ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
11 April 2019 (*)
(Confidentiality — Challenge by the interveners)
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,
supported by
Computer & Communications Industry Association, established in Washington, DC (United States of America), represented by J. Killick and A. Komninos, lawyers,
intervener,
v
European Commission, represented by T. Christoforou, N. Khan, A. Dawes, H. Leupold and C. Urraca Caviedes, acting as Agents,
defendant,
supported by
Bureau européen des unions de consommateurs(BEUC), established in Brussels (Belgium), represented by A. Fratini, lawyer,
by
EFTA Surveillance Authority, represented by C. Zatschler and C. Simpson, acting as Agents,
by
Verband Deutscher Zeitschriftenverleger eV, established in Berlin (Germany), represented initially by T. Höppner, university teacher, and F. Schaper, lawyer, and subsequently by T. Höppner and P. Westerhoff, lawyer,
by
Federal Republic of Germany, represented initially by T. Henze and J. Möller, and subsequently by J. Möller, acting as Agents,
by
Bundesverband Deutscher Zeitschriftenverleger eV, established in Berlin, represented initially by T. Höppner, university teacher, and F. Schaper, lawyer, and subsequently by T. Höppner and P. Westerhoff, lawyer,
by
Visual Meta GmbH, established in Berlin, represented initially by T. Höppner, university teacher, and F. Schaper, lawyer, and subsequently by T. Höppner and P. Westerhoff, lawyer,
by
Twenga, established in Paris (France), represented by L. Godfroid, S. Hautbourg and S. Pelsy, lawyers,
by
Kelkoo, established in Paris, represented initially by S. Kinsella, Solicitor, and subsequently by J. Koponen and B. Meyring, lawyers,
and by
Infederation Ltd, established in Crowthorne (United Kingdom), represented by A. Morfey, N. Boyle, S. Gartagani, L. Hannah, A. D’heygere, K. Gwilliam and T. Vinje, Solicitors, S. Ford, Barrister, and D. Paemen, lawyer,
interveners,
APPLICATION under Articles 261 and 263 TFEU seeking, principally, annulment of Commission Decision C(2017) 4444 final of 27 June 2017 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement (Case AT. 39740 — Google search (Shopping)) and, in the alternative, annulment or reduction of the fine imposed on the applicants,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court on 11 September 2017, Google LLC, formerly Google Inc., and Alphabet Inc. (together ‘Google’) brought an action for annulment and, in the alternative, for variation of Commission Decision of 27 June 2017 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement (Case AT.39740 — Google search (Shopping)), finding an abuse on their part of a dominant position on a number of national markets and accordingly imposing a financial penalty on them (‘the contested decision’).
2 By document lodged at the Court Registry on 7 December 2017, Infederation Ltd, trading as ‘Foundem’ (‘Foundem’) applied for leave to intervene in support of the form of order sought by the Commission.
3 By document lodged at the Court Registry on 11 December 2017, the EFTA Surveillance Authority applied for leave to intervene in support of the form of order sought by the Commission.
4 Both those applications for leave to intervene, along with those submitted by other applicants for leave to intervene, were served on the main parties. On 23 March 2018, the Commission indicated to the Court that it did not oppose Foundem’s intervention, while Google indicated that it was opposed to it. In any event, the main parties requested, in accordance with Article 144 of the Rules of Procedure of the General Court, that certain confidential information in the case file should not be communicated to Foundem in the event that it is granted leave to intervene. In that respect, they drew up requests with identical content with regard to all of the applicants for leave to intervene, including the EFTA Surveillance Authority.
5 Following a measure of organisation of procedure adopted by the Court, Google and the Commission submitted, in relation to all of the applicants for leave to intervene, revised requests for confidential treatment concerning the application and the defence on 28 September 2018 and subsequently requests for confidential treatment concerning the reply and the rejoinder on 12 October 2018. Those requests are also identical in content with regard to all of the applicants for leave to intervene.
6 By orders of the President of the Ninth Chamber of 17 December 2018, the applications for leave to intervene of, inter alia, Foundem and the EFTA Surveillance Authority were granted. In those orders, the decision as to the merits of the requests for confidential treatment was reserved and a non-confidential version of the procedural documents was sent to the interveners pending the submission of any observations on their part on the requests for confidential treatment.
7 By document lodged at the Court Registry on 15 January 2019, Foundem contested in part Google’s requests for confidential treatment.
8 By document lodged at the Court Registry on 15 January 2019, clarified by a letter lodged at the Court Registry on 25 January 2019, the EFTA Surveillance Authority stated that, as far as it was concerned, the requests for confidential treatment of the Commission and of Google were, in full or in part, devoid of purpose or unfounded. Notwithstanding that, it stated that it was not asking to be provided with the confidential versions of the documents in the case file.
Requests for confidential treatment
9 It must be made clear at the outset that it is only necessary to rule on the revised requests for confidential treatment concerning the application and the defence and the requests for confidential treatment concerning the reply and the rejoinder. The initial requests for confidential treatment concerning the application and the defence were replaced, and the new non-confidential versions of those documents and the accompanying annexes are less restrictive with regard to the interveners than the previous versions, which therefore are no longer of any interest to those parties or to the proceedings (see, to that effect and by analogy, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 31).
Recall of principles
10 Article 144(7) of the Rules of Procedure of the General Court states:
‘If the application to intervene is granted, the intervener shall receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication [by order of the President of the Chamber before which the case is pending, adopted] pursuant to paragraph 5.’
11 That provision lays down the principle that interveners are to receive a copy of every pleading served on the parties and permits only by way of derogation that certain confidential documents or information may be excluded from that communication (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 11 and the case-law cited).
12 In that regard, in the first place, it is clear from settled case-law, the substance of which is reproduced in paragraph 182 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, that the party submitting a request for confidential treatment must accurately identify the particulars or passages to be excluded, that that request must state the reasons for which each of those particulars or passages is regarded as confidential and that failure to provide such information may result in the request being refused by the Court (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 31; of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12; and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 36).
13 The degree of reasoning required may vary depending on the actual nature of each document and item of information concerned, with some being inherently confidential, whereas for others specific reasons must be provided for their confidential nature (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 34; of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 16; and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 40).
14 In the second place, as a rule, the President of the Chamber before which the case is pending must make a ruling only on the confidentiality of the documents or items of information in respect of which that request is disputed (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 36; of 15 June 2006, Deutsche Telekom v Commission, T‑271/03, EU:T:2006:163, paragraphs 11 and 12; and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 46).
15 The objection raised by an intervener against the confidentiality of information in the case file claimed by another party must relate to specific information which is redacted and state the reasons why the confidentiality of that information should be refused.
16 However, in some circumstances the President of the Chamber before which the case is pending may decide to rule on the non-contested aspects of a request for confidential treatment (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 46). That is justified in the present case, in particular given that, by a measure of organisation of procedure, the Court asked the main parties to present revised requests for confidential treatment, since the initial requests concerning the application and the defence appeared, prima facie, to be grossly excessive and insufficiently reasoned. It should be pointed out in that regard that, where confidential treatment is unduly extended, this may not only undermine the rights of the interveners and the clarity of the oral hearing, but also make the Court’s final decision difficult to understand, both for the interveners and for the public. In the present case, it is appropriate to establish that the requirements set out in paragraph 12 above have been respected.
17 Therefore, the requests for confidential treatment examined in the present order which satisfy the requirements set out in paragraph 12 above will be granted, in so far as they concern information in respect of which confidentiality was not contested or was not contested expressly and precisely (see, to that effect, orders of 15 June 2006, Deutsche Telekom v Commission, T‑271/03, EU:T:2006:163, paragraphs 11 and 12, and 14 and 15; of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph14; and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 38).
18 In the third place, with regard to the information in respect of which confidentiality is contested expressly and precisely, it is incumbent on the President of the Chamber before which the case is pending to examine initially whether or not that information is confidential (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 38; of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 15; and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 39).
19 In that regard, as is apparent from paragraph 13 above, a statement of reasons in the request for confidential treatment of information, which is limited to a description of its content may suffice only for information which is inherently confidential. Moreover, even for that type of information, the inherent confidentiality may disappear over time. Thus, it has been consistently held that information which was confidential, but which is at least 5 years old, must for that reason be considered historical and be communicated to the other parties, unless, exceptionally, the party seeking to preserve that confidentiality shows that, in spite of its age, that information still constitutes essential secrets, such as industrial or commercial secrets, disclosure of which would harm that party or the third party concerned (see, to that effect, judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64, and order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 64 and the case-law cited).
20 Moreover, some circumstances may lead to the conclusion that a request for confidential treatment of an item of information in the file is not justified. That is the case, for example, for information which is already public or to which the general public or certain specialist circles have access (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 56, and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 60), for information also in other passages or documents in the case file in respect of which the party seeking to preserve the confidential nature of the information in question neglected to make a request to that effect (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraphs 49 and 53; of 30 April 2013, PT Musim Mas v Council, T‑26/12, not published, EU:T:2013:728, paragraph 32; and of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraphs 25 and 26), for information which is not sufficiently specific or precise to reveal confidential data (see, to that effect, order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 59), or for information which is largely apparent or may be deduced from other information which is legitimately available to the interested parties (see, to that effect, order of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraph 54 and the case-law cited).
21 In the fourth place, where the examination leads the President of the Chamber before which the case is pending to conclude that information in the case file in respect of which confidential treatment is expressly and precisely contested is in fact confidential, it is incumbent on the President to strike a balance between the legitimate interest of the party seeking to have that confidentiality preserved in not having those secrets disclosed and the equally legitimate concern of the parties seeking to have that confidentiality withdrawn in having the information necessary for the purpose of being fully in a position to assert their rights and to state their case before the EU courts (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 42; of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 18; and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraphs 42 and 43).
22 Finally, it should be made clear that acceptance of a request for confidential treatment, in accordance with the conditions set out in paragraph 17 above, or following the more detailed examination set out in paragraphs 18 to 21 above, does not prevent an intervener from using the information concerned in the context of its intervention if it turns out that that information appears elsewhere in the case file which it received (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 59 and the case-law cited). If an intervener lawfully became aware of such information by any other means, it may also use it, as appropriate, in order to support its position, under its own responsibility having regard to the limitations on using that information which may be imposed upon it, for example as a result of obligations arising from professional secrecy or confidentiality agreements.
The observations of the EFTA Surveillance Authority
23 In the present case, it is appropriate to respond, in the first place, to the observations of the EFTA Surveillance Authority which raise issues connected with the specific position of that authority in the context of the administrative procedures leading to decisions from the Commission, such as the contested decision, finding an infringement of the competition rules laid down in the European Economic Area Agreement. In the contested decision, the Commission found that there was an infringement of Article 54 of that agreement.
24 The EFTA Surveillance Authority states that in those administrative procedures, by virtue of Articles 58 and 109(2) of the European Economic Area Agreement and certain provisions of Protocols 23 and 24 annexed thereto, it must cooperate with the Commission and be involved in the procedure. In particular, in Protocol 23, relating to cooperation between surveillance authorities for the application of the competition rules, Article 1(2) makes provision for such cooperation between the EFTA Surveillance Authority and the Commission in individual cases, Article 9(1) provides that the EFTA Surveillance Authority and the Commission are to have the power to provide one another with, and use in evidence, any matter of fact or of law, including confidential information, and Article 10(2) and (3) provides that although the obligations of professional secrecy apply to officials of both authorities and to other persons working under their supervision, that does not prevent exchanges of information between them as set out in that protocol. In essence, there should be no secrets between the EFTA Surveillance Authority and the Commission during the administrative procedure, save that they both must respect the duty of professional secrecy as regards third parties.
25 Therefore, the EFTA Surveillance Authority has either already received the information in respect of which the Commission has sought confidential treatment in the present case, including in relation to itself, or it could obtain that information. Thus, in so far as they concern the EFTA Surveillance Authority, the Commission’s requests for confidential treatment should be declared devoid of purpose or, in any event, unfounded. With regard to Google’s requests for confidential treatment, they should receive the same response to the extent that they relate to information which the EFTA Surveillance Authority already has in its possession or which it could obtain from the Commission.
26 Notwithstanding that, the EFTA Surveillance Authority concludes by stating that, for reasons of procedural economy, it is not asking to be served with the confidential versions of documents in the case file and that it will avoid referring to confidential information in its observations.
27 However, the rules for the protection of confidential information applicable to the administrative procedure leading to a Commission decision adopted in the context of its powers as a competition authority are independent of the rules for the protection of confidential information applicable to judicial proceedings before the Court. The latter rules are laid down in the Rules of Procedure and in the Practice Rules for the Implementation of the Rules of Procedure. The European Economic Area Agreement does not contain any exception in that respect.
28 It must be pointed out that, although the rules for the protection of confidential information applicable to the administrative procedure leading to a Commission decision adopted in the context of its powers as a competition authority make provision for a special position for other competition authorities, such as the EFTA Surveillance Authority, the rules which apply to judicial proceedings before the Court do not make provision for any such special position. Where, as in the present case, the question at issue is the extent of the information in the case file to which the interveners may have access, the only distinction laid down in the Rules of Procedure, as is apparent from Article 144(2), (5) and (7) thereof, is between main parties and interveners, regardless of the status of those different parties. Moreover, the President of the Chamber called upon to rule on the requests for confidential treatment pursuant to Article 144(5) of the Rules of Procedure is not bound by decisions which may have been taken on the issue during the administrative procedure.
29 It follows that, in the present case, since Google and the Commission applied for confidential treatment of information in relation to all the interveners, the EFTA Surveillance Authority is subject to the same requirements as the other interveners if it wishes to be exempted from all or part of that treatment. Those conditions were recalled in paragraph 15 above.
30 The EFTA Surveillance Authority has not satisfied those requirements because it has not identified precisely the items of information in respect of which confidential treatment should not be raised against it. In particular, it does not indicate which administrative procedural documents it already has in its possession, bearing in mind that nothing in Protocol 23, annexed to the European Economic Area Agreement, suggests that the entire administrative file is necessarily already in that authority’s possession. The EFTA Surveillance Authority further states that it could obtain from the Commission additional information stemming from that file.
31 It may be stated further that the file in the case before the Court is not limited to the administrative file to which the EFTA Surveillance Authority may have access via the Commission.
32 In those circumstances, the observations of the EFTA Surveillance Authority cannot be acted upon.
33 Notwithstanding that, it should be pointed out that the EFTA Surveillance Authority may use information in its possession subject to the conditions set out in paragraph 22 above.
The requests for confidential treatment which are not contested by Foundem
34 Bearing in mind what is stated in paragraph 12 above concerning the requirements relating to the submission of and the reasoning in requests for confidential treatment, and the provisions of Article 144(5) of the Rules of Procedure according to which the President of the Chamber before which the case is pending is to give a ruling, where appropriate, on the release of data to the interveners where it is claimed that those data are confidential, it is necessary in the present case, as was stated in paragraph 16 above, to ascertain first of all whether the requests for confidential treatment which are not contested by Foundem satisfy those requirements (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraphs 46). Of those requests, it is necessary to reject the ones which, in themselves, manifestly do not satisfy the above mentioned requirements.
35 Google’s revised requests for confidential treatment concerning the application, the defence and the accompanying annexes call for the following observations. Those requests are submitted in the form of a table with two columns. The first refers to the procedural documents or the relevant passages and must be read in conjunction with the non-confidential versions of those documents in which the requested redactions appear. The combination of both those elements makes it possible to identify precisely the extent of the requests for confidential treatment. Save for the exception identified below, the second column sets out the reasons why each of those items of information or passages is confidential, and in some cases it contains a number of alternative reasons covering various types of information which appear several times in certain annexes. However, reasons are only partially provided in respect of Annex A12. Although the request to redact the names of natural persons in that annex in itself constitutes a reason, given the nature of the information covered, the rest contains purely tautological reasoning which merely states that the information at issue is confidential, which does not constitute a reason to justify such a description.
36 It is therefore appropriate to grant Google’s revised requests for confidential treatment not contested by Foundem in relation to the application, the defence and the accompanying annexes, limited, however, with regard to Annex A12, to the redaction of the names of natural persons.
37 The Commission’s revised requests for confidential treatment concerning the application, the defence and the accompanying annexes call for the following observations. Those requests are submitted in the form of a table with four columns. The first refers to the procedural documents or the relevant passages and must be read in conjunction with the non-confidential versions of those documents in which the requested redactions appear. The combination of both those elements makes it possible to identify precisely the extent of the requests for confidential treatment. The second column specifies the nature of the information for which confidentiality is sought, the third contains a justification of the confidential nature of each item of information or passage and the fourth gives a non-confidential overview of the passage concerned, or, if the document or passage concerned is fully redacted, a statement to the effect that a non-confidential version cannot be provided. The items identified in the three columns, where appropriate taken together, appear sufficient to constitute a statement of reasons justifying the confidential nature of the information concerned, save for the exceptions set out below.
38 Only very partial reasoning is provided for the request for the total redaction of Annex A57, which consists of a letter informing a complainant of the Commission’s intention to reject that party’s complaint. Apart from the redaction of the complainant’s name, none of the other information in that document is covered by a reasoned request.
39 The request to redact the number of comparison shopping services in Annex A63, Section 6.A., footnote 20, and Section 6.B., fourth paragraph, which responded to the Commission’s requests for information identified in the statement of objections, cannot be justified solely on the ground that the information at issue is neither public, nor known to third parties. That is not, in itself, sufficient to demonstrate the confidential nature of such information. The same reason provided for the request to redact footnote 24, connected with Section 6.B., giving the reference of a question in a request for information from the Commission, is likewise insufficient in view of the information at issue. It should be pointed out that the reasons provided by Google for its requests for confidential treatment for the same annex do not cover that information.
40 The request for the total redaction of Annex A138, which is described as a response to a request for information from the Commission, cannot be justified solely on the ground that the author of that response did not respond to the Commission’s request to find out whether that response could be communicated. Such reasoning makes no reference whatsoever to the content of the document at issue, nor indeed to the fact that it was protected during the administrative procedure. Moreover, at the beginning of the complete version of that document, the words ‘Non Confidential Response’ appear, and a number of short passages in it are replaced with the words ‘Business Secrets’, which suggests that the confidential items are already protected. Nevertheless, only the redaction of the information in Annex A138 which makes it possible to identify a natural person may be accepted, bearing in mind the nature of that information, even though a specific statement of reasons is not provided to that effect.
41 The request to redact the name of an undertaking in footnotes 56 and 59 of the defence, even though the information contained in those footnotes consists of general considerations, cannot be justified solely on the ground that that undertaking, the author of those considerations, did not respond to the Commission’s request to find out whether its identity could be communicated. In no way does such reasoning indicate why the name of that undertaking should remain secret. The request to redact the name of the same company from the heading of Annex B19, which also appears in the schedule of annexes, for the same single reason, even though that heading states only that that annex relates to that undertaking’s response to a request for information from the Commission, cannot be justified either, for the same reason.
42 Furthermore, the request for the total redaction of Annex B19 itself calls for observations identical to those set out in paragraph 40 above with regard to Annex A138.
43 It is therefore appropriate to grant the Commission’s revised requests for confidential treatment not contested by Foundem in relation to the application, the defence and the accompanying annexes, save for the following exceptions. With regard to Annex A57, the confidentiality must be limited to the redaction of the name of the addressee of the letter constituting that annex and the information which might make it possible to identify that addressee. With regard to Annex 63, Section 6.A., footnote 20, and Section 6.B., fourth paragraph, the redaction of the number of comparison shopping services which responded to the Commission’s requests for information, identified in the statement of objections, must be refused. With regard to Annex A63, Section 6.B., footnote 24, the redaction of the reference of a question in a request for information from the Commission must be refused. With regard to Annex A138, the confidentiality must be limited to the redaction of the name of the natural person mentioned therein and of the information which might make it possible to identify that person. The redaction of the name of an undertaking in footnotes 56 and 59 of the defence and in the title of Annex B19 must be refused. With regard to Annex B19, the confidentiality must be limited to the redaction of the name of the natural person mentioned therein and of the information which might make it possible to identify that person.
44 Google’s requests for confidential treatment concerning the reply, the rejoinder and the accompanying annexes are submitted in the same format as its revised requests for confidential treatment concerning the application, the defence and the accompanying annexes. They satisfy the requirements relating to submission and reasoning set out in paragraph 12 above, save for the following. First of all, it must be stated that the reasoning provided for the requests for confidentiality concerning Annexes C20 and C21 does not correspond to the nature of the information which is actually redacted in the non-confidential version of those annexes. However, that information would make it possible to identify natural persons, as is evident by merely examining that version which was communicated to the interveners. That is why, given the nature of that information, those requests for confidential treatment may nevertheless be accepted, even though specific reasons are not provided in relation to those requests. Next, the request to redact the names of the agents representing the Commission in the present case, when the rejoinder was signed, clearly stems from an error.
45 It is therefore appropriate to grant Google’s requests for confidential treatment not contested by Foundem in relation to the reply, the rejoinder and the accompanying annexes, save for the names of the agents representing the Commission, accompanying the signatures in the rejoinder.
46 The Commission’s requests for confidential treatment not contested by Foundem, concerning the reply, the rejoinder and the accompanying annexes are submitted in the same form as its revised requests for confidential treatment concerning the application, the defence and the accompanying annexes. They satisfy the requirements relating to submission and reasoning set out in paragraph 12 above and may therefore be granted.
The requests for confidential treatment which are contested by Foundem
47 Foundem states at the outset that it is not asking for the withdrawal of the confidentiality of the names of natural persons.
48 Foundem requests, first, the withdrawal of the confidentiality of the redacted passages in paragraphs 80 and 81 of the application and the confidentiality of Annex A14. Google’s reason for the redaction of that information was that it reveals confidential aspects of its technical infrastructure, of its procedures for selecting its search results and of its methods for evaluating technical developments. Although some of the information concerned is relatively old, it is still relevant to Google’s current activities. For its part, Foundem states that that information dates back around 10 years and that access to that information would enable it to understand better the distinction between a search result which may be relevant and a search result which may be the most relevant.
49 In accordance with what is set out in paragraphs 18 to 21 above, it is necessary to ascertain initially whether the information at issue is confidential in view of the reasons provided by Google. If the answer is affirmative, it is appropriate then to examine whether, as part of the process of weighing up the competing interests, Foundem should nevertheless be given access to that information. The same will be done in the remainder of this order with regard to the other information in respect of which confidential treatment is contested.
50 With regard to paragraph 80 of the application, only the technical element associated with Universal Search (a mechanism which enables Google to rank its generic search results and its specialised search results within the same general results page) is confidential. That element is still in current use. The other information which Google wishes to have redacted in paragraph 80 of the application, in its last two sentences, by contrast, does not provide anything more substantive than what already appears without redaction in the text of the non-confidential version of that paragraph or of the related footnotes, or than what may easily be inferred from it. That other information is therefore not confidential.
51 It is not necessary for Foundem to have knowledge of the technical element associated with Universal Search for it to set out its position, as appropriate, with regard to Google’s explanation that Universal Search, by making it possible to compare the relevance of its generic search results against that of its specialised search results and therefore to determine the layout of its display of both sets of results, contributes to an improvement in the quality of its search engine, which is covered by that part of the application in which the information in question appears. In general, knowledge of that technical element does not appear to be necessary in order to take a position on the Commission’s competitive analysis in the contested decision.
52 In paragraph 81 of the application, the redacted information in the first sentence effectively reveals a process that makes it possible to produce Google search results by applying Universal Search. It is therefore confidential. On the other hand, the last sentence, which is also redacted in the non-confidential version, does not contain any substantive information in addition to what appears already in the non-redacted part of that paragraph and of paragraph 40. It is therefore not confidential. Nevertheless, it should be made clear that footnote 55, related to that sentence, which reveals the technical element associated with Universal Search, must, by contrast, remain confidential.
53 In addition, it is not necessary for Foundem to have knowledge of the process which makes it possible to produce Google search results by applying Universal Search for it to set out its position, as appropriate, with regard to Google’s explanation that Universal Search makes it possible to compare the relevance of its generic search results against that of its specialised search results, and, more generally, on the competitive analysis in the contested decision.
54 Annex 14, which is already redacted in the non-confidential version provided by Google, contains details about the technical element associated with Universal Search, already raised in paragraph 50 above. Therefore, it is genuinely confidential. In the present case, a partially redacted version retaining the trade secrets would be incomprehensible, so much so that its total redaction appears justified.
55 For the same reasons as those set out in paragraph 51 above, withdrawing the confidentiality of Annex 14 for the benefit of Foundem is not necessary.
56 Next, Foundem requests the withdrawal of the confidentiality of the redacted passages in paragraph 120 of the application and in footnotes 101 to 105, and of the confidentiality of Annex A44. Google’s reason for the redaction of those items was that they reveal information on the way in which it tests its technologies, and on one test in particular. That information is still up-to-date. Annex A44 comprises a chain of e-mails alluding to the tests concerned. In support of its request to have confidentiality withdrawn, Foundem advances the same argument as the one set out in paragraph 48 above and states that the methods and tests at issue are more than 10 years old, whereas the methods for testing technologies have evolved significantly since then.
57 In paragraph 120 of the application, the redacted passage merely provides a concrete illustration of what was stated, without being redacted, at the start of that paragraph, that is to say, that Google compared its specialised search results for purchasing products with those of competing comparison shopping services. The redacted passage gives an account of three comparative tests carried out in 2007 and 2008, indicating in particular which competing services were taken into consideration, and of an assessment from 2007, indicating which of those was then perceived as the reference. Contrary to what Google argues, that passage does not provide any information on the way in which it tests its technologies in addition to what is already stated elsewhere, and consequently, in that respect, it is not confidential. Similarly, the reference to the names of competitors whose services were compared to Google’s services more than 10 years ago is not confidential. Footnotes 102 to 105, which merely set out the documentary references of those tests and that assessment by referring to the appropriate annexes, are likewise not confidential.
58 By contrast, footnote 101 actually gives details of a testing method used by Google to measure the reaction of internet users to different search results presentations. There is no evidence that that method is obsolete or is no longer used by Google. Those details thus fall within the scope of trade secrets, even though that method is referred to as ‘the de-linking experiment’ in paragraph 76 of the non-confidential version of the defence, as Foundem states. Annex A44, which is entirely redacted in the non-confidential version of the annexes, reproduces the detailed analysis of a test which, although it dates from 2009, gives information about the method used. Therefore, it is also confidential. In the present case, a partially redacted version retaining the trade secrets would be incomprehensible, so much so that its total redaction, apart from the essential part of its title which appears in the schedule of annexes, is justified.
59 It is not necessary for Foundem to have knowledge of the method referred to in paragraph 58 above for it to set out its position, as appropriate, with regard to the relevance and probative force of two comparative evaluations put forward by Google in order to show that it in fact applied the same standards of relevance, that is to say, display, to the generic search results and to the specialised search results, which is covered by that part of the application in which the information in question appears. The non-redacted information in the application and the defence, and the non-confidential version of Annex A43 which makes it possible to understand the nature of those comparative evaluations is sufficient in that respect. Similarly, it is not necessary to have knowledge of the redacted information in order to take a position on the competitive analysis used in the contested decision.
60 Foundem also requests the withdrawal of the confidentiality of redacted paragraphs 181, 182 and 184 in the application, of the confidentiality of footnotes 170 to 174 and of the confidentiality of Annexes A75 and A76. Google’s reason for the redaction of those items is that they reveal secrets concerning its revenue and the internal allocation of that revenue. Foundem states that access to information on the internal allocation of Google’s revenue would enable it to support the Commission fully in its response to Google’s argument that advertising in the Shopping Units (illustrated grouped advertising for products appearing on Google’s general results page) do not benefit the specialised comparison shopping website, Google Shopping. Foundem makes it clear that it does not seek access to information on the income itself.
61 The redacted passages from paragraphs 181, 182 and 184 in the application identify which internal allocation of revenue is taken from advertising in the Shopping Units and which is taken from the specialised website, Google Shopping. The content of Annexes A75 and A76 also do this. The last sentence of footnote 174 also provides information in that respect. Those items of information, which relate to recent periods, are trade secrets. By contrast, footnotes 170 to 173 and the beginning of footnote 174 are merely references to procedural documents which, in themselves, contain nothing confidential.
62 It is not necessary for Foundem to have knowledge of the confidential information identified in paragraph 61 above for it to set out its position, as appropriate, on the issue, discussed in that passage of the application, whether the advertising in the Shopping Units benefits the specialised comparison website, Google Shopping, on the ground that that advertising provides financial revenue to that website and its position on the impact which that issue may have on the case. First, in the relevant non-redacted passages of the application, Google states that the revenue generated by that advertising does not revert to that website and, secondly, Foundem may set out its meaningful position on the question at issue and on the Commission’s competitive analysis of that question in the contested decision, both in the event that Google’s assertion is accurate and in the event that it is not.
63 With regard to the application and the accompanying annexes, it is therefore appropriate to reject the requests for confidential treatment relating to the last two sentences in paragraph 80, the last sentence in paragraph 81, the redacted passage in paragraph 120, footnotes 102 to 105 and 170 to 173, and the reference to a procedural document at the beginning of footnote 174.
64 Foundem also requests the withdrawal of the confidentiality of paragraphs 66 to 75 in the defence, of the confidentiality of footnotes 8 and 10, and of the confidentiality of Annexes B3 and B4. Google’s reason for the redaction of those items is that they reveal information on its new product developments and the way in which it tests those products. In particular, Annexes B3 and B4 consist of two reports on possible changes in the presentation of the specialised search results for purchasing goods, revealing the method for a test and its specific results. For its part, Foundem states that access to that information would enable it to comment better on Google’s assessment of its generic search results compared with the results from competing comparison shopping services. It states that Annexes B3 and B4 relate to old tests dating back to 2009 and that none of the interveners offers a generic search service on the internet.
65 The partial redaction of paragraph 66 of the defence is not justified inasmuch as the information concerned, which relates to the existence of two comparative evaluations put forward by Google in order to show that it applied the same standards of relevance, that is to say, display, to the generic search results and to the specialised search results, appears in paragraphs 116 and 117 of the non-confidential version of the application. For the same reason, the partial redaction of paragraph 67 of the defence is not justified either. Furthermore, footnote 8, related to paragraph 67, in itself contains no confidential information, as it merely refers to annexes. The withdrawal of the confidentiality of that footnote and of the confidentiality of paragraph 72 of the defence (see paragraph 69 below) means that the title of Annex B3 must not be redacted in the non-confidential version of the schedule of annexes to that pleading.
66 The partial redaction of paragraph 68 of the defence is justified only with regard to the name and status of a Google employee, since the sentence in question merely introduces, in a comprehensible way, the non-redacted quotation which appears thereafter. Footnote 10, related to paragraph 68, in itself contains no confidential information, as it merely refers to annexes. The withdrawal of the confidentiality of that footnote means that the title of Annex B4 must not be redacted in the non-confidential version of the schedule of annexes to that pleading.
67 The partial redaction of paragraph 69 of the defence is not justified, since the information in question concerning one of the comparative evaluations put forward by Google appears in or is derived from Annex 43, which is not confidential.
68 The redaction of paragraphs 70 and 71 of the defence is not justified because it contains only an assessment by the Commission of an argument from Google which itself cannot, at this time, be regarded as a trade secret since it is based on what Google concluded about the general assessment by the public of its specialised search results for purchasing goods, which featured among its services provided to the public in the countries concerned only until 2013.
69 In addition, the redaction of paragraphs 72 to 74 of the defence is not justified. Although the passages in question reveal the assessments from internet users of the respective usefulness of Google’s specialised search results for purchasing goods and its generic search results formulated in two evaluations referred to in paragraph 65 above, that information dates back to 2009 and concerns, as was stated in paragraph 68 above, a service that was abandoned in 2013. In that respect Google has not put forward any arguments to justify the assertion that that information, despite its age, still constitutes a trade secret.
70 The redaction of paragraph 75 of the defence is not justified for the same reason as the one set out in paragraph 68 above with regard to paragraphs 70 and 71 of that pleading.
71 With regard to Annex B3, which is fully redacted in the non-confidential version of the annexes and which consists of an internal analysis of the two comparative evaluations put forward by Google, the withdrawal of confidentiality from that annex could reveal analysis methods used outside the context which led to the formulation of those evaluations. Therefore, it is confidential. In the present case, a partially redacted version retaining the trade secrets would be largely incomprehensible, so much so that its total redaction, apart from its title which will have to appear in the schedule of annexes, appears justified.
72 Moreover, it is not necessary for Foundem to have knowledge of Annex B3 for it to set out its position, as appropriate, with regard to the relevance of Google’s reliance on the evaluation at issue, since the results of that evaluation will be widely known, in view of the withdrawal of the confidentiality of paragraph 72 of the defence.
73 Annex B4 consists of a series of internal e-mails to Google retracing very detailed exchanges concerning one of the two comparative evaluations put forward by Google. Its non-confidential version redacts the names of the natural persons and some passages in those exchanges. Those passages may reveal ways of working and analysis methods used outside the context which gave rise to that evaluation. In those circumstances, it must be stated that the redacted information in the non-confidential version of Annex B4 is confidential.
74 It should be pointed out that the passage in that annex, cited in paragraph 68 of the defence in support of the Commission’s argument presented in that paragraph, is not part of that redacted information. Therefore, it is not necessary for Foundem to have knowledge of the redacted information for it to set out its position with regard to the relevance of Google’s reliance on the comparative evaluation at issue or, in general, the Commission’s competitive analysis in the contested decision.
75 With regard to the defence and the accompanying annexes, it is therefore appropriate to reject the requests for confidentiality in relation to paragraphs 66 to 75, footnotes 8 and 10, and the title of Annexes B3 and B4 in the schedule of annexes.
76 Finally, Foundem requests the withdrawal of the confidentiality of the redacted passages in paragraphs 107 to 109, 112 and 113 and footnotes 47, 48 and 52 of the reply, and of the confidentiality of Annexes C6 to C9. With regard to the latter, which support Google’s first plea for annulment, Google redacted all the data which they contain by revealing, in the non-confidential version of the annexes, only the outlines of the tables in which those data appear and, if appropriate, the titles of the columns, on the ground that those data would provide precise details of: (1) the appearance and positioning in its general results page of the Product Universals (grouped specialised search results for purchasing goods) and competing comparison shopping services; (2) the activation by users of the internet links concerned, and (3) the number of visits to its specialised search shopping site, Google Shopping. Those data reveal methodologies that are still in use. In that regard, Foundem states that it does not quite understand how data concerning the years pre-dating 2013 could still be confidential. With regard to passages redacted from paragraphs 107 to 109, 112 and 113 of the reply and from footnotes 47, 48 and 52 in support of its second plea for annulment, Google argues that they reveal its revenue and the internal allocation of that revenue, or, as regards paragraph 113, the processes for displaying specialised search results for products. For its part, Foundem states that the redacted information contains key elements for assessing to what extent the advertising in the Shopping Units benefits the specialised comparison shopping website, Google Shopping.
77 Annex C6 sets out, for different Member States over periods from no earlier than January 2008 to January 2013, the appearance proportion (triggering rate) of the Product Universals in the first 20 positions of Google’s general search results pages following a query from an internet user in relation to a product. Although those data could have constituted trade secrets at that time, they cannot be so today, even though they are accurate, since the Product Universals did not figure among the services provided by Google to the public until 2013.
78 Annex C7 sets out the number of appearances of Product Universals, of competing comparison shopping services and of both on the first page of Google’s general results in various Member States for periods from no earlier than December 2009 to February 2013. For the same reasons as those set out in paragraph 77 above, those data do not constitute trade secrets today. Contrary to what Google argues, they do not reveal any methodology, except that they illustrate that at the time, according to Google, its choices resulted in those comparison services appearing more often than the Product Universals, which is stated in the non-redacted part of paragraph 78 of the reply.
79 Annex C8 sets out for the period from December 2009 to September 2010 the number of cases in which, following a request from an internet user in Germany or the United Kingdom relating to a product, no Product Universal appeared respectively at the top, in the middle or at the end of the general results page, when a comparison shopping service competing with Google’s appeared in the first three generic results of that page. For the same reasons as those set out in paragraphs 77 and 78 above, those data do not constitute trade secrets today.
80 Annex C9 sets out for the years 2007 and 2008 the number of visits to the specialised website, Google Shopping, in Germany and the United Kingdom. Although those data may have constituted trade secrets at the time, they do not do so today given the passage of time.
81 On the other hand, the redacted passages in paragraphs 107, 108 and 112, and in footnotes 47, 48 and 52 of the reply reveal in essence the information already redacted in paragraphs 181, 182 and 184 of the non-confidential version of the application. In addition, for the same reasons as those set out in paragraph 62 above, there is no reason to grant Foundem access to them.
82 By contrast, paragraph 109 of the reply does not contain any information which is not revealed elsewhere, in particular, as is stated in paragraph 62 above, the fact that the revenue generated by the advertising in the Sopping Units does not revert to the specialised website, Google Shopping. The request for confidentiality concerning that paragraph is therefore not justified.
83 With regard to paragraph 113 of the reply, its redacted passages provide information on types of learning processes. The information at issue thus constitutes trade secrets, knowledge of which is not necessary in order for Foundem to adopt a position on the argument set out in that paragraph of Google’s reply according to which it uses different learning models in order to calculate the predicted activation rates of users of internet links in the Shopping Units and on the Google Shopping website, and according to which it follows that the traffic from the former is not used in order to improve the latter. In the present case, access to the information at issue on the types of processes would no more make it possible to give credence to Google’s assertion than to dispute it.
84 With regard to the reply and to the annexes, it is necessary therefore to reject the requests for confidentiality relating to paragraph 109 and to Annexes C6 and C9.
85 Foundem does not contest the requests for confidential treatment concerning the rejoinder and the accompanying annexes.
Disclosure to the interveners of the information held not to have warranted confidential treatment and its use
86 In the present dispute, the main parties did not request specific confidential treatment with regard to a particular intervener, but rather made identical requests with regard to all the interveners. Furthermore, at the end of this order no request for confidentiality is to be dismissed after weighing up the interests of the main parties and Foundem’s particular interests, and no other specific ground justifies a distinction being drawn between the interveners in gaining access to the case file. On the contrary, the extent of the material in the case file, the technical and factual nature of much of the arguments and the sizeable number of interveners call for the versions of the case file to be limited. In the circumstances of the case, it is therefore necessary, for reasons of procedural efficiency, to forward to all of the interveners the new non-confidential versions of the case materials such as they must appear in accordance with this order, so that all the interveners will have an identical case file which will facilitate the procedural management of this case, in particular for the continuation of the written phase and, as appropriate, the oral procedure, and will allow for a better understanding of the decision to be handed down by the Court (see, to that effect, order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, points 2 and 4 of the operative part).
87 However, Foundem was the only one to consider it necessary to obtain certain information covered by the main parties’ requests for confidential treatment in order to support its statement in intervention. In particular, although the EFTA Surveillance Authority made observations on the requests for confidential treatment from Google and the Commission, it stated clearly, as is set out in paragraph 26 above, that it was not requesting that confidential versions of the case file materials be served on it and that it would avoid referring to confidential information in its intervention. Therefore, only Foundem should be granted more time to supplement its statement in intervention.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. There is no need to adjudicate on the initial requests for confidential treatment concerning the application and the defence submitted by Google LLC, formerly Google Inc., Alphabet, Inc. and the European Commission.
2. The revised requests for confidential treatment concerning the application and the defence, and the requests for confidential treatment concerning the reply and the rejoinder submitted by Google LLC, Alphabet, Inc. and the Commission are granted, save for the items listed in point (3) of the operative part of this order.
3. The revised requests for confidential treatment concerning the application and the defence, and the requests for confidential treatment concerning the reply and the rejoinder are dismissed as regards the following items:
– in the application and the accompanying annexes, the last two sentences of paragraph 80, the last sentence of paragraph 81, the redacted passage in paragraph 120, footnotes 102 to 105, and 170 to 173, the reference to a procedural document at the beginning of footnote 174, Annex A12, save for the names of natural persons contained therein, Annex A57, save for the name of the addressee of the letter constituting that annex and the information which might make it possible to identify that addressee, in Annex 63, Section 6.A., footnote 20, and Section 6.B., fourth paragraph, the number of comparison shopping services which responded to the Commission’s requests for information, identified in the statement of objections, in Annex A63, Section 6.B., footnote 24, the reference of a question in a request for information from the Commission, Annex A138, save for the name of the natural person contained therein and the information which might make it possible to identify that person;
– in the defence and the accompanying annexes, paragraphs 66 to 75, footnotes 8 and 10, the name of an undertaking in footnotes 56 and 59, and in the title of Annex B19, the title of Annexes B3 and B4 in the schedule of annexes, Annex B19, save for the name of the natural person contained therein and the information which might make it possible to identify that person;
– in the reply and the accompanying annexes, paragraph 109 and Annexes C6 to C9;
– in the rejoinder, the names of the agents representing the Commission, accompanying the signatures in the rejoinder.
4. New non-confidential versions of the application, the defence, the reply and the accompanying annexes, compatible with the operative part of this order, shall be submitted by the main parties within a time limit to be set by the Registrar who shall serve those new versions on the interveners.
5. The Registrar shall set a time limit for Infederation Ltd to supplement its statement in intervention in the light of the information which it will have become aware of in the new versions referred to in point 4 of the operative part of this order.
Luxembourg, 11 April 2019.