ORDER OF THE PRESIDENT OF THE NINTH CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT
10 February 2020 (*)
(Confidentiality — Challenge by an intervener)
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, C. Thomas and K. Fountoukakos‑Kyriakakos, lawyers, R. O’Donoghue QC, D. Piccinin, Barrister, and by M. Pickford QC,
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
Infederation Ltd, established in Crowthorne (United Kingdom), represented by A. Morfey, S. Gartagani, L. Hannah, A. D’heygere and K. Gwilliam, Solicitors, and by T. Vinje, lawyer,
by
EFTA Surveillance Authority, represented by C. Zatschler and C. Simpson, acting as Agents,
by
Kelkoo, established in Paris (France), represented by J. Koponen and B. Meyring, lawyers,
by
Verband Deutscher Zeitschriftenverleger eV, established in Berlin (Germany), represented by T. Höppner, professor, and by P. Westerhoff and J. Weber, lawyers,
by
Visual Meta GmbH, established in Berlin, represented by T. Höppner, professor, and by P. Westerhoff and J. Weber, lawyers,
by
Bundesverband Deutscher Zeitungsverleger eV, established in Berlin, represented by T. Höppner, professor, and by P. Westerhoff and J. Weber, lawyers,
by
Federal Republic of Germany, represented by J. Möller, acting as Agent,
and by
Twenga, established in Paris, represented by L. Godfroid, S. Hautbourg and S. Pelsy, lawyers,
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 (EXTENDED COMPOSITION) 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 20 December 2017, the Bundesverband der Deutschen Zeitschriftenverleger eV (‘BDZV’) sought leave to intervene in support of the form of order requested by the Commission.
3 By orders of the President of the Ninth Chamber of the General Court of 17 December 2018, BDZV and the other interveners mentioned in the introductory part of this order were granted leave to intervene.
4 On 15 March 2019, BDZV lodged a statement in intervention at the Court Registry.
5 By order of the President of the Ninth Chamber of the General Court of 11 April 2019, Google and Alphabet v Commission (T‑612/17, not published, EU:T:2019:250), a ruling was made on the requests for confidentiality concerning elements of the application, the defence, the reply, the rejoinder and the annexes thereto, made by the main parties vis-à-vis the interveners and on the challenge by certain interveners in those requests. One of those interveners was authorised to lodge a supplementary statement in intervention. BDZV, for its part, had not challenged those confidentiality requests by the main parties within the period prescribed, namely by 15 January 2019 at the latest.
6 After the interveners lodged their statements in intervention, the main parties lodged observations on those statements in intervention at the Court Registry during the months of May, June and July 2019. (In particular, Google lodged observations on BDZV’s statement in intervention on 21 June 2019.)
7 By decision of the plenary meeting of the General Court of 10 July 2019, the case was referred to the Ninth Chamber (Extended Composition) of the General Court.
8 By letters of 9 and 23 August 2019 respectively, the Commission and Google requested that, because of their confidentiality, certain matters in Google’s observations on several statements in intervention should not be communicated to the interveners.
9 By order of the President of the Ninth Chamber of the General Court of 8 October 2019, a ruling was given on certain requests for confidentiality concerning elements of the observations on the statements in intervention, made by Google vis-à-vis the interveners, and on the challenge to those requests by the interveners, which did not include BDZV.
10 Upon hearing the Judge-Rapporteur, the General Court (Ninth Chamber, Extended Composition) called on the main parties, pursuant to Article 89(2) and (3) of the Rules of Procedure of the General Court, to answer a number of questions, either in writing or at the hearing scheduled for 12 to 14 February 2020.
11 On 21 and 22 January 2020, the main parties lodged responses to the Court’s questions at the Court Registry.
12 By document lodged at the Court Registry on 22 January 2020, amended on 27 January 2020, Google requested that certain information contained in its response to the Court’s questions and in the annexes to those responses be kept confidential vis-à-vis all the interveners. Google provided non-confidential versions of those documents.
13 By document lodged at the Court Registry on 5 February 2020, BDZV contests certain requests for confidentiality made by Google concerning its response to the Court’s questions, but also concerning annexes to the defence and the reply.
Applications for confidential treatment
Recall of principles
14 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.’
15 That provision lays down the principle that interveners are to receive a copy of every pleading served on the main 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).
16 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).
17 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).
18 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).
19 Indeed, 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.
20 In the present case, there appears to be no particular reason to rule on the uncontested aspects of the requests for confidentiality.
21 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).
22 In that regard, as is apparent from paragraph 17 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 five 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).
23 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).
24 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).
25 In that regard, the main parties must consider, having regard to the adversarial and public nature of judicial proceedings, the possibility that some confidential documents and information which they have intended to produce in the file may be necessary for the exercise of the interveners’ procedural rights and, consequently, must be communicated to those interveners (order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 46).
26 Finally, it should be recalled that acceptance of a request for confidential treatment, 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 (order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 22).
The requests for confidentiality contested by BDZV
27 BDZV contests, first, the requests for confidentiality concerning Annexes B6 and B14 to the defence and Annex C16 to the reply and, second, some of the requests for confidentiality concerning Google’s response to the Court’s questions.
The requests for confidentiality concerning Annexes B6 and B14 to the defence and Annex C16 to the reply
28 It should be borne in mind that Article 62 of the Rules of Procedure provides that a procedural document lodged at the Registry after expiry of the time limit set by the President or by the Registrar pursuant to these Rules may be accepted only pursuant to a decision of the President to that effect.
29 The confidentiality vis-à-vis the interveners of passages in Annexes B6 and B14 to the defence and Annex C16 to the reply was accepted in the order of 11 April 2019, Google and Alphabet v Commission (T‑612/17, not published, EU:T:2019:250, paragraphs 2 and 3 of the operative part), referred to in paragraph 5 above.
30 Furthermore, as also stated in paragraph 5 above, BDZV did not, within the period prescribed for that purpose, raise objections to the confidentiality of those passages. Moreover, the circumstance which it invokes in the document lodged on 5 February 2020 is not such as to justify the lodging of such objections out of time.
31 In that regard, BDZV states, in paragraph 2 of the document which it lodged at the Court Registry on 5 February 2020, that Google indicates that it intends to use its response to the sixth question put to it by the Court as evidence to support its action against the contested decision. BDZV cites Google in that regard, according to which it ‘complies with the [d]ecision’s requirements by giving aggregators the same opportunity to bid for product ads in Shopping Units as the Google CSS’. As stated in paragraph 1 of that document, that would mean that the confidential information at issue would henceforth appear in an entirely different context, indicating its importance.
32 It should be recalled that the Court’s sixth question sought clarification regarding the differences between the commitments proposed by Google to the Commission during the administrative proceedings in January/February 2014 and the measures taken by Google to comply with the contested decision, and to better understand whether certain conditions for competing comparison shopping services to access certain parts of Google’s general results pages, the Shopping Units, still apply in connection with the implementation of the contested decision.
33 However, Google’s use of its response to that question to challenge the contested decision, highlighted by BDZV, is limited to two aspects: firstly, the challenge to the Commission’s position that Google’s proposed commitments demonstrate that Google could provide access to certain parts of its general results pages, the Product Universals, to competing comparison shopping services using the same mechanisms as those used for its own comparison shopping services (paragraphs 6.2. and 6.27. to 6.30.); secondly, Google’s assertion that access to the Shopping Units was already open to the competing comparison shopping services on terms not identified as problematic in the contested decision (paragraph 6.31.).
34 Those aspects of Google’s argument are not new. They are set out, respectively, in paragraph 140 of the application and paragraph 94 of the reply, on the one hand, and in paragraphs 198 to 207 of the application and in paragraphs 119 to 126 of the reply, on the other.
35 In those circumstances, the ground relied on by BDZV, according to which the information, the confidentiality of which it is seeking to be waived belatedly in relation to the time limit set for it, appears in a context which is now entirely different given Google’s response to the sixth question put to it by the Court, is incorrect. BDZV cannot, therefore, rely on that argument to justify the submission at this stage of the proceedings of its application seeking to waive the confidentiality of passages in Annexes B6 and B14 to the defence and Annex C16 to the reply.
36 It follows from the foregoing that there is no need to review the requests for confidentiality concerning those documents in the file.
The requests for confidential treatment concerning Google’s response to the Court’s questions
37 BDZV contests the confidentiality of an item of information in footnote 77 of Google’s response to the Court’s questions. That footnote note is linked to paragraph 6.14 of that response, in which Google states that, since the adoption of the contested decision, it voluntarily tested the installation of a tab dedicated to its competitors’ comparison shopping services, which may in certain cases be displayed above the Shopping Units and which contains advertising links to the websites of the comparison shopping services that purchased those links.
38 The information in respect of which Google requested confidentiality concerns the appearance rate of that tab above the Shopping Units. Google justified its request for confidentiality by stating that that information concerns recent confidential quantitative data related to actions it has taken in order to comply with the contested decision.
39 Contrary to BDZV’s submissions, that information is not market data concerning all the comparison shopping services, but data concerning Google’s choices to display the tab in question more or less frequently above the Shopping Units, which, given the recent nature of that information, actually constitutes confidential data since Google does not wish to disclose that information. It is therefore necessary to balance the legitimate interests of Google and BDZV as to whether or not that data should be disclosed.
40 BDZV states in that regard that it must have knowledge of that information in order to present its views at the hearing regarding Google’s assertion, in paragraph 6.14 of its response to the questions put by the Court, that experience shows that that tab provides results that are affected by quality problems, in particular inconsistent results.
41 However, a discussion on the merits of the tab in question currently tested by Google, or even on the merits of the results provided by the websites to which that tab redirects, appears to be only very indirectly linked to the subject matter of the present dispute, namely the question of the lawfulness of the contested decision, which was adopted in 2017. That discussion could, moreover, if it was useful, be sufficiently facilitated having regard to Annex Q4, referred to in footnote 79 of Google’s response to the questions put by the Court, in respect of which Google did not request confidentiality. It is therefore not necessary to refuse the confidentiality sought by Google in relation to footnote 77 of that response in order for BDZV to be able fully to support the Commission in its contention that Google’s action against the contested decision should be dismissed. Moreover, the information specifically at issue, in view of its nature referred to in paragraph 40 above, is of no relevance to such a discussion or to the subject matter of the dispute.
42 Google’s request for confidentiality concerning footnote 77 of its response to the Court’s questions must therefore be granted.
43 Finally, BDZV contests the confidentiality of an item of information in footnote 78 of Google’s response to the Court’s questions. That footnote is also linked to paragraph 6.14 of that response, in which Google states that, since the adoption of the contested decision, it has voluntarily tested the installation of a tab dedicated to its competitors’ comparison shopping services, which may in certain cases be displayed above the Shopping Units and which includes advertising links to the websites of the comparison shopping service who have purchased those links.
44 The information in respect of which Google requested confidentiality concerns the rate of use by internet users of that tab, when it appears. Google justified its request for confidentiality by stating that that information concerns recent confidential quantitative data related to actions it has taken in order to comply with the contested decision.
45 BDZV puts forward the same reasons as in relation to footnote 77, referred to above, to request that confidentiality be waived with regard to footnote 78 of Google’s response to the Court’s questions. BDZV adds that, without that information, it cannot ensure that Google fully complies with the contested decision.
46 First of all, the information at issue, which gives an indication of the success of the tab tested among internet users, also constitutes confidential data in view of its recent nature, since Google does not wish to disclose that information. It is therefore necessary to balance the legitimate interests of Google and BDZV as to whether or not that data should be disclosed.
47 In that regard, the observations set out in paragraph 43 above can be repeated, with the exception of the last thereof. It should be added that the sentence in paragraph 6.14 of Google’s response to the Court’s questions, which refers to the footnote at issue, itself indicates that few internet users use the tab in question, which is sufficient to understand that it is not very successful. Finally, it must also be added that, in the context of the present dispute, it is not the role of BDZV to ensure that Google fully complies with the contested decision.
48 Google’s request for confidentiality concerning footnote 78 of its response to the Court’s questions must therefore be granted.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT
Hereby orders:
1. The applications by the Bundesverband Deutscher Zeitungsverleger eV seeking to waive confidentiality in respect of passages in Annexes B6 and B14 to the defence and Annex C16 to the reply are dismissed as inadmissible.
2. There is no need to adjudicate on the requests for confidential treatment that are not contested by the interveners and which were made by Google LLC, formerly Google Inc. and Alphabet Inc. concerning their responses to the General Court’s questions.
3. The requests for confidential treatment concerning footnotes 77 and 78 of the response of Google LLC, formerly Google Inc. and Alphabet Inc. to the General Court’s written questions are granted.
Luxembourg, 10 February 2020.