Court of Justice of the European Communities (including Court of First Instance Decisions)

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 — Association of undertakings — Failure to demonstrate that the objects of the association include protection of the interests of its members)

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, and by 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, the 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 of the Treaty on the Functioning of the European Union 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 markets and which accordingly imposed a fine on it (‘the contested decision’).

2        By document lodged at the Court Registry on 20 December 2017, the association ‘Open Internet Project or OIP’ (‘OIP’) sought 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 OIP’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, OIP 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 representative trade associations.

5        In that regard, OIP states, first, that Google’s priorities have changed from internet searches to the supply of content on the internet. Although Google began as a general search engine, its business model is now different. Rather than directing users to third party webpages, Google itself provides the answers to searches made by internet users. Google attempts to keep users on its own webpages in order to monetise their attention through advertising. To that end, Google has created a network of specialised search services (Google Maps, Google Street View, Google Earth, Google News, Google Image) to comprehensively satisfy the information needs of internet users, in order to make the ‘clicks’ on third party webpages unnecessary and to direct the traffic generated by general searches to its own specialist search sites, so as to increase its advertising revenues. By offering content, Google is no longer merely acting as an intermediary for the webpages of content providers but is increasingly substituting itself for those providers, with whom it is in competition to capture the attention of users and advertising revenue. That is particularly true with regard to Google News, Google Shopping, Google Image Search and Google Maps. OIP states, in that regard, that its members are competitors or customers for various Google services and that they are adversely affected by its practices favouring its own services. OIP refers, in that respect, to Google Shopping, Google Maps and Google News.

6        Next, OIP states that it represents numerous undertakings and associations active in online commerce and the digital economy (it claims more than 400 members), that its articles of association state that its objective is the promotion of the digital economy and internet neutrality, that those articles provide that it may bring legal actions for that purpose and that it was very active in the administrative proceedings leading to the contested decision.

7        Lastly, OIP explains that the contested decision identifies a number of principles for the assessment of Google’s behaviour in the light of the competition rules which are not limited to the field of specialised comparison search services for the purchase of goods such as Google Shopping and that the interests of its members would be affected by the annulment of the contested decision.

8        For its part, Google argues, first, that OIP has not demonstrated that it is a representative association. It expressly refers to only three of its members and the reason relied on to justify this, namely, that its members fear reprisals from Google, is not credible given that over 40 complainants and interested third parties have intervened against Google in the administrative proceedings which led to the contested decision, without any evidence suggesting that they suffered any such reprisals. The information gathered during the administrative proceedings shows, moreover, that most of the members of OIP then referred to, 10 in all, are news publishers or media companies who do not offer comparison shopping services. Furthermore, the statutory object of OIP does not include defending the interests of its members. Lastly, the interest in the result of the case put forward by OIP is too indirect and general to constitute the direct and certain interest required of interveners. The reference to the value of the contested decision as a precedent in respect of online mapping or news services, or the reference to the kinds of legal arguments likely to be relied on in the proceedings, is insufficient to establish such an interest. In those circumstances, the mere participation of OIP in the administrative proceedings leading to the contested decision is also insufficient for it to be given leave to intervene.

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 and existing interest in the ruling on the forms 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 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 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, E:T:2017:926, point 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) et C‑157/97 P(I), EU:C:1997:307, paragraph 66 and the case-law cited).

15      Nevertheless, it should be noted that 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 OIP should be granted leave to intervene must be examined.

17      It appears that, so far as concerns the condition linked to the objects of the association, according to Article 2 of the articles of association of OIP, the sole object of that association is ‘the promotion of the digital economy and the neutrality of the internet’ with regards, inter alia, to the ‘political … institutions of the European Union’. It is provided in that respect, in that article, that in order to achieve those objects, the association may bring ‘legal actions ... particularly in the context of European legal procedure’. The articles of association of OIP do not contain any provision explicitly stating that it has the object of protecting the interests of its members or other provision which may be interpreted to that effect (see, a contrario, orders of 26 February 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2007:58, paragraph 17, and of 28 November 2014, SolarWorld and Others v Council, T‑142/14, not published, EU:T:2014:1112, paragraph 31).

18      Even if the promotion of the digital economy and internet neutrality may be desirable for OIP’s members, those are public interest objectives which go beyond the defence of the interests of those members. Those objectives may be pursued independently from the defence of the interests of the members of OIP by various bodies, in particular, by public authorities. Consequently, the pursuit of those objectives by OIP does not imply that it acts for the protection of its members’ interests in so far as it is not apparent from its articles of association that the promotion of the digital economy and the defence of internet neutrality by OIP must be carried out specifically to protect its members’ own interests (see, by analogy, order of 28 November 2005, Microsoft v Commission, T‑201/04, not published, EU:T:2005:427, paragraph 33, and, a contrario, order of 18 November 2015, Red Bull v OHIM — Optimum Mark (Combination of the colours blue and silver), T‑102/15, not published, EU:T:2015:949, paragraph 24). Therefore, nor does the fact that OIP may, under its articles of association, engage in lobbying or bring legal proceedings to promote the digital economy or defend internet neutrality mean that its objects include the protection of its members’ interests.

19      Furthermore, OIP does not refer to activities or situations which might specifically demonstrate that its objects include protection of the interests and representation of its members (see, a contrario, order of 18 October 2012, ClientEarth and International Chemical Secretariat v ECHA, T‑245/11, not published, EU:T:2012:557, paragraphs 21 and 22). Mere reliance on its participation in the administrative proceedings leading to the contested decision is insufficient in that regard.

20      It is for the applicant for leave to intervene to adduce the necessary evidence to prove that it satisfies the conditions set out in paragraph 13 above, in particular, that linked to the objects of the association (order of 28 November 2014, SolarWorld and Others v Council, T‑142/14, not published, EU:T:2014:1112, paragraph 21).

21      In those circumstances, OIP has not established that it is an association which has as its objective the protection of its members.

22      That failure to establish that it is such an association is sufficient to dismiss the application for leave to intervene without it being necessary to examine whether the other cumulative criteria which are relevant in that regard, referred to in paragraph 13 above, are or are not satisfied (order of 16 March 2016, One of Us and Others v Commission, T‑561/14, EU:T:2016:173, paragraph 43).

23      That conclusion cannot be refuted by the fact that OIP participated as a complainant in the administrative proceedings leading to the contested decision. That fact alone is not, in itself, capable of establishing that the association concerned satisfies all the conditions laid down in Article 40 of the Statute of the Court of Justice of the European Union for leave to intervene in judicial proceedings before the Courts of the European Union, following those administrative proceedings (see, to that effect and by analogy, 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, paragraph 15, and order of 6 April 2017, Valencia Club de Fútbol v Commission, T‑732/16 R, not published, EU:T:2017:272, paragraph 10).

 Costs

24      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 as far as concerns OIP, it is necessary to make an order in respect of the costs relating to its application to intervene.

25      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 OIP has been unsuccessful and Google has applied for costs, OIP 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 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 for leave to intervene of Open Internet Project or OIP is dismissed.

2.      Open Internet Project or OIP shall pay the costs of Google LLC and of Alphabet Inc. relating to the application for leave to intervene and shall bear its own costs.

3.      The European Commission shall bear its own costs relating to the application for leave to intervene.

Luxembourg, 17 December 2018.

*      Language of the case: English.

© European Union
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