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 20 December 2017, Twenga SA 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 and Google informed the Court that they had no objections regarding Twenga’s application to intervene. Nevertheless, 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 Twenga 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, Twenga 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, Twenga submits, first, that it is directly affected by Google’s anticompetitive practices, which have resulted in a massive loss of visibility of its online comparison shopping service and, therefore, in major financial losses since 2011. Twenga notes, in that respect, that the contested decision refers to evidence of sudden drops of traffic to certain websites that are in competition with that of Google, and, in particular, to Twenga’s websites, following demotions applied by Google’s general search algorithm.
7 Secondly, Twenga submits that it filed a complaint with the Commission, following which it obtained, in 2012, the status of complainant and that it subsequently played an active part in the administrative proceeding leading to the contested decision by contributing to the multiple market tests carried out by the Commission, by expressing its negative views on the commitments offered by Google, and by providing detailed comments on the statements of objections addressed to Google.
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, as noted by Twenga, data from the Sistrix Visibility Index, as described in recital 361 of the contested decision, show that the visibility, in Google’s general search results, of the vast majority of comparison shopping services suddenly dropped after the launch of the Panda algorithm. In that regard, the decline in visibility of Twenga in Google’s general search results is expressly discussed, in relation to the market in the United Kingdom and in France, in recital 361(a) and (c) of the contested decision.
14 In those circumstances, Twenga has established that it has a direct and certain interest in the result of the case given that annulment of the contested decision could lead to Google reinstating similar practices that may affect, in a sufficiently clear manner, Twenga’s competitive position.
15 Accordingly, Twenga is to be granted leave to intervene in support of the form of order sought by the Commission.
Applications for confidential treatment
16 At this stage, the transmission to Twenga 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. Twenga SA 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 Twenga with a non-confidential version of each procedural document served on the main parties.
3. A time limit shall be fixed for Twenga 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 Twenga 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.