ORDER OF THE GENERAL COURT (First Chamber)
14 October 2021 (*)
(Action for annulment – Competition – Abuse of dominant position – Online sales – Decision to open an investigation – Territorial scope of the investigation – Exclusion of Italy – Act not open to challenge – Preparatory act – Inadmissibility)
In Case T‑19/21,
Amazon.com, Inc., established in Wilmington, Delaware (United States),
Amazon Services Europe Sàrl, established in Luxembourg (Luxembourg),
Amazon EU Sàrl, established in Luxembourg,
Amazon Europe Core Sàrl, established in Luxembourg,
represented by A. Komninos and G. Tantulli, lawyers,
applicants,
v
European Commission, represented by B. Ernst, T. Franchoo, G. Meessen and C. Sjödin, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking the partial annulment of Commission Decision C(2020) 7692 final of 10 November 2020 initiating proceedings under Article 102 TFEU in Case AT.40703 Amazon – Buy Box,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, M. Jaeger and N. Półtorak (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, Amazon.com, Inc., Amazon Services Europe Sàrl, Amazon EU Sàrl and Amazon Europe Core Sàrl (together, ‘Amazon’), form part of the Amazon group. In particular, Amazon is active on the internet and carries out, inter alia, online retail transactions and the provision of various online services.
2 On 10 November 2020, the European Commission adopted Decision C(2020) 7692 final, initiating proceedings in Case AT.40703 Amazon – Buy Box (‘the contested decision’).
3 In the Commission’s view, certain of Amazon’s commercial practices could artificially favour its own retail offers and offers of marketplace sellers that use Amazon’s logistics and delivery services.
4 The Commission took the view that, if established, the practice in question may be contrary to Article 102 TFEU.
5 In the contested decision, the Commission stated that the investigation would cover the whole of the European Economic Area (EEA), with the exception of Italy, which it justified, in the press release accompanying the adoption of that decision, by the fact that the Italian competition authority had begun to investigate partially similar problems in April 2019, focusing on the Italian market.
Procedure and forms of order sought
6 By application lodged at the Court Registry on 19 January 2021, Amazon brought the present action.
7 By a separate document lodged on 19 January 2021, Amazon requested an expedited procedure pursuant to Article 152 of the Rules of Procedure of the General Court. By decision of 11 February 2021, the Court decided not to grant that request.
8 By separate document lodged at the Court Registry on 29 March 2021, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure. Amazon lodged its observations on that objection on 14 May 2021.
9 By documents lodged at the Court Registry on 21 and 22 April 2021 respectively, the Italian Republic and the Autorità Garante della Concorrenza e del Mercato (National Competition Authority, Italy) sought to leave to intervene in the present proceedings in support of the form of order sought by the Commission.
10 By documents lodged at the Court Registry on 21 April 2021, the Chamber of Commerce of the United States of America and the Computer & Communications Industry Association sought leave to intervene in the present proceedings in support of the form of order sought by Amazon.
11 In the application, Amazon claims that the Court should:
– annul the contested decision in part, in so far as it excludes Italy from the territorial scope of the investigation;
– order the Commission to pay the costs.
12 In its objection of inadmissibility, the Commission contends that the Court should:
– dismiss the action as inadmissible;
– order Amazon to pay the costs.
13 In its observations on the objection of inadmissibility, Amazon contends that the Court should reject the objection of inadmissibility.
Law
14 In support of the objection of inadmissibility, the Commission raises three pleas of inadmissibility alleging, first, that there is no act capable of being the subject of an action for annulment under Article 263 TFEU, secondly, that Amazon had no legal interest in bringing proceedings and, thirdly, that it is not possible for the Court to annul the contested decision in part and to order the Commission to alter the geographical scope of the investigation which it had initiated.
15 The applicants submit, inter alia, that the specific circumstances of the present case are such as to make the contested decision a challengeable act.
16 Under Article 130(1) and (7) of the Rules of Procedure, on the application of the defendant, the Court may decide on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission has requested the Court to give a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling without taking further steps in the proceedings.
17 In accordance with settled case-law, any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU. Those effects must be assessed in the light of the substance of that measure and in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted, and the powers of the institution which adopted the measure (see, to that effect, judgments of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48).
18 Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision cannot be treated as acts open to challenge (judgment of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraph 37).
19 In that connection, whilst measures of a purely preparatory character may not themselves be the subject of an action for annulment, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step, which guarantees effective and complete judicial protection (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12).
20 The effects and legal character of the contested decision, adopted in accordance with Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18), as amended by Commission Regulation (EU) 2015/1348 of 3 August 2015 (OJ 2015 L 208, p. 3), must be determined in the light of the purpose of that decision in the context of the procedure resulting in a decision pursuant to Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), as amended by Council Regulation (EC) No 487/2009 of 25 May 2009 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (OJ 2009 L 148, p. 1) (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 13).
21 That procedure was designed to enable the undertakings concerned to communicate their views and to provide the Commission with the clearest possible information before it adopted a decision affecting their interests. Its purpose is therefore to create procedural guarantees for the benefit of those undertakings and, as is apparent from Article 10 of Regulation No 773/2004, to ensure that they have the right to be heard by the Commission (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 14).
22 However, an action for annulment against the initiation of a proceeding under Article 102 TFEU might make it necessary for the EU judicature to arrive at a decision on questions on which the Commission has not yet had an opportunity to state its position and would as a result anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial. It would thus be incompatible with the system of the division of powers between the Commission and the EU judicature and of the remedies laid down by the Treaty, as well as the requirements of the sound administration of justice and the proper course of the administrative procedure to be followed in the Commission (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 20).
23 It follows that, according to the case-law, a measure by which the Commission initiates proceedings under Article 102 TFEU, produces, in principle, no more than the ordinary effects of any procedural step and, apart from the procedural aspect, does not affect the legal position of the applicants (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 17, and order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission, T‑410/18, EU:T:2019:166, paragraph 19).
24 In the present case, however, it should be noted that the applicants dispute only the part of the contested decision by which the Commission excludes a Member State from the geographical scope of the proceedings which it initiates, and not the contested decision as such. Consequently, it is necessary to ascertain whether, in the light of the principles recalled in paragraphs 17 to 23 above, that part of the contested decision also merely produces the effects of a procedural step.
25 According to Article 2(1) of Regulation No 773/2004, the Commission may decide to initiate proceedings with a view to adopting a decision pursuant to Chapter III of Regulation No 1/2003 at any point in time, but no later than the date on which it issues a statement of objections.
26 Thus, the act by which the Commission announces to an undertaking its intention to initiate proceedings in order to adopt one of the decisions referred to in Chapter III of Regulation No 1/2003 must specify the infringements of Articles 101 and 102 TFEU allegedly committed by one or more undertakings during one or more periods on one or more product markets and one or more geographical markets which that act concerns (judgment of 25 February 2021, Slovak Telekom, C‑857/19, EU:C:2021:139, paragraph 29).
27 It follows that a number of indications must necessarily be included in a Commission decision adopted on the basis of Article 2(1) of Regulation No 773/2004, including the geographical market or markets to which the Commission’s investigation will relate. Thus, the delimitation of that geographical area is only one of the mandatory elements of a decision to initiate proceedings with a view to adopting a decision pursuant to Chapter III of Regulation No 1/2003.
28 Consequently, in deciding, in the present case, to initiate proceedings for the adoption of one of the decisions referred to in Chapter III of Regulation No 1/2003 which does not concern the territory of Italy, the Commission confined itself to delimiting the geographical scope of those proceedings, as is required for a decision taken on the basis of Article 2(1) of Regulation No 773/2004.
29 Amazon observes, however, that some procedural decisions may produce binding and definitive legal effects for the purposes of Article 263 TFEU, as interpreted in the case-law.
30 They include, first, decisions which, whilst being stages in an administrative procedure in progress, do not merely establish the conditions for the subsequent conduct of that procedure, but produce effects which go beyond the procedural framework and substantively alter the rights and obligations of the parties concerned. Secondly, certain procedural decisions may be challenged on the ground that they infringe procedural rights (see judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraphs 96, 97 and 99 and the case-law cited).
31 However, in the present case, the exclusion of Italy from the geographical scope of the proceedings initiated by the Commission following the adoption of the contested decision does not alter Amazon’s rights and obligations in substantive terms, nor does it adversely affect its procedural rights.
32 First, that delimitation of the geographical scope of the investigation opened by the Commission is intended to pave the way for the final decision, and is capable of evolving, since it remains open to the Commission, during the administrative procedure, to modify the geographical scope of its investigation by extending or decreasing it, in order to adapt it, where appropriate, to any information which it may discover.
33 It is only when the Commission has adopted a final decision against Amazon concerning the alleged infringement or infringements of Article 102 TFEU and the proceedings in question are brought to an end that the Commission will make a definitive decision on the geographical scope of the alleged infringement.
34 Secondly, in deciding, in the contested decision, that the geographical market to which its investigation was to relate was the whole of the EEA, excluding Italy, the Commission exercised its discretion to define the geographical scope of its investigation, which amounts to drawing up a list of States from which Italy was absent. Consequently, that exclusion of Italy from the scope of the investigation initiated by the Commission is a purely procedural consequence arising from the initiation of that investigation, with the result that it cannot transform the contested decision into an act affecting Amazon’s legal situation and therefore into a challengeable act.
35 The same conclusion must be drawn as regards Amazon’s claims that the contested decision, first, requires it to defend itself against two different authorities, the Italian competition authority and the Commission, in compliance with procedural rules, guarantees and, generally, different systems and, secondly, could lead to a divergent application of EU competition law and the imposition of divergent penalties, which could undermine the uniform European approach to its activities.
36 First, the fact that Amazon must defend itself before two different authorities does not have any effects other than procedural and thus does not affect its legal situation, as was held concerning the rules relating to limitation in time (see, to that effect, order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission, T‑410/18, EU:T:2019:166, paragraph 26). Secondly, the risk of inconsistent decisions or divergent penalties, imposed where appropriate by both the Italian competition authority and the Commission, would not be the consequence of the contested decision, but would be a consequence of those subsequent administrative proceedings or final decisions. As stated in paragraph 19 above, it is only at the end of the proceedings initiated by the Commission and by the Italian competition authority that Amazon will be able to rely on any possible unlawfulness vitiating those proceedings or the decisions taken at their conclusion in support of an action against the definitive act.
37 Furthermore, it is apparent from the case-law that a decision to initiate proceedings, within the meaning of Article 2(1) of Regulation No 773/2004, does not have the effect of depriving the addressees of that decision of their procedural rights. On the contrary, that procedure was designed specifically in order to enable the undertakings concerned to make known their views and to provide the Commission with the fullest possible clarification before it took a decision affecting their interests (order of 29 January 2020, Silgan Closures and Silgan Holdings v Commission, C‑418/19 P, not published, EU:C:2020:43, paragraph 48). It is therefore intended to create procedural guarantees for those undertakings and, as is apparent from recital 32 of Regulation No 1/2003 and recital 10 of Regulation No 773/2004, to accord undertakings the right to be heard by the Commission.
38 It follows that the decision to exclude Italy from the scope of the proceedings initiated by the Commission following the adoption of the contested decision produces no more than the ordinary effects of any procedural step and, apart from the procedural aspect, does not affect the legal position of Amazon.
39 That conclusion cannot be called into question by Amazon’s claims that the contested decision, although of a procedural nature, produces legal and binding effects, in that the exclusion of the Italian territory from its scope deprived Amazon of the protection against parallel proceedings provided for in Article 11(6) of Regulation No 1/2003.
40 It is clear from the case-law that, where, pursuant to the first sentence of Article 11(6) of Regulation No 1/2003, the Commission initiates proceedings against one or more undertakings for an alleged infringement of Article 101 or 102 TFEU, the competition authorities of the Member States are relieved of their competence to bring proceedings against the same undertakings for the same, allegedly anticompetitive, practices occurring on the same product and geographical market or markets during the same period or periods (judgment of 25 February 2021, Slovak Telekom, C‑857/19, EU:C:2021:139, paragraph 30).
41 National competition authorities being relieved of their competence is justified by the objective pursued by Regulation No 1/2003, which is to ensure the effective application of EU competition rules by empowering the competition authorities of the Member States to apply those rules in parallel with the Commission. However, the parallel application of those rules cannot be at the expense of undertakings. Thus, national competition authorities being relieved of their competence makes it possible to protect undertakings from parallel proceedings brought by those authorities and the Commission (see, to that effect, judgment of 25 February 2021, Slovak Telekom, C‑857/19, EU:C:2021:139, paragraph 32 and the case-law cited).
42 Moreover, under Article 16(2) of Regulation No 1/2003, where the competition authorities of the Member States rule on agreements, decisions or practices falling within Article 101 or 102 TFEU which already form the subject matter of a Commission decision, they cannot take decisions which would run counter to the decision adopted by the Commission.
43 Thus, the protection provided for by Article 11(6) of Regulation No 1/2003 concerns a situation of two parallel proceedings, where the Commission decides to initiate an investigation procedure, and it does not concern a situation of a request to initiate proceedings on a specific market in order to benefit from that protection.
44 In any event, it is clear from the case-law referred to in paragraph 41 above that the objective pursued by Article 11(6) of Regulation No 1/2003, which lays down a procedural rule (see, to that effect, judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 70), is to protect undertakings from parallel proceedings by national competition authorities and the Commission, by relieving national authorities of their competence to apply Articles 101 and 102 TFEU in respect of the acts that are the subject of the proceedings initiated by the Commission. In so doing, Article 11(6) of Regulation No 1/2003 has the effect of protecting undertakings from parallel proceedings brought by those different authorities (see, to that effect, order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission, T‑410/18, EU:T:2019:166, paragraph 20 and the case-law cited).
45 However, that protection against parallel proceedings provided for by the case-law does not imply any right, for the benefit of an undertaking, to have a case dealt with in its entirety by the Commission. It should be recalled that Articles 4 and 5 of Regulation No 1/2003 provide that the Commission and the competition authorities of the Member States have parallel powers for the purpose of the application of Articles 101 and 102 TFEU and the system established by Regulation No 1/2003 is based on close cooperation between the Commission and those authorities (see judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 36 and the case-law cited).
46 Neither Regulation No 1/2003 nor the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43) lays down a rule on the allocation of competencies as between the Commission and the competition authorities of the Member States.
47 In that regard, the Court has previously held that it cannot be said that Article 13(1) of Regulation No 1/2003, which allows a competition authority to suspend or close a case on the ground that another authority is dealing with the same case or has dealt with it, and recital 18, from which it is apparent that ‘the objective [is] that each case should be handled by a single authority’, establish a criterion for allocating or dividing up cases or competencies between the Commission and the national authority or authorities that may have an interest in the case in question (see, to that effect, judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 38).
48 Moreover, as regards the Commission Notice on cooperation within the Network of Competition Authorities, paragraph 4 states that consultations and exchanges within the network are matters between public enforcers and paragraph 31 adds that the notice does not create individual rights for the companies involved to have the case dealt with by a particular authority. More generally, neither Regulation No 1/2003 nor that notice creates rights or expectations for an undertaking to have its case dealt with by a specific competition authority (see judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 39 and the case-law cited).
49 It follows that Amazon is not justified in claiming that it was deprived, by the part of the contested decision in dispute, of the protection provided for by Article 11(6) of Regulation No 1/2003, since that protective effect does not imply that the Commission is obliged to initiate proceedings in order to deprive the national competition authorities of their competence to apply Articles 101 and 102 TFEU.
50 Furthermore, supposing that the Italian competition authority, in breach of the protection against parallel proceedings provided for by Article 11(6) of Regulation No 1/2003, were to conduct proceedings concerning the same geographical area and the same alleged infringements of the competition rules as the proceedings initiated by the Commission, Amazon would still be in a position to challenge that fact before the national courts, relying, in particular, on the lack of competence of that authority. On the assumption also that irregularities occur during proceedings brought by the Commission, those irregularities could, where appropriate, be challenged in the action brought against the Commission’s final decision.
51 It follows from the foregoing findings that the part of the contested decision in dispute, in so far as it excludes Italy from the territorial scope of the investigation, constitutes a preparatory act which does not produce legal effects vis-à-vis Amazon within the meaning of Article 263 TFEU, with the result that the objection of inadmissibility raised by the Commission must be upheld and that, therefore, the action must be dismissed as inadmissible, without it being necessary to examine the other two pleas of inadmissibility raised by the Commission.
52 Pursuant to Article 144(3) of the Rules of Procedure, where the defendant has lodged a plea of inadmissibility or of lack of competence, as provided in Article 130(1), a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. In the present case, as the action has been dismissed as inadmissible in its entirety, there is no need to adjudicate on the applications to intervene referred to in paragraphs 9 and 10 above.
Costs
53 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
54 In addition, under Article 144(10) of the Rules of Procedure, if, as in the present case, the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Since the applications to intervene were not notified to the applicants and the Commission and as they were not therefore put in a position to incur costs, the Italian Republic, the Competition and Market Authority, the Chamber of Commerce of the United States of America and the Computer Communications Industry Association must be ordered each to bear their own costs in that regard.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed.
2. There is no need to adjudicate on the applications to intervene of the Italian Republic, the Autorità Garante della Concorrenza e del Mercato (Competition and Market Authority, Italy), the Chamber of Commerce of the United States of America and the Computer & Communications Industry Association.
3. Amazon.com, Inc., Amazon Services Europe Sàrl, Amazon EU Sàrl and Amazon Europe Core Sàrl shall bear their own costs and pay the costs incurred by the European Commission.
4. The Italian Republic, the Competition and Market Authority, the Chamber of Commerce of the United States of America and the Computer & Communications Industry Association shall bear their own costs relating to the applications to intervene.
Luxembourg, 14 October 2021.