ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
7 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 — Undertaking — Interest in the result of the case — None)
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 4 December 2017, Connexity Inc., Connexity UK Ltd, Connexity Europe GmbH and Pricegrabber.com Ltd (collectively, ‘Connexity’) applied for leave to intervene in support of the form of order sought by the Commission.
3 The main parties were notified of the application for leave to intervene. On 23 March 2018, the Commission informed the Court that it had no objections regarding Connexity’s application to intervene, whereas Google stated that it objected to that application.
The application for leave to intervene
4 In support of its application for leave to intervene, Connexity 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 undertakings.
5 Connexity states that it directly or indirectly operates a number of online shopping search sites and services (such as Shopzilla, Bizrate, Become, Pricegrabber and several others), that it was ‘involved’ in the Commission investigation, that it is a direct competitor of Google and therefore is likely to have a right of follow-on action against Google, and that it stands to be directly affected by any modifications of the remedies imposed on Google, in the event that the action is upheld by the judgment to be delivered.
6 Google contends that Connexity’s submissions are insufficient ground for the application for leave to intervene to be granted.
7 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.
8 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).
9 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).
10 With respect to an application for leave to intervene submitted by an undertaking, it is necessary, in particular, to ascertain whether that undertaking is directly affected by the contested act and whether its interest in the result of the case is established (see, to that effect, orders of 25 November 1964, Lemmerz-Werke v Haute Autorité, 111/63, EU:C:1964:82, and of 25 February 2003, BASF v Commission, T‑15/02, EU:T:2003:38, paragraph 26).
11 In that regard, undertakings which are in competition, in the affected product markets, with the party that engaged in a practice found in a Commission decision to be contrary to Articles 101 TFEU or 102 TFEU, have a direct and certain interest in the result of a case in which the lawfulness of that decision is at issue, provided that the result may affect, in a sufficiently clear manner, their competitive position (order of 13 June 1994, Reti Televisive Italiene v Commission, T‑542/93, not published, paragraph 9).
12 In the present case, first, while Connexity states that it was ‘involved’ in the Commission investigation, it has not, as noted by Google, adduced any evidence of the manner in which it was involved in the proceeding or specified which of the group’s entities were involved in that investigation. It is clear that neither Connexity, as a group, nor the entities it lists as being components of the group, are mentioned in the contested decision, in recitals 38 to 99, among the undertakings which participated in the administrative proceeding, either as complainants or interested third parties within the meaning of Article 13 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).
13 Secondly, while Connexity claims that it operates a number of online shopping search sites and that it is a direct competitor of Google Shopping, it must be held that, by merely reproducing, almost verbatim, the summary arguments contained in a parallel application for leave to intervene submitted in the present case, Connexity does not even begin to explain in what way its competitive position may be affected, in a sufficiently clear manner, by the result of the case, either individually or in comparison with the 360 other online comparison shopping sites identified by Google (see, a contrario, order of 13 June 1994, Reti Televisive Italiene v Commission, T‑542/93, not published, paragraphs 5 and 9).
14 Unless the relevant facts are clearly apparent from the documents before the Court, it is the responsibility of the applicant for leave to intervene to adduce evidence of its interest to intervene in a case (see, to that effect, order of the Vice-President of the Court of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), not published, EU:C:2016:476, paragraphs 19 and 20; see also, to that effect, order of the President of the Court of 17 October 2011, Gesamtverband der deutschen Textil- und Modeindustrie and Others v Council and Others, C‑2/11 P(I), not published, EU:C:2011:664, paragraphs 26 and 27).
15 Consequently, in the absence of any evidence in the application for leave to intervene capable of establishing that Connexity’s competitive position may be affected, in a sufficiently clear manner, by the result of the case, it must be held that Connexity has not established to the requisite legal standard, as recalled in paragraphs 10 and 11 above, that it has an interest in that result.
16 Accordingly, Connexity’s application for leave to intervene must be dismissed.
Costs
17 Under Article 133 of the Rules of Procedure, a decision as to costs shall be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings so far as concerns Connexity, it is necessary to make an order in respect of the costs relating to its application for leave to intervene.
18 Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Connexity has been unsuccessful and Google has applied for costs, Connexity must be ordered to bear its own costs and to pay those incurred by Google in relation to the application for leave to intervene. Since the Commission has not applied for costs, it must be ordered to bear its own costs relating to the application for leave to intervene.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application of Connexity Inc., Connexity UK Ltd, Connexity Europe GmbH and Pricegrabber.com Ltd for leave to intervene is dismissed.
2. Connexity, Connexity UK, Connexity Europe and Pricegrabber.com shall pay the costs of Google LLC and Alphabet Inc. relating to the application for leave to intervene and bear their own costs.
3. The Commission shall bear its own costs relating to the application for leave to intervene.
Luxembourg, 7 December 2018.