ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
8 April 2011 (*)
(Application for leave to intervene – Company failing to establish an interest in the outcome of the case)
In Case T‑292/10,
Monty Program AB, established in Tusby (Finland), represented by C.J. Pouncey, Solicitor, and H. Anttilainen-Mochnacz, lawyer,
applicant,
v
European Commission, represented initially by T. Christoforou, S. Noë and J. Bourke, and subsequently by S. Noë and J. Bourke, acting as Agents,
defendant,
supported by
Software Freedom Law Center, Inc., established in New York (United States), represented by C. Piana, lawyer,
and by
Oracle Corporation, established in Delaware (United States), represented by T. Vinje, Solicitor, D. Paemen and M. Petite, lawyers,
interveners,
APPLICATION for annulment of Commission Decision C(2010) 142 final of 21 January 2010 declaring the proposed concentration whereby Oracle Corporation acquires sole control of Sun Microsystems compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5529 – Oracle/Sun Mircrosystems),
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and procedure
1 By Decision C(2010) 142 final of 21 January 2010, the Commission declared the proposed concentration whereby Oracle Corporation acquires sole control of Sun Microsystems compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5529 – Oracle/Sun Microsystems) (‘the contested decision’).
2 Oracle is a supplier of business software, including middleware, that is, software that connects software components applications, database software, enterprise application software and related services. Sun Microsystems provides network computing infrastructure solutions that include computer systems, software, storage and services. In 2008, Sun Microsystems acquired the open source database MySQL.
3 By application lodged at the Registry of the General Court on 1 July 2010, Monty Program AB, a company established in Tusby (Finland), brought an action, registered as Case T‑292/10, for annulment of Article 1 of the contested decision.
4 By document lodged at the Court Registry on 16 November 2010, Canonical Ltd, a company established in the Isle of Man, sought leave to intervene in Case T‑292/10 in support of the form of order sought by the Commission.
5 By document lodged at the Court Registry on 11 January 2011, the Commission indicated that it had no observations on Canonical’s application for leave to intervene and that it did not intend to request confidential treatment of the documents on the file at that stage.
6 By document lodged at the Court Registry on 12 January 2011, Monty Program requested confidential treatment vis-à-vis Canonical in respect of certain information contained in the application.
7 By separate document lodged at the Court Registry on the same day, Monty Program contended that Canonical’s application for leave to intervene should be refused on the grounds that, first, it did not satisfy the conditions laid down in Article 115(2)(f) of the Rules of Procedure of the General Court and, second, Canonical did not establish a direct and existing interest in the outcome of the case.
Arguments of the parties
8 Canonical states that it produces Ubuntu Linux (‘Ubuntu’), a complete and coherent computer environment that combines software from various sources, including the ‘kernel’ Linux, the overall operating system, the whole user-space environment, utilities, services and an application store with a facility for one-click installation of thousands of applications selected and adapted to work with Ubuntu. The significant amount of resources invested by Canonical in producing Ubuntu covers, inter alia, releasing every 6 months a new version translated into more than 25 languages and integrating hundreds of different software elements designed to work together seamlessly to provide users with a consistent experience and a solid environment for a variety of uses. Canonical also invests a significant amount of resources in marketing Free and Open Source Software (‘FOSS’) as a viable alternative to the services offered by the dominant player in the personal computer market which can interact with Ubuntu. Lastly, the founder and CEO of Canonical participated in the administrative procedure which led to the adoption of the contested decision by sending a letter to the Commission in support of the immediate and unconditional approval of the merger in question.
9 As regards its interest in the outcome of the case, Canonical submits that it is one of the most important FOSS companies in the world. MySQL, Java and Openoffice.org are components of Ubuntu distributed and supported by Canonical. A decision affecting the company managing those products would also affect the products themselves by creating a situation of uncertainty entailing negative consequences for the overall value of Ubuntu and a direct impact on Canonical’s ability to market MySQL-related services to its Ubuntu customers. It follows that, if the form of order supported by Canonical were denied, the overall appreciation of a FOSS solution containing the affected products would suffer even more significantly than in a proprietary environment because of the complex interaction and symbiosis that a product like Ubuntu necessarily has with the upstream providers of the various Ubuntu components. Canonical also has a direct and specific interest in preventing ‘that the business community starts believing that hosting a FOSS project such as Ubuntu or MySQL could be a liability for a commercial company and a risk in case of a merger of a FOSS company … with a company with a relevant market share in Europe’.
10 Monty Program submits that the application for leave to intervene does not meet the conditions laid down in Article 115(2) of the Rules of Procedure and disputes that Canonical has a direct and existing interest in the outcome of the case.
Assessment of the President
11 In accordance with Article 40 of the Statute of the Court of Justice, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of the Statute, any person who establishes an interest in the result of the case has the right to intervene in a case before the General Court.
12 As recognised by established case-law, an interest in the result of a case must be defined, in the light of the precise subject-matter of the dispute, as a direct, existing interest in the ruling on the forms of order sought which the intervener intends to support and not as an interest in relation to the pleas in law or arguments put forward. The ‘result’ of a case is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his interest in the outcome of the case is established (see, to that effect, orders of the President of the Court of Justice in Case C‑186/02 P Ramondín and Ramondín Cápsulas v Commission [2003] ECR I‑2415, paragraph 7; of 6 April 2006 in Case C‑130/06 P(I) An Post v Deutsche Post and Others, not published in the ECR; of 25 January 2008 in Case C‑464/07 P(I) Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others, not published in the ECR, paragraph 5; order of the President of the Grand Chamber of the General Court of 28 November 2005 in Case T‑201/04 Microsoft v Commission, not published in the ECR, paragraph 44).
13 In the present case, without there being any need to determine whether the present application for leave to intervene satisfies the conditions laid down in Article 115(2)(f) of the Rules of Procedure, it is clear that the arguments put forward by Canonical in support of that application are not capable of establishing that it has an interest in the outcome of the case within the meaning of the case-law referred to above.
14 First, it has not been established that the outcome of the present case, in particular the potential annulment by the Court of the contested decision – and thus the denial of the form of order sought by the Commission which Canonical intends to support – could have an adverse effect on Canonical’s business activity of producing and distributing Ubuntu. Indeed, Canonical has neither argued nor established that that activity was subject to any interference before, during or after the administrative procedure which led to the adoption of the contested decision. It is therefore implausible that annulment of the contested decision could have any greater effect on that activity, even if, following a fresh examination, the Commission were to prohibit the merger in question in order to restore the status quo.
15 Second, nor are Canonical’s arguments, which are vague and difficult to understand, alleging uncertainty on the market concerning, inter alia, ownership of FOSS, capable of demonstrating that it has a direct, existing and established interest in the outcome of the case. It is sufficient to note that Canonical has not claimed that, in the past, the marketing of Ubuntu and its components, such as MySQL, Java and Openoffice.org or other FOSS, changed perceptibly as a result of the merger authorised by the contested decision or other events which might affect ownership of that FOSS. It follows that the interest claimed by Canonical is only indirect and abstract and does not depend specifically on the outcome of the present case.
16 Accordingly, in accordance with the form of order sought by Monty Program, Canonical’s application for leave to intervene must be refused.
Costs
17 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings so far as Canonical is concerned, the Court must make an order in respect of the costs associated with its application for leave to intervene.
18 Under Article 87(2) 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. In the present case, since no application has been made for costs, it must be ordered that, first, Canonical is to bear its own costs and, second, the Commission and Monty Program are also to bear their own costs incurred as a result of Canonical’s application for leave to intervene.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. Canonical Ltd’s application for leave to intervene is refused.
2. Canonical Ltd, the European Commission and Monty Program AB shall bear their own costs relating to the application for leave to intervene.
Luxembourg, 8 April 2011.