Language of document : ECLI:EU:C:2023:44

ORDER OF THE PRESIDENT OF THE COURT

19 January 2023 (*)

(Appeal – Confidentiality – Information treated as confidential at first instance)

In Case C‑738/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 November 2022,

Google LLC, established in Mountain View (United States),

Alphabet Inc., established in Mountain View,

represented by G. Forwood, J. Killick and N. Levy, avocats, A. Komninos, dikigoros, A. Lamadrid de Pablo, abogado, D. Gregory and H. Mostyn, Barristers, M. Pickford KC, J. Schindler, Rechtsanwalt, and by P. Stuart, Barrister-at-Law,

appellants,

the other party to the proceedings being:

European Commission, represented by F. Castillo de la Torre, A. Dawes, N. Khan and C. Urraca Caviedes, acting as Agents,

defendant at first instance,

Application Developers Alliance,

Computer & Communications Industry Association,

Gigaset Communications GmbH,

HMD global Oy,

Opera Norway AS,

BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV,

Bureau européen des unions de consommateurs (BEUC),

FairSearch AISBL,

Qwant,

Seznam.cz, a.s.,

Verband Deutscher Zeitschriftenverleger eV,

interveners at first instance,

THE PRESIDENT OF THE COURT

having regard to the proposal of K. Jürimäe, Judge-Rapporteur,

after hearing the Advocate General, J. Kokott,

makes the following

Order

1        By their appeal, Google LLC and Alphabet Inc. seek to have set aside the judgment of the General Court of the European Union of 14 September 2022, Google and Alphabet v Commission (Google Android) (T‑604/18, EU:T:2022:541), by which the General Court:

–        annulled Articles 1, 3 and 4 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) (‘the decision at issue’) in so far as they concern the fourth element of the single and continuous infringement, consisting in having made the conclusion of revenue share agreements with certain original equipment manufacturers and mobile network operators conditional on the exclusive pre-installation of Google Search on a predefined portfolio of devices;

–        set the amount of the fine imposed on Google in Article 2 of the decision at issue for the single infringement which it committed at EUR 4 125 000 000, for which Alphabet is to be jointly and severally liable in the amount of EUR 1 520 605 895;

–        dismissed their action as to the remainder.

2        By document lodged at the Court Registry on 30 November 2022, Google and Alphabet requested that the Court of Justice treat as confidential, vis-à-vis the interveners at first instance, Annex A.2 to their appeal, corresponding to the confidential version of the decision at issue, precisely as the General Court treated that same document, contained in Annex A.1 to their application at first instance, as confidential in the proceedings in Case T‑604/18. To that end, Google and Alphabet attached a non-confidential version of Annex A.2 to their request for confidential treatment before the Court of Justice.

3        As Google and Alphabet state, Annex A.2 does indeed correspond to Annex A.1 to their application initiating proceedings before the General Court, for which confidential treatment was granted by the General Court’s order of 23 September 2019, Google and Alphabet v Commission (T‑604/18, not published, EU:T:2019:743).

4        Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. Furthermore, pursuant to Article 172 of those rules, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service of the appeal on that party. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on the parties admitted as interveners before the General Court.

5        However, where a party is requesting, vis-à-vis parties that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis those same parties in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (order of the President of the Court of Justice of 22 March 2022, Google and Alphabet v Commission, C‑48/22 P, not published, EU:C:2022:207, paragraph 5 and the case-law cited).

6        It follows from the foregoing that the request of Google and Alphabet for confidential treatment vis-à-vis the interveners at first instance in respect of the document contained in Annex A.2 to their appeal must be granted. Accordingly, only the non-confidential version of that annex shall be disclosed by the Registrar to those interveners.

On those grounds, the President of the Court hereby orders:

1.      The document contained in Annex A.2 to the appeal of Google LLC and Alphabet Inc. shall be treated as confidential vis-à-vis the interveners at first instance, and only the non-confidential version of that annex shall be required to be served by the Registrar on those interveners.


2.      The costs are reserved.

Luxembourg, 19 January 2023.

A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.