ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
7 December 2018 (*)
(Competition — Abuse of dominant position — Online general search services and specialised comparison shopping services — Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement — Action for annulment — Intervention — Organisation defending consumer interests — Undertaking — Interest in the result of the case — None)
In Case T‑612/17,
Google LLC, formerly Google Inc., established in Mountain View, California (United States of America),
Alphabet Inc., established in Mountain View, California,
represented by T. Graf, R. Snelders and C. Thomas, lawyers, K. Fountoukakos-Kyriakakos, Solicitor, R. O’Donoghue QC and D. Piccinin, Barrister,
applicants,
v
European Commission, represented by T. Christoforou, N. Khan, A. Dawes, H. Leupold and C. Urraca Caviedes, acting as Agents,
defendant,
APPLICATION for annulment of the Commission Decision of 27 June 2017 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 — Google Search (Shopping)) and, in the alternative, for annulment or reduction of the fine imposed by that decision,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 11 September 2017, Google LLC, formerly Google Inc., and Alphabet Inc. (collectively, ‘Google’) brought an action for annulment and, in the alternative, for variation of the Commission Decision of 27 June 2017 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 — Google Search (Shopping)) in which the Commission found that Google had abused its dominant position on a number of national markets and which accordingly imposed a fine on it (‘the contested decision’).
2 By joint document lodged at the Court Registry on 20 December 2017, Yelp Inc. and Consumer Watchdog, a public interest non-profit organisation established in Santa Monica, California (United States of America), applied for leave to intervene in support of the Commission.
3 The main parties were notified of the application for leave to intervene. On 23 March 2018, the Commission stated that it had no observations to submit in relation to the application to intervene, whereas Google stated that it objected to that application.
Yelp’s application for leave to intervene
4 In support of its application for leave to intervene, Yelp submits, in essence, that it satisfies the conditions for leave to intervene laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, as applicable to undertakings.
5 First, Yelp states that Google, in addition to ‘Google Shopping’, offers a ‘local search service’ that is in competition with that of Yelp. Yelp states, in that regard, that it lodged a complaint and played an active part in the administrative proceeding which led to the contested decision, claiming that Google abused its dominant position by giving preferential ranking to its own local search results whilst relegating rival search services to lower placement in its general search results. Yelp notes that it was recognised by the Hearing Officer of the Commission as an interested third party for the purposes of the proceeding in accordance with Article 13 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 and 102 TFEU (OJ 2004 L 123, p. 18), that it was invited by the Commission to participate in the market test organised to assess the proposed commitments put forward by Google during the proceeding, and that it was sent a copy of the statement of objections and of Google’s response, and provided comments on both documents. Moreover, Yelp maintains that it has been economically affected by Google’s practices and was compelled to stop its ‘international sales’ in Europe and reduce its workforce.
6 Secondly, Yelp submits that the contested decision formally establishes that Google is dominant in the online general search market which is a fundamental element of Yelp’s own complaint that is currently pending before the Commission. Annulment of the contested decision would deprive Yelp of the benefit of that important finding. Yelp adds that its interest is not hypothetical. In a press release, the Commission stated that its ‘Google Shopping’ decision is ‘a precedent which establishes the framework for the assessment of the legality’ of Google’s nearly identical conduct in other specialised search categories. Yelp claims that that statement from the Commission is ‘evidence’ of Yelp’s direct interest in the result of the case.
7 Google contends, however, that Yelp does not satisfy the conditions for leave to intervene as laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. More specifically, Google maintains that Yelp is not active on the market for specialised comparison shopping services, which is the subject of the contested decision. Furthermore, its participation in the administrative proceeding leading to the contested decision is not, in itself, sufficient to establish its interest.
8 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, any person may intervene in a case before the Courts of the European Union, other than a case between Member States, between EU institutions, or between Member States and institutions of the European Union, if that person can establish an interest in the result of the case.
9 It is settled case-law that the concept of an ‘interest in the result of the case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward (orders of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 53, and of 8 June 2012, Schenker v Air France and Commission, C‑589/11 P(I), not published, EU:C:2012:332, paragraph 10).
10 The expression ‘result of the case’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver (order of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 57, and order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 11).
11 In that regard, it is clear from the case-law that, in respect of undertakings, it is necessary to distinguish between applicants for leave to intervene who can establish a direct interest in the ruling on the specific act whose annulment is sought and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and the precise situation at issue in that act (see, to that effect, order of 16 December 2009, Alpiq Csepel v Commission, T‑370/08, not published, EU:T:2009:517, paragraph 12 and the case-law cited).
12 In the present case, Yelp maintains, in essence, that it has a direct interest in the judgment to be delivered given that it operates a local search service which is in competition with Google’s local search service and which provides services that are ‘very similar’ to Google Shopping (which is the subject of the contested decision) and given that the contested decision, as stated by the Commission itself, establishes a framework for the assessment of the legality of Google’s practices in connection with local search services.
13 However, it must be noted that even though both ‘Google Shopping’ and the local search service ‘Google Places’ were the subject of the Commission’s investigation, the contested decision relates only to Google Shopping.
14 In those circumstances, in so far as Yelp does not operate a search service that specialises in comparison shopping results, it cannot be directly affected by the ruling regarding the contested act and thus does not satisfy the criterion laid down in the case-law referred to in paragraph 11 above.
15 As is apparent from the application for leave to intervene, Yelp’s interest in the case at issue lies in the ‘precedent’ established by the contested decision in relation to Google’s other specialised search services and, in particular, in relation to Google’s local search service with which Yelp is in direct competition.
16 Accordingly, Yelp, has not established an interest in the actual result of the case to be set out in the operative part of the final judgment.
17 That conclusion cannot be refuted by the fact that Yelp participated as an interested third party in the administrative proceeding leading to the contested decision. Such participation is not, in itself, capable of establishing that a third party satisfies the conditions laid down in Article 40 of the Statute of the Court of Justice of the European Union for leave to intervene in judicial proceedings before the Courts of the European Union following the administrative proceeding (see, to that effect and by analogy, order of 6 April 2017, Valencia Club de Fútbol v Commission, T‑732/16 R, not published, EU:T:2017:272, paragraph 10).
18 Yelp’s application for leave to intervene must therefore be dismissed.
Consumer Watchdog’s application for leave to intervene
19 In support of its application for leave to intervene, Consumer Watchdog submits, in essence, that it satisfies the conditions for leave to intervene laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, as applicable to organisations defending consumer interests.
20 In that regard, Consumer Watchdog states that it defends consumers’ rights in numerous fora, not only in the United States of America but also in the rest of the world, in collaboration with other well-known consumer protection organisations and in relation to, as the case may be, projects, initiatives and joint schemes, of which it provides a number of examples. It also represents the interests of consumers in judicial or administrative proceedings. With regard to the present case, it states that it actively participated in the administrative proceeding leading to the contested decision. The Commission initially requested its views on Google’s commitment proposals. Subsequently, Consumer Watchdog prepared, inter alia, a study at its own expense showing that Google’s conduct in connection with search services that specialise in comparison shopping results not only affected their competitors, but also had an impact on consumers in so far as their conduct led to higher product prices. Consumer Watchdog states that the Commission welcomed its submissions, as evidenced by letters the Commission sent to it. Consumer Watchdog has also prepared screenshots of Google’s specialised comparison shopping search results following changes implemented by Google in the presentation of such results, which it would like to present to the Court.
21 Consumer Watchdog notes that Article 40 of the Statute of the Court of Justice of the European Union does not lay down any conditions relating to the nationality of interveners and that trade associations from the United States of America have frequently been granted leave to intervene in cases before the Courts of the European Union. In the present case, it submits that its participation in the administrative proceeding leading to the contested decision satisfies the key criterion for establishing its interest in the result of the case. Moreover, since the rules on competition are intended to protect consumers, a group acting with that intention in administrative proceedings relating to the implementation of such rules thereby demonstrates that it represents consumer interests and, accordingly, that it has an interest in the result of the case.
22 Google contends that Consumer Watchdog is not an association. It claims that Consumer Watchdog has no members and, therefore, does not satisfy the specific conditions laid down in the case-law for an association to be granted leave to intervene in a case before the Courts of the European Union. Accordingly, Consumer Watchdog would need to establish that it, itself, has an interest in the result of the case, which it has not attempted to demonstrate. Moreover, even if Consumer Watchdog were to be regarded as an association, it has invoked the interest of consumers in only an abstract and general manner and has failed to establish a direct, existing interest in the result of the case. In that regard, Google makes reference to cases where an application for leave to intervene from a consumer or customer was refused on the ground that that person lacked a direct, existing interest in the result of the case. A fortiori, invocation of the general and abstract interest of consumers by a person which presents itself as their intermediary is insufficient.
23 In assessing Consumer Watchdog’s application for leave to intervene, it is necessary to make reference to the considerations set out in paragraphs 8 to 10 above and to recall that, with respect to associations, the Courts of the European Union allow intervention by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (orders of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66, and of 9 June 2016, Council v Front Polisario, C‑104/16 P, not published, EU:C:2016:443, paragraph 11, and order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).
24 More specifically, an association whose object is to protect consumers may be granted leave to intervene in a case if it represents an appreciable number of consumers concerned, its objects include protecting the interests of those consumers, the case may raise questions of principle affecting those consumers and, therefore, the interests of its members may be affected to an appreciable extent by the judgment to be delivered (see, to that effect, order of 26 October 2017, La Quadrature du Net and Others v Commission, T‑738/16, not published, EU:T:2017:775, paragraph 21 and the case-law cited).
25 The practice of granting leave to intervene to representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members, which cannot be relied on in support of an application for leave to intervene on an individual basis, is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (see order of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66 and the case-law cited).
26 Nevertheless, it should be noted that the questions raised in the case must be sufficiently closely connected to the association’s general object (order of 26 October 2017, La Quadrature du Net and Others v Commission, T‑738/16, not published, EU:T:2017:775, paragraph 22).
27 However, it is apparent that Consumer Watchdog’s situation in the present case cannot be assimilated with that of associations falling within the scope of the preceding paragraphs since it is not an association made up of consumers or an association of such associations. According to its submissions, Consumer Watchdog does nevertheless act in the interest of consumers in the manner set out in paragraph 20 above, inter alia, in the context of judicial or administrative proceedings. In those circumstances, its situation, in relation to whether it may be granted leave to intervene in the present case, can rather be assimilated to that of organisations for the protection of the environment, which, similarly, do not necessarily have affiliated members whose interests are likely to be affected by the result of the case.
28 The Court has previously ruled that, as regards applications for leave to intervene lodged by organisations for the protection of the environment, the requirement for a direct, existing interest in the result of a case relating to the environment means either that the scope of the activities of such organisations must coincide with that of the region and sector concerned by the proceedings before the Court or, where the scope of their activities is wider, that they must be actively involved in protection programmes or studies relating to the region and sector concerned, the viability of which could be jeopardised by the result of the case (see, to that effect, orders of 6 November 2012, Castelnou Energía v Commission, T‑57/11, not published, EU:T:2012:580, paragraph 10, and of 20 October 2014, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2014:951, paragraph 87).
29 Applied by analogy to a consumer protection organisation such as Consumer Watchdog and a case pending before the Court concerning a finding of infringement of the competition rules applicable to undertakings under Articles 101 and 102 TFEU, those criteria mean that the organisation concerned must demonstrate either that the scope of its activities coincides with one or more of the end markets likely to be affected by the conduct that is the subject of the contested decision, within the confines of the consequences, particularly in geographical terms, that could result from the infringements found, or, where the scope of its activities is wider, that it must be actively involved in the prevention or analysis of the conduct that is the subject of the contested decision.
30 In the present case, the Commission found, in the contested decision, an infringement of Article 102 TFEU or Article 54 of the EEA Agreement in Belgium, the Czech Republic, Denmark, Germany, Spain, France, the Netherlands, Austria, Poland, Sweden, the United Kingdom and Norway. Consumer Watchdog states that it was initially active in the United States of America before extending its scope internationally. In that regard, it also states that it participates in numerous international fora and organisations, that point not being contested by Google. Accordingly, Consumer Watchdog falls within the second scenario set out in the previous paragraph and it is necessary to ascertain whether it has established that it is actively involved in the prevention or analysis of the conduct for which Google has been criticised on the national markets listed above and which the Commission found, in the contested decision, to be contrary to the provisions of Article 102 TFEU or Article 54 of the EEA Agreement.
31 Although Consumer Watchdog maintains that it actively participated in the administrative proceeding leading to the contested decision, it must be noted that it is not mentioned in the contested decision either as a complainant or as an interested third party within the meaning of Article 13 of Regulation No 773/2004. While Consumer Watchdog states that it received a letter from the Director General for Competition of the Commission in which he thanked the organisation for its engagement in that proceeding, that document has not been furnished. The only document furnished by Consumer Watchdog in support of its claim that it actively participated in that proceeding is a letter from the Commissioner for Competition. However, the subject matter of that letter of 31 March 2014, which was written in response to a letter that had been sent by Consumer Watchdog to the President of the Commission a few days earlier, concerns only the scope of the powers of the independent monitoring trustee who would have been responsible for verifying that Google complied with its proposed commitments if the proceeding had resulted in the Commission accepting such commitments. Such a subject matter is too narrow for that letter to be capable of establishing that Consumer Watchdog actively participated in the administrative proceeding leading to the contested decision and actively participated in the prevention or analysis of the conduct for which Google has been criticised on the national markets listed in paragraph 30 above.
32 Consequently, Consumer Watchdog has not established a direct, existing interest in the result of the case and its application for leave to intervene must be dismissed.
Costs
33 Under Article 133 of the Rules of Procedure, a decision as to costs shall be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings so far as concerns Yelp and Consumer Watchdog, it is necessary to make an order in respect of the costs relating to their application for leave to intervene.
34 Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Yelp and Consumer Watchdog have been unsuccessful and Google has applied for costs, Yelp and Consumer Watchdog must be ordered to bear their own costs and to pay those incurred by Google in relation to the application for leave to intervene. Since the Commission has not applied for costs, it must be ordered to bear its own costs relating to the application for leave to intervene.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application of Yelp Inc. and Consumer Watchdog for leave to intervene is dismissed.
2. Yelp and Consumer Watchdog shall pay the costs of Google LLC and Alphabet Inc. relating to the application for leave to intervene and bear their own costs.
3. The Commission shall bear its own costs relating to the application for leave to intervene.
Luxembourg, 7 December 2018.