ORDER OF THE PRESIDENT OF THE COURT
18 April 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 P. Stuart, Barrister-at-Law,
appellants,
the other parties to the proceedings being:
European Commission, represented by F. Castillo de la Torre, N. Khan, A. Dawes and C. Urraca Caviedes, acting as Agents,
defendant at first instance,
Application Developers Alliance, established in Washington DC (United States), represented by R. Baena Zapatero, abogado, A. Parr and S. Vaz, Solicitors,
Computer & Communications Industry Association, established in Washington DC, represented by B. Byrne, Solicitor, M. Levitt, avocat, and P. Lugard, advocaat,
Gigaset Communications GmbH, established in Bocholt (Germany), represented by J.-F. Bellis, avocat,
HMD global Oy, established in Helsinki (Finland), represented by M. Glader and M. Johansson, advokater,
Opera Norway AS, formerly Opera Software AS, established in Oslo (Norway), represented by M. Glader and M. Johansson, advokater,
BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV, formerly Bundesverband Deutscher Zeitungsverleger eV, established in Berlin (Germany),
Bureau européen des unions de consommateurs (BEUC), established in Brussels (Belgium), represented by A. Fratini, avvocata,
FairSearch AISBL, established in Brussels, represented by K. Missenden, avocate, and D. Paemen and T. Vinje, advocaten,
Qwant, established in Paris (France),
Seznam.cz a.s., established in Prague (Czech Republic), represented by J. Dobrý and M. Felgr, advokáti,
Verband Deutscher Zeitschriftenverleger eV, established in Berlin,
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) in so far as they concerned 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 Decision C(2018) 4761 final for the single infringement which it committed at EUR 4 125 000 000, for which Alphabet was to be jointly and severally liable in the amount of EUR 1 520 605 895; and
– dismissed their action as to the remainder.
2 By document lodged at the Court Registry on 24 February 2023, Google and Alphabet requested the Court to grant confidential treatment, vis-à-vis the interveners at first instance, to certain information contained in footnote 98 of the European Commission’s response, lodged in the present case, identical to the treatment granted by the General Court to that same information in Case T‑604/18. To that end, Google and Alphabet enclosed a non-confidential version of that response to their request for confidential treatment before the Court of Justice. By letter of 28 February 2023, the Commission confirmed that that non-confidential version could be served on the interveners at first instance.
3 In view of the assertions contained in Google and Alphabet’s request for confidential treatment, which have not been challenged by the Commission, the President of the Third Chamber of the General Court, by order of 23 September 2019, Google and Alphabet v Commission (T‑604/18, not published, EU:T:2019:743), granted confidential treatment to that information.
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 19 January 2023, Google and Alphabet v Commission, C‑738/22 P, not published, EU:C:2023:44, paragraph 5 and the case-law cited).
6 It follows from the foregoing that Google and Alphabet’s request that the Court of Justice grant confidential treatment, vis-à-vis the interveners at first instance, to certain information contained in footnote 98 of the Commission’s response lodged in the present case must be granted. Accordingly, only the non-confidential version of that response shall be disclosed by the Registrar to those interveners.
On those grounds, the President of the Court hereby orders:
1. Certain information contained in footnote 98 of the response of the European Commission shall be treated as confidential vis-à-vis the interveners at first instance, and only the non-confidential version of that response shall be required to be served by the Registrar on those interveners.
2. The costs are reserved.
Luxembourg, 18 April 2023.
A. Calot Escobar | | K. Lenaerts |