ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
17 December 2018 (*)
(Competition — Abuse of dominant position — Online general search services and specialised comparison shopping services — Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement — Action for annulment — Intervention — Interest in the result of the case — Association of undertakings)
In Case T‑612/17,
Google LLC, formerly Google Inc., established in Mountain View, California (United States of America),
Alphabet Inc., established in Mountain View, California,
represented by T. Graf, R. Snelders and C. Thomas, lawyers, K. Fountoukakos-Kyriakakos, Solicitor, R. O’Donoghue QC and D. Piccinin, Barrister,
applicants,
v
European Commission, represented by T. Christoforou, N. Khan, A. Dawes, H. Leupold and C. Urraca Caviedes, acting as Agents,
defendant,
APPLICATION for annulment of the Commission Decision of 27 June 2017 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 — Google Search (Shopping)) and, in the alternative, for annulment or reduction of the fine imposed by that decision,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 11 September 2017, Google LLC, formerly Google Inc., and Alphabet Inc. (collectively, ‘Google’) brought an action for annulment and, in the alternative, for variation of the Commission Decision of 27 June 2017 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 — Google Search (Shopping)) in which the Commission found that Google had abused its dominant position on a number of national markets and which accordingly imposed a fine on it (‘the contested decision’).
2 By document lodged at the Court Registry on 20 December 2017, Computer & Communications Industry Association (‘CCIA’), an international association of undertakings active in the information and communication technology sector, applied for leave to intervene in support of the form of order sought by Google.
3 The main parties were notified of the application for leave to intervene. On 23 March 2018, Google informed the Court that it had no objections regarding CCIA’s application to intervene, whereas the Commission stated that it objected to that application. The main parties have requested, pursuant to Article 144 of the Rules of Procedure of the General Court, that certain confidential information in the file not be communicated to CCIA in the event that it is granted leave to intervene.
4 Following a measure of organisation of procedure adopted by the Court, the Commission and Google, on 28 September 2018, submitted revised requests for confidential treatment in relation to the application and the defence and, on 12 October 2018, submitted requests for confidential treatment in relation to the reply and the rejoinder.
The application for leave to intervene
5 In support of its application for leave to intervene, CCIA submits, in essence, that it satisfies the conditions for leave to intervene laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, as applicable to associations of undertakings.
6 In this connection, CCIA submits, first, that it represents an appreciable number of undertakings active in the sector concerned, that its objects include protecting the interests of its members, and, lastly, that the judgment to be delivered raises questions of principle liable to affect its members. In that regard, CCIA states, inter alia, that the judgment to be delivered has the characteristics of a landmark case, similar to the judgments of 17 September 2007, Microsoft v Commission (T‑201/04, EU:T:2007:289) and of 12 June 2014, Intel v Commission (T‑286/09, EU:T:2014:547). That is apparent, inter alia, from public statements made by the Commissioner for Competition. CCIA also states that there is a concrete risk that national competition authorities will embrace the Commission’s analysis finding that the practices in question have anticompetitive effects and will apply that approach at the national level, as illustrated by statements of the President of the French competition authority and by investigations initiated by the Polish and German competition authorities in relation to similar practices. Furthermore, CCIA maintains that the contested decision has serious implications for multi-sided markets, in which a large number of online platforms are active. That is particularly true for undertakings that have business models which rely, in full or in part, on revenue from online advertising. A large number of CCIA’s members have such business models.
7 The Commission contends, however, that CCIA does not satisfy the conditions for leave to intervene laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.
8 The Commission argues, first, that the number of CCIA members (25) is too low, in itself, and in view of the size of the sector covered by the contested decision, for CCIA to be regarded as a representative association. Secondly, the lengthy enumeration of CCIA’s lobbying activities does not satisfy the requirement that at least some of its members must have a direct, existing interest in the result of the case. Thirdly, CCIA has not established that the case raises questions of principle that relate to the sector of activity of its members and are liable to affect those members.
9 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, any person may intervene in a case before the Courts of the European Union, other than a case between Member States, between EU institutions, or between Member States and institutions of the European Union, if that person can establish an interest in the result of the case.
10 It is settled case-law that the concept of an ‘interest in the result of the case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward (orders of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 53, and of 8 June 2012, Schenker v Air France and Commission, C‑589/11 P(I), not published, EU:C:2012:332, paragraph 10).
11 The expression ‘result of the case’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver (order of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 57, and order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 11).
12 In that regard, with respect to associations, the Courts of the European Union allow intervention by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (orders of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66, and of 9 June 2016, Council v Front Polisario, C‑104/16 P, not published, EU:C:2016:443, paragraph 11, and order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).
13 More specifically, an association of undertakings may be granted leave to intervene in a case if it represents an appreciable number of undertakings active in the sector concerned, its objects include protecting the interests of its members, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be delivered (orders of 8 December 1993, Kruidvat v Commission, T‑87/92, EU:T:1993:112, paragraph 14, and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).
14 The practice of granting leave to intervene to representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members, which cannot be relied on in support of an application for leave to intervene on an individual basis, is intended to facilitate assessment of the context of cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (see order of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66 and the case-law cited).
15 Nevertheless, it should be noted that the questions raised in the case must be sufficiently closely connected to the association’s general object (order of 26 October 2017, La Quadrature du Net and Others v Commission, T‑738/16, not published, EU:T:2017:775, paragraph 22).
16 It is in the light of those circumstances and considerations that the question whether CCIA should be granted leave to intervene must be examined.
17 In the first place, CCIA represents only 25 undertakings, as is apparent from its application for leave to intervene. Nevertheless, its members comprise some of the largest undertakings in the information and communication technology sector, such as Amazon, eBay, Facebook, Uber, Intel, Netflix, Mozilla, Samsung, British Telecoms and T-Mobile. Consequently, it must be found that CCIA represents an appreciable number of major undertakings that are active on the internet, particularly as regards the sale of products or services.
18 Furthermore, the Commission is incorrect in claiming that CCIA does not satisfy the requirement that its members must be active in the sector concerned. The Commission’s position is based on the erroneous premiss that ‘the sectors concerned are the national markets for general search services and for comparison shopping services’. The notion of ‘market’, to which the Commission refers, is a precise concept in competition law and is more narrow than the notion of ‘sector’, especially when used to characterise a dominant position. In that regard, the Commission has not established that the undertakings in question, even if they may be active on ‘markets’ other than that in which Google is active, are not in the same ‘sector’. Like Google, they are active in the information and communication technology sector in so far as they use that technology as the vital medium for the sale of their products or services and in so far as they participate in the development and commercialisation of that technology.
19 Thus, it must be held that CCIA satisfies the requirement to represent an appreciable number of undertakings active in the sector concerned.
20 In the second place, as regards the requirement relating to the object of the association, according to Article 2A of CCIA’s amended articles of incorporation, its purpose is, inter alia, to promote the interests of the computer and communications industries, and to promote the interests of its members. Furthermore, Article I, Section 2, of CCIA’s bylaws states that one of its objects is to educate governmental authorities and the general public on the importance of ‘full, fair and open competition’ within those industries. Article I, Section 2, of CCIA’s bylaws also states that CCIA may take ‘such … action of … [a] legal nature as may be appropriate to carry out these objectives’. CCIA’s object thus includes protecting the interests of its members and satisfies the second requirement set out in paragraph 13 above.
21 That conclusion is not invalidated by the Commission’s contention to the effect, in essence, that CCIA should have demonstrated that at least some of its members, in themselves, have a direct, existing interest in the result of the case.
22 Unlike in relation to applications for leave to intervene brought by an undertaking on an individual basis, in relation to applications for leave to intervene brought by associations, a ‘broad interpretation’ is adopted as regards interest in the result of the case (see, to that effect, orders of 8 December 1993, Kruidvat v Commission, T‑87/92, EU:T:1993:112, paragraph 14 and of 3 September 2013, Orange Polska v Commission, T‑486/11, not published, EU:T:2013:435, paragraph 13 and the case-law cited). In that regard, interest in the result of the case, in relation to applications for leave to intervene brought by associations, is assessed, inter alia, in the light of whether or not the case in question raises a question of principle, a criterion which is irrelevant as regards individual undertakings, as stated in that case-law.
23 In the third place, as regards whether the present case may raise questions of principle relevant to the sector concerned, in such a manner that the interests of CCIA’s members may be affected to an appreciable extent by the judgment to be delivered, it must be held that the present case raises questions of principle relevant to multi-sided markets as regards, inter alia, the possibility for online platforms which have, on a given market, a very large user base and a well-established position, to expand into other related markets, without infringing Article 102 TFEU.
24 Accordingly, there is a sufficiently close connection between CCIA’s objects and the issues raised in the present case.
25 It follows from all the foregoing that CCIA has established a direct, existing interest in the result of the case.
26 Consequently, CCIA is to be granted leave to intervene in support of the form of order sought by Google.
Applications for confidential treatment
27 At this stage, the transmission to CCIA of documents that have been served on or, if any, that are to be served on the main parties must be limited to non-confidential versions. A decision on the merits of the applications for confidential treatment shall, should the need arise, be made subsequently, in the light of any objections that may be submitted in that regard.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Computer & Communications Industry Association is granted leave to intervene in Case T‑612/17 in support of the form of order sought by Google LLC and Alphabet Inc.
2. The Registrar shall provide Computer & Communications Industry Association with a non-confidential version of each procedural document served on the main parties.
3. A time limit shall be fixed for Computer & Communications Industry Association to submit any objections regarding the applications for confidential treatment. The decision on whether those applications are well founded is reserved.
4. A time limit shall be fixed for Computer & Communications Industry Association to submit a statement in intervention, without prejudice to the possibility of supplementing it later, should the need arise, following a decision on whether the applications for confidential treatment are well founded.
5. Costs are reserved.
Luxembourg, 17 December 2018.