ORDER OF THE VICE-PRESIDENT OF THE COURT
25 February 2025 (*)
( Appeal – Interim relief – Approximation of laws – Regulation (EU) 2022/2065 – Single market for digital services – Article 33(4) – Designation as a very large online platform – Article 39 – Additional online advertising transparency – Action for annulment – Weighing up of interests )
In Case C‑620/24 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 23 September 2024,
WebGroup Czech Republic a.s., established in Prague (Czech Republic), represented by A. Kontosakou, dikigoros, and M. Rato, avocat,
appellant,
the other party to the proceedings being:
European Commission, represented by P.‑J. Loewenthal and J. Szczodrowski, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its appeal, WebGroup Czech Republic a.s. asks the Court of Justice to set aside the order of the President of the General Court of the European Union of 12 July 2024, WebGroup Czech Republic v Commission (T‑139/24 R, EU:T:2024:475; ‘the order under appeal’), by which the President of the General Court dismissed its application for suspension of the operation of Commission Decision C(2023) 8850 final of 20 December 2023 designating XVideos as a very large online platform in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council (‘the decision at issue’).
Background to the dispute
2 The background to the dispute is set out in paragraphs 2 to 5 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.
3 WebGroup Czech Republic owns and operates the online platform XVideos (‘XVideos’), namely an adult content hosting service.
4 By the decision at issue, the European Commission designated XVideos as a very large online platform, in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ 2022 L 277, p. 1).
The action before the General Court and the order under appeal
5 By application lodged at the Registry of the General Court on 1 March 2024, WebGroup Czech Republic brought an action for annulment of the decision at issue.
6 By a separate document, lodged at the Registry of the General Court on the same day, WebGroup Czech Republic made an application for interim measures seeking suspension of the operation of that decision, in so far as it imposes on WebGroup Czech Republic an obligation to make publicly available the repository provided for in Article 39(1) and (2) of Regulation 2022/2065.
7 By the order under appeal, the President of the General Court dismissed that application.
8 After finding, in paragraphs 55 and 96 of that order, that the conditions relating to the establishment of a prima facie case and to urgency were satisfied, the President of the General Court nevertheless held, in paragraph 133 of that order, that the interests defended by the EU legislature prevailed, in the present case, over the interests of WebGroup Czech Republic and of third parties, with the result that the weighing up of interests leant in favour of dismissing the application for interim measures.
Forms of order sought by the parties to the appeal
9 WebGroup Czech Republic claims that the Court of Justice should:
– set aside the order under appeal;
– order the suspension of the operation of the decision at issue in so far as it imposes on WebGroup Czech Republic an obligation to make publicly available the repository provided for in Article 39(1) and (2) of Regulation 2022/2065 until such time as the General Court or, as the case may be, the Court of Justice has given final judgment on the action for annulment brought against that decision;
– in the alternative, refer the case back to the General Court for review in accordance with the order of the Court of Justice; and
– order the Commission to pay the costs incurred by WebGroup Czech Republic before the General Court and before the Court of Justice.
10 The Commission contends that the Court of Justice should:
– dismiss the appeal and
– order WebGroup Czech Republic to pay the costs of the present appeal proceedings.
The appeal
11 WebGroup Czech Republic puts forward four grounds in support of its appeal. The first alleges errors of law, distortion of the facts and evidence, failure to state reasons and infringement of the principle of proportionality in weighing the interests of WebGroup Czech Republic against those of the EU legislature. The second ground of appeal alleges errors of law, infringement of the principle of equal treatment and failure to state reasons, on the ground that the order under appeal is based on unjustified reasoning by analogy with the order of the Vice-President of the Court of 27 March 2024, Commission v Amazon Services Europe (C‑639/23 P(R), EU:C:2024:277; ‘the order in Amazon Services Europe’). The third ground of appeal alleges, for its part, failure to state reasons, on the ground that the President of the General Court failed to respond to all the arguments put forward by WebGroup Czech Republic. Last, the fourth ground of appeal alleges errors of law, distortion of the evidence and failure to state reasons, on the ground that the President of the General Court concluded that suspension of the operation of the decision at issue would give rise to discrimination between WebGroup Czech Republic and other very large online platforms that host adult content.
The first to third grounds of appeal
The first part of the first ground of appeal
– Arguments
12 By the first part of its first ground of appeal, the appellant submits, in essence, that the order under appeal is vitiated by an error of law and a distortion of the facts and evidence, in that, in paragraph 119 thereof, the President of the General Court failed to take into account the risks to the existence and financial viability of XVideos. Thus, according to the appellant, the President of the General Court did not take into account that the business model of XVideos is based exclusively on advertising, even though he acknowledged, in paragraphs 88 to 90 of that order, that the application of Article 39(1) and (2) of Regulation 2022/2065 could deter existing and potential advertisers from advertising on that platform. In that context, the appellant submits that the President of the General Court incorrectly based his decision on an analysis of the risks to the existence or long-term development of WebGroup Czech Republic, in its capacity as the provider of XVideos.
13 In that regard, the appellant claims that the reasoning set out in the order under appeal is also vitiated by a failure to state reasons and, in view of the risk that XVideos would cease operations, the outcome of the weighing up of interests carried out by the President of the General Court is disproportionate.
14 Last, according to the appellant, even if XVideos could still operate until the potential annulment of the decision at issue, the damage suffered would be irreparable in so far as the appellant and its advertisers would, in any event, have to reconsider and readjust their advertising strategies. Their current strategies are the result of many years of experience and know-how, acquired both by the appellant and by the advertisers concerned. The President of the General Court erred in considering, in particular in paragraph 115 of the order under appeal, that the development of new advertising strategies is a straightforward exercise.
15 The Commission contends that that line of argument is, in part, unfounded and, in part, ineffective.
– Assessment
16 As a preliminary point, it should be noted that, while Article 33(4) of Regulation 2022/2065 relates, inter alia, to the designation of very large online platforms and, consequently, the decision at issue designates XVideos as such a platform, the fact remains that Article 39 of that regulation lays down obligations that are imposed on providers of very large online platforms in order to ensure greater transparency in online advertising.
17 In addition, it must be borne in mind that, according to settled case-law, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (order of the Vice-President of the Court of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited).
18 In the present case, it is common ground that WebGroup Czech Republic is the provider of XVideos. The President of the General Court therefore correctly ruled on the matter by taking into account, for the purposes of the weighing up of interests that he carried out in the order under appeal, including in paragraphs 117 and 119 thereof, the financial situation of WebGroup Czech Republic and the impact, in that regard, of the application of Article 39 of Regulation 2022/2065. In that context, it is true that the President of the General Court accepted that there was a likelihood of harm that would be both serious and irreparable, but he also examined whether, in the absence of interim measures, the existence and/or long-term development of WebGroup Czech Republic could be jeopardised.
19 It is apparent from paragraph 81 of the order under appeal, the content of which is not disputed by the appellant, that the appellant provides no figures, from accounts or otherwise, regarding the financial situation of the group to which it belongs and that, although it provides explanations of the cascading effects of the loss of advertising revenues, it does not specify the impact of that on its financial viability. Thus, the President of the General Court was fully entitled to hold, in paragraph 120 of the order under appeal, that WebGroup Czech Republic had not shown that it would be exposed to a risk that it would cease operations if interim measures were not granted, in the light of its size, its turnover and the characteristics of the group to which it belongs. In that context, the impact of the implementation of the decision at issue on the profitability of XVideos, considered in isolation, cannot be decisive.
20 In that regard, the reasoning of the President of the General Court is not vitiated by any error of law, or a distortion of the facts and evidence, or an infringement of the principle of proportionality, or any failure to state reasons, and the appellant’s line of argument is therefore unfounded.
21 As regards the appellant’s claim summarised in paragraph 14 of the present order, it must be stated that it is based on a misreading of the order under appeal. The President of the General Court in no way stated that the development of new advertising strategies, following the potential annulment of the decision at issue, would be a straightforward exercise. In the third sentence of paragraph 115 of the order under appeal, he merely found that the potential annulment of the decision at issue would be such as to ensure that advertisers returned to a more attractive business environment and to enable WebGroup Czech Republic to ‘develop new strategies in the management of its advertising activities’, without its competitors being able to acquaint themselves with them by means of the repository referred to in Article 39 of Regulation 2022/2065.
22 In any event, even if the decision at issue were annulled and the appellant were required to reconsider and readjust its advertising strategies, that would have no bearing on the finding made in paragraph 119 of the order under appeal, namely that it is not apparent from the elements put forward by WebGroup Czech Republic that the application to XVideos of Article 39 of Regulation 2022/2065, pending the decision of the court adjudicating on the substance, would have the effect of jeopardising the existence or long-term development of WebGroup Czech Republic. In that regard, the appellant’s line of argument is ineffective.
23 Consequently, the first part of the first ground of appeal must be rejected as, in part, unfounded and, in part, ineffective.
The second part of the first ground of appeal and the second and third grounds of appeal
– Arguments
24 By the second part of its first ground of appeal, the appellant claims, in essence, that the order under appeal is vitiated by a failure to state reasons, on the ground that, in paragraph 112 thereof, the President of the General Court concluded that any decision annulling the decision at issue would not be rendered ineffective if the application for interim measures were dismissed, without expressly taking into account the appellant’s argument that the application of Article 39 of Regulation 2022/2065 could expose XVideos to the risk that the information contained in the repository established by that article might be misused for purposes other than those provided for by the EU legislature, in particular by anti-pornography groups.
25 According to the appellant, those groups often maliciously target businesses active in the adult content sector for moral or religious reasons and could use that information to put pressure on the appellant’s business partners, including financial institutions. The risk of that repository being used for such purposes could, moreover, lead advertisers to cease their advertising activities on XVideos, which could also result in financial harm to that platform.
26 In addition, by its second and third grounds of appeal, the appellant submits, in essence, that the order under appeal is vitiated by errors of law, including an infringement of the principle of equal treatment, and a failure to state reasons, on the ground that, in paragraphs 112 to 116, 118, 126, 128 and 130 to 133 of that order, the President of the General Court cited the order in Amazon Services Europe and treated the situation of XVideos as being identical to that of Amazon Services Europe Sàrl. According to the appellant, their respective situations are in no way comparable, in particular in that, unlike Amazon Services Europe, the advertising revenue of XVideos is its sole source of revenue.
27 Furthermore, in its arguments, Amazon Services Europe did not claim that there was a risk that it would cease operations if interim measures were not granted. Moreover, XVideos’ gross revenues are on a different scale to those of Amazon Services Europe. Last, unlike Amazon Services Europe, the business of XVideos is threatened by the use, by anti-pornography groups, of the information contained in the repository established by Article 39 of Regulation 2022/2065. The President of the General Court failed, in any event, to take account of the risk that XVideos would cease operations and to respond to all the arguments put forward by WebGroup Czech Republic.
28 The Commission contends that WebGroup Czech Republic’s line of argument is, in part, unfounded and, in part, ineffective.
– Assessment
29 As a preliminary point, it should be borne in mind that, according to settled case-law, the statement of the reasons on which an order of the President of the General Court is based must clearly and unequivocally disclose his or her thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, by analogy, judgment of 27 June 2024, Niche Generics v Commission, C‑164/19 P, EU:C:2024:547, paragraph 133 and the case-law cited).
30 Furthermore, it can be seen from that case-law that the President of the General Court’s duty to state reasons does not require him or her to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, and that the President of the General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know why he or she has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, by analogy, judgment of 27 June 2024, Niche Generics v Commission, C‑164/19 P, EU:C:2024:547, paragraph 134 and the case-law cited).
31 In the present case, it must be noted that the fact that the President of the General Court based his reasoning on earlier case-law, such as the order in Amazon Services Europe, does not mean that the situation at issue in the present dispute is considered to be factually identical to that which gave rise to that order. A citation by analogy of that earlier case-law implies only that it is relevant to the legal reasoning justifying the decision taken, in the present case, by the President of the General Court. In that regard, the appellant’s line of argument, relating to the principle of equal treatment, is based on a misreading of the order under appeal and is unfounded.
32 That being so, it nevertheless appears that the President of the General Court did not expressly refer, in the weighing up of interests, set out in paragraphs 97 to 133 of the order under appeal, to certain factual circumstances referred to by WebGroup Czech Republic, in particular as regards the risks stemming from the activities of anti-pornography groups and the impact of those risks on any financial harm. Admittedly, the reasoning in the order under appeal could have been more detailed in that regard.
33 However, as noted in paragraph 19 of the present order, the appellant has failed to provide figures regarding the financial situation of the group to which it belongs, in connection with the application of Article 39 of Regulation 2022/2065. In that regard, it has not established the existence of a risk that it would cease operations if interim measures were not granted. Thus, even on the assumption that the activities of anti-pornography groups could have an impact on that financial situation, the fact that the risks associated with those groups were not expressly taken into consideration would therefore have no effect on the outcome of the weighing up of interests. In that context, it must be held that the reasoning of the President of the General Court set out, inter alia, in paragraphs 119 to 121 of the order under appeal, enables WebGroup Czech Republic to know why its arguments were not upheld, within the meaning of the case-law referred to in paragraphs 29 and 30 of the present order. On that basis, the appellant’s line of argument must therefore be rejected as ineffective.
34 Consequently, the second part of the first ground of appeal and the second and third grounds of appeal must be rejected as, in part, unfounded and, in part, ineffective.
The third part of the first ground of appeal
– Arguments
35 By the third part of its first ground of appeal, the appellant submits, in essence, that the order under appeal is vitiated by an error of fact and of law, on the ground that, in paragraph 128 thereof, the President of the General Court incorrectly considered that not applying certain obligations laid down by Regulation 2022/2065 would lead to a delay in the full achievement of the objectives of that regulation, thereby giving rise to a risk of potentially allowing an online environment which threatens the rights enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) to persist and develop. According to the appellant, advertisers could, in being deterred from doing business with XVideos on account of the transparency obligations laid down in that regulation, choose smaller platforms that fall outside the scope of that regulation. Such a situation would specifically undermine the attainment of those objectives.
36 The Commission contends that that line of argument is unfounded.
– Assessment
37 Article 39 of Regulation 2022/2065 imposes obligations relating to greater transparency in online advertising on providers of very large online platforms and providers of very large online search engines. In the light of recital 95 of that regulation, the rationale for those obligations is that advertising systems used by very large online platforms and very large online search engines pose particular risks and require further public and regulatory supervision on account of their scale and ability to target and reach recipients of the service based on their behaviour within and outside the online interface of those platforms or those search engines.
38 Article 39 of that regulation therefore does not seek to ensure the transparency of online advertising in general, but only of advertising presented by very large online platforms or by very large online search engines.
39 In those circumstances, assuming that certain advertisers were to turn away from online platforms such as XVideos in favour of smaller online platforms that fall outside the scope of that Article 39, such a situation would not, in itself, be liable to undermine the attainment of the objectives pursued by that article. In any event, the appellant has not shown how, as regards a platform such as XVideos, the President of the General Court erred in finding that not applying Article 39 would give rise to a risk of potentially allowing an online environment which threatens the rights provided for by the Charter to persist and develop.
40 Consequently, the third part of the first ground of appeal must be rejected as unfounded.
The fourth part of the first ground of appeal
– Arguments
41 By the fourth part of its first ground of appeal, the appellant submits, in essence, that the order under appeal is vitiated by an error of law and a distortion of the facts and evidence, on the ground that, in paragraphs 123 and 124 of that order, while accepting that making the repository provided for in Article 39 of Regulation 2022/2065 publicly available was liable directly to affect the interests of third parties, businesspersons and companies who relied on their information remaining protected from disclosure, the President of the General Court nevertheless considered that WebGroup Czech Republic had not specified whether the information made public was sufficient to identify those third parties, those businesspersons and those companies with sufficient precision. According to the appellant, that information is sufficient to identify directly or indirectly the natural or legal persons concerned, including by means of new technologies, such as search engines, and may include personal data which are protected, inter alia, by Articles 7 and 8 of the Charter.
42 The Commission submits that that line of argument is unfounded.
– Assessment
43 As a preliminary point, it should be borne in mind that, according to settled case-law, the purpose of interlocutory proceedings is to avoid serious and irreparable damage to the applicant’s interests, and it is only the applicant’s interests which must, where the applicant is a private individual, be taken into consideration by the judge hearing the application for interim measures (order of the Vice-President of the Court of 30 March 2022, Girardi v EUIPO, C‑703/21 P(R), EU:C:2022:250, paragraph 59 and the case-law cited).
44 In the present case, it should be noted that, in paragraph 122 of the order under appeal, the President of the General Court referred to the argument put forward by WebGroup Czech Republic, according to which account must be taken of additional interests of third parties, businesspersons and companies who have relied on their business secrets remaining protected from disclosure, and according to which those additional interests should tip the balance in favour of WebGroup Czech Republic, not in favour of the EU legislature.
45 Furthermore, in paragraph 123 of the order under appeal, the President of the General Court accepted that making the repository at issue publicly available was liable directly to affect the interests of those third parties, those businesspersons and those companies and, therefore, to affect the interests of WebGroup Czech Republic. In that regard, he stated that, while it was true that the interests of third parties were involved, the fact remained that WebGroup Czech Republic had a responsibility towards them.
46 It is in that context that, in paragraph 124 of the order under appeal, the President of the General Court observed, however, that WebGroup Czech Republic did not specify whether the information referred to in Article 39(2)(b) and (c) of Regulation 2022/2065 was sufficient to identify those third parties, businesspersons and companies with sufficient precision.
47 In that regard, while it cannot be ruled out that the information made public under that provision may include personal data protected by Articles 7 and 8 of the Charter and by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1), it must be borne in mind that the interests of persons other than WebGroup Czech Republic, such as the third parties, businesspersons and companies referred to in paragraph 123 of the order under appeal, are not, in principle, relevant for the purposes of the weighing up of interests carried out by the judge hearing the application for interim measures, in the light of the case-law referred to in paragraph 43 of the present order. The President of the General Court therefore took into consideration the interests of those third parties, businesspersons and companies only in so far as they were liable directly to affect the interests of WebGroup Czech Republic, in its capacity as the applicant.
48 In the light of the finding made, inter alia, in paragraphs 120 and 121 of the order under appeal, from which it is apparent that WebGroup Czech Republic has not established the existence of a risk that it would cease operations or of a significant and lasting risk of loss of market share if interim measures were not granted, the considerations set out in paragraphs 123 and 124 of the order under appeal are, in any event, given for the sake of completeness. In that regard, the arguments put forward by the appellant are not such as to call into question the outcome of the weighing up of interests carried out by the President of the General Court.
49 In addition, it must be stated that the appellant merely asserts that it is obvious that the information referred to in Article 39(2)(b) and (c) could be sufficient to identify directly or indirectly the third parties concerned, in particular by means of tools such as search engines, and that that information could include personal data. As the Commission observed, such an assertion is speculative and general, and does not show that the President of the General Court erred in law or distorted the facts and evidence in finding, in paragraph 124 of the order under appeal, that WebGroup Czech Republic had not specified whether that information was sufficient to identify the third parties, the businesspersons and the companies in question with sufficient precision. Thus, the appellant’s line of argument is, in any event, unfounded.
50 Consequently, the fourth part of the first ground of appeal must be rejected as unfounded.
The fourth ground of appeal
Arguments
51 By its fourth ground of appeal, WebGroup Czech Republic claims, in essence, that the President of the General Court erred in law in finding, in paragraph 132 of the order under appeal, that suspension of the operation of the decision at issue would have given rise to discrimination between WebGroup Czech Republic and other very large online platforms that host adult content, whereas those other platforms could also have challenged the lawfulness of the obligations provided for in Article 39 of Regulation 2022/2065.
52 The Commission contends that this ground of appeal is unfounded.
Assessment
53 As a preliminary point, it must be stated that the appellant’s line of argument is based on a misreading of the order under appeal. In paragraph 132 of that order, the President of the General Court merely found that suspension of the operation of the decision at issue would be liable to alter the competitive situation in the digital sector in a manner which had not been provided for by the EU legislature, by making WebGroup Czech Republic subject to a regime different from that applicable to other players in that sector which have, in view of the criteria defined by that legislature, characteristics comparable to that company. Although the President of the General Court considered that such suspension would be liable to make the appellant subject to a regime different from that applicable to those other players, he nevertheless did not find that such a difference in regime would constitute discrimination.
54 Furthermore, and in any event, the appellant has not shown how the assessment relating to the possibility of such alteration of the competitive situation in the digital sector is factually or legally incorrect, or how the alleged error could affect the outcome of the weighing up of interests carried out by the President of the General Court.
55 Last, the appellant has not explained how the fact that those other players had the opportunity to challenge the lawfulness of the obligations imposed under Article 39 of Regulation 2022/2065 is such as to call that assessment into question.
56 Accordingly, the fourth ground of appeal must be rejected as unfounded and, consequently, the appeal must be dismissed in its entirety.
Costs
57 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.
58 Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
59 Since the Commission has applied for costs and WebGroup Czech Republic has been unsuccessful, WebGroup Czech Republic must be ordered to pay the costs.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1. The appeal is dismissed.
2. WebGroup Czech Republic a.s. shall pay the costs.
Luxembourg, 25 February 2025.
A. Calot Escobar | | T. von Danwitz |