates the entire internet value chain and the combined strength of the control over Android, Chrome, Google Search, YouTube, Google Maps and Gmail puts it in an incontestable dominant position. According to Qwant, the preference given by Google to Google Search by means of certain restrictions at issue significantly restricts its possibilities for expansion, in particular in mobile internet. Qwant also submits that the negative consequences of Google’s abusive behaviour on its economic activity were neither brought to an end by the Decision nor by the modifications made to the restrictions at issue to bring them to an end. Qwant also invokes its active participation in the administrative procedure, in particular through its involvement in the ‘Open Internet Project’, chaired by the president of Qwant, who intervened from March 2017 onwards as a complainant in the administrative procedure.
118 As far as Google is concerned, it acknowledges that Qwant is a direct competitor with regard not only to search engines but also web browsers, with Qwant having developed a browser using Firefox that is available on the App Store for the iOS system. Furthermore, Google submits that Qwant cannot justify a sufficient interest in the result of the case. In particular, the concerns raised by Qwant relating to Google Maps are unrelated to the content of the Decision. Qwant also raises considerations of principle that are too remote from the findings made in the Decision. Similarly, Google’s practices following the adoption of the Decision cannot be covered by the present procedure. Lastly, Google submits that Qwant does not state how the restrictions characterised as abusive have had an effect on its economic activity, since that undertaking does not, moreover, finance the development and maintenance of Android, as is done by the resources generated by Google Search.
119 As a preliminary point, as has already been observed in paragraph 105 above, in the past, the Union judicature has granted competitors of an undertaking that has been found to have abused a dominant position leave to intervene (see orders of 7 July 1998, Van den Bergh Foods v Commission, T‑65/98 R, EU:T:1998:155, paragraphs 25 to 31, and of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraphs 90 and 91).
120 In the present case, it must be stated, in the light of the arguments of Seznam and Qwant that relate specifically to the consequences that the restrictions at issue have had on the strengthening of the dominant position held by Google, through Google Search, in the general internet search market, that those practices are likely to affect and impede the commercial strategy and the economic activity of those undertakings.
121 In accordance with the Decision, as operators in Europe of search engines that compete with Google Search, Seznam and Qwant have experienced the exclusionary effects of Google’s practices, fined by the Commission, which have denied them the chance to innovate and to compete with Google on merit.
122 In that regard, taking account, at this stage, of the findings made by the Commission in the Decision as regards the dominant position held by Google in the different EEA countries and in particular in the Czech Republic and in the Slovak Republic, Google’s argument cannot be accepted in using the assertion made by Seznam concerning its presence in those countries to deny that undertaking an interest in the result of the case.
123 Similarly, it must be held that the interest in the result of the case invoked by Seznam to intervene on an individual basis is separate and independent from that invoked by FairSearch, of which Seznam is a member, since that interest is based specifically on its status as an undertaking that is a competitor of Google and not simply on its status as an undertaking active in the sector concerned (see paragraphs 87 to 90 above). The interests at issue do not therefore coincide.
124 It must also be noted that Seznam and Qwant, which was represented at the time by Open Internet Project — one of the complainants — chaired by the President of Qwant, actively participated in the administrative procedure before the Commission.
125 As undertakings competing with the fined undertaking, Seznam and Qwant therefore have a direct, existing and definite interest in the Decision not being annulled since the Decision seeks to fine and to bring to an end practices that the Commission considers to be abusive and to have denied Google’s rivals the opportunity to innovate and to compete with Google on merit.
126 It follows from the foregoing that Seznam and Qwant can establish an interest in the result of the case and should therefore be granted leave to intervene in the present case in support of the form of order sought by the Commission.
Applications for confidential treatment
127 At this stage, the communication to the intervening parties of the documents served and, if necessary, to be served on the main parties should be limited to a non-confidential version, the wording of which has not yet been finalised as regards the application and the defence. A decision on substance of the requests for confidential treatment will, if necessary, be taken at a later stage in the light of any objections which may be submitted on that issue.
On those grounds,
THE PRESIDENT OF THE THIRD CHAMBER OF THE TRIBUNAL
hereby orders:
1. Application Developers Alliance;
– The Computer & Communications Industry Association;
– Gigaset Communications GmbH;
– HMD Global Oy; and
– Opera Software AS
are admitted to intervene in Case T‑604/18 in support of the form of order sought by Google LLC and Alphabet Inc.
2. The European Consumer Organisation;
– Verband Deutscher Zeitschriftenverleger eV;
– Bundesverband Deutscher Zeitungsverleger eV;
– FairSearch AISBL;
– Seznam.cz, a.s.; and
– Qwant SAS
are admitted to intervene in case T‑604/18 in support of the form of order sought by the European Commission.
3. The registrar shall communicate to the abovementioned intervening parties a non-confidential version of every procedural document served on the main parties as soon as it becomes available.
4. A period shall be fixed for the abovementioned intervening parties to present objections to the applications for confidential treatment that concern them. The decision on whether those applications are well founded is reserved.
5. A period shall be fixed for the abovementioned intervening parties to submit a statement in intervention, without prejudice to the decision of supplementing it later in the light of a decision as to whether the applications for confidential treatment are well founded.
6. The costs are reserved.
Luxembourg, 23 September 2019.
E. Coulon | | S. Frimodt Nielsen |
Table of contents
Background to the dispute and administrative procedure
Administrative procedure before the Commission
Subject matter of the case
Proceedings before the General Court
The applications to intervene
Observations on the applications to intervene and requests for confidentiality
The applications to intervene
The application to intervene made by associations
BEUC’s application to intervene
Applications to intervene of ADA and the CCIA
Applications to intervene of VDZ and BDZV
FairSearch’s application to intervene
The applications to intervene brought on an individual basis
Applications to intervene of Gigaset, HMD and Opera
Applications to intervene of Seznam and Qwant
Applications for confidential treatment