ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
17 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 — Interest in the result of the case — Competitor of the undertaking that is the subject of the contested decision)
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 document lodged at the Court Registry on 7 December 2017, Infederation Ltd, which trades under the name ‘Foundem’ (‘Foundem’) applied for leave to intervene in support of the form of order sought by the Commission.
3 The main parties were notified of the application for leave to intervene. By documents lodged on 23 March 2018, the Commission informed the Court that it had no objections regarding Foundem’s application to intervene, whereas Google stated that it objected to that application. The main parties have requested, pursuant to Article 144 of the Rules of Procedure of the General Court, that certain confidential information in the file not be communicated to Foundem in the event that it is granted leave to intervene.
4 Following a measure of organisation of procedure adopted by the Court, the Commission and Google, on 28 September 2018, submitted revised requests for confidential treatment in relation to the application and the defence and, on 12 October 2018, submitted requests for confidential treatment in relation to the reply and the rejoinder.
The application for leave to intervene
5 In support of its application for leave to intervene, Foundem 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.
6 In that regard, Foundem states that it offers online specialised search services, including a comparison shopping service that is in competition with Google’s own such service. It states, inter alia, that, as from 2009, it has complained to the Commission of the practices that were the subject of the contested decision, in particular by providing data evidencing the impact, on services in competition with that of Google, including Foundem’s service, of the introduction in April 2011 of the Panda algorithm to Google’s general search engine in the United Kingdom. Foundem claims that it played an active role throughout the administrative proceeding leading to the contested decision since, in addition to its initial complaint, it provided the Commission with multiple submissions, of which it provides a number of examples.
7 Google contends that Foundem ceased its commercial activities in December 2016, as stated on its website. Thus, Foundem is not a competitor of Google that is active on the markets concerned by the contested decision. Foundem has not resumed its activities following adoption of the contested decision, it has not announced any plans to do so in the foreseeable future, and it did not participate in the remedy that Google was required to implement by 27 September 2017 pursuant to the contested decision. Google maintains that Foundem’s participation in the administrative proceeding leading to the contested decision is insufficient to establish Foundem’s direct, existing interest in the result of the case and maintains that the same applies to the fact that Foundem has brought an action for damages against Google in the United Kingdom.
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 With respect to an application for leave to intervene submitted by an undertaking, it is necessary, in particular, to ascertain whether that undertaking is directly affected by the contested act and whether its interest in the result of the case is established (see, to that effect, orders of 25 November 1964, Lemmerz-Werke v Haute Autorité, 111/63, EU:C:1964:82, and of 25 February 2003, BASF v Commission, T‑15/02, EU:T:2003:38, paragraph 26).
12 In that regard, undertakings which are in competition, in the affected product markets, with the party that engaged in a practice found in a Commission decision to be contrary to Articles 101 TFEU or 102 TFEU, have a direct and certain interest in the result of a case in which the lawfulness of that decision is at issue, provided that the result may affect, in a sufficiently clear manner, their competitive position (see order of 13 June 1994, Reti Televisive Italiene v Commission, T‑542/93, not published, paragraph 9).
13 In the present case, Foundem claims that it is a competitor of Google on the markets for comparison shopping services on which Google was found, in the contested decision, to have abused its dominant position. That claim is contested by Google as regards the period commencing December 2016 on the ground that Foundem ceased its activities in that field at that time, as is apparent from a screenshot of Foundem’s website adduced by Google. Nevertheless, the infringement found by the Commission in the contested decision relates, for example as regards the United Kingdom which is the Member State where Foundem is established, to the period commencing January 2008 and ending on the date of adoption of that decision, 27 June 2017.
14 It is possible that an undertaking which had to withdraw from the market precisely because of the anti-competitive practices that were the subject of a Commission decision may have a direct, existing interest in that decision’s being upheld since that decision is in principle capable of guaranteeing that undertaking, as far as concerns the penalised undertaking, undistorted conditions of competition allowing it to return to the market.
15 In the present case, Google does not dispute that Foundem operated a comparison shopping service until the end of 2016, and the evidence that Google adduced to prove that Foundem withdrew from the market at that time, which consists of a message from Foundem to internet users, shows, essentially, that Foundem’s withdrawal was due to Google’s practices and that it hoped to return to the market once undistorted conditions of competition had been restored.
16 Those factors, taken into consideration with Foundem’s active participation, which is not disputed, in the administrative proceeding leading to the contested decision, show that the result of the case may affect, in a sufficiently clear manner, Foundem’s competitive position, since annulment of the contested decision could lead to Google reinstating similar practices. It is thus established that Foundem has a direct and certain interest in the result of the case.
17 Accordingly, Foundem is to be granted leave to intervene in support of the form of order sought by the Commission.
Applications for confidential treatment
18 At this stage, the transmission to Foundem of documents that have been served on or, if any, that are to be served on the main parties must be limited to non-confidential versions. A decision on the merits of the applications for confidential treatment shall, should the need arise, be made subsequently, in the light of any objections that may be submitted in that regard.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Infederation Ltd is granted leave to intervene in Case T‑612/17 in support of the form of order sought by the European Commission.
2. The Registrar shall provide Infederation with a non-confidential version of each procedural document served on the main parties.
3. A time limit shall be fixed for Infederation to submit any objections regarding the applications for confidential treatment. The decision on whether those applications are well founded is reserved.
4. A time limit shall be fixed for Infederation to submit a statement in intervention, without prejudice to the possibility of supplementing it later, should the need arise, following a decision on whether the applications for confidential treatment are well founded.
5. Costs are reserved.
Luxembourg, 17 December 2018.