ORDER OF THE PRESIDENT
OF THE FIRST CHAMBER OF THE GENERAL COURT
14 February 2025 (*)
( Regulation of digital markets and services – Information Society – Regulation of digital services – Regulation (EU) 2022/2065 – Commission Delegated Regulation (EU) 2023/1127 – Commission decision determining the amount of the supervisory fee in accordance with Article 43(3) of Regulation (EU) 2022/2065 – Intervention – No interest in the result of the case )
In Case T‑58/24,
Tiktok Technology Ltd, established in Dublin (Ireland), represented by E. Batchelor and M. Frese, lawyers,
applicant,
v
European Commission, represented by O. Gariazzo and P.-J. Loewenthal, acting as Agents,
defendant,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, Tiktok Technology Ltd (‘Tiktok’), seeks the annulment of Commission Implementing Decision C (2023) 8173 final of 27 November 2023 determining the supervisory fee applicable to TikTok pursuant to Article 43(3) of Regulation (EU) 2022/2065 of the European Parliament and of the Council (‘the contested decision’).
Background to the dispute and procedure
2        Pursuant to Article 43(1) to (3) 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 Digital Services Act’), the European Commission is to charge providers of very large online platforms (‘VLOPs’) and very large online search engines (‘VLOSEs’) an annual supervisory fee for each of their designated services to cover the estimated costs incurred by the Commission ‘in relation to its supervisory tasks’ under that regulation.
3        In that regard, Article 43(4) of the Digital Services Act provides that the Commission is to adopt delegated acts laying down the detailed methodology and procedures for determining: (a) the estimated costs; (b) the individual annual supervisory fee of each VLOP and VLOSE; (c) the maximum overall limit of the fee, which may not, in any case, exceed 0.05% of a given provider’s worldwide annual net income in the preceding financial year; and (d) the detailed arrangements necessary to pay the fee.
4        On 2 March 2023, the Commission adopted Delegated Regulation (EU) 2023/1127 supplementing Regulation 2022/2065 with the detailed methodologies and procedures regarding the supervisory fees charged by the Commission on providers of very large online platforms and very large online search engines (OJ 2023 L 149, p. 16) (‘the delegated regulation’). Article 5 of that regulation lays down the criteria for determining the overall amount of the supervisory fee and for applying the maximum overall limit. In particular, under Article 5(2) to (4) of that regulation, the overall amount of the supervisory fee charged in a given year to a service provider is not to exceed the maximum overall limit, equal to 0.05% of its worldwide profit in the preceding financial year. If that maximum limit is exceeded, the residual amount not charged is to be borne by the remaining providers of designated services for whom that limit is not reached.
5        On 25 April 2023, the Commission adopted a decision designating the online platform ‘TikTok’ as a VLOP pursuant to Article 33(4) of the Digital Services Act.
6        On 27 November 2023, the Commission adopted the contested decision, which determined the annual supervisory fee applicable to that VLOP for 2023, pursuant to Article 43(1) of the Digital Services Act. That fee was calculated, under the second subparagraph of Article 43(3) of the Digital Services Act, in accordance with the methodology and procedures set out in Article 5 of the delegated regulation.
7        That same day, the Commission adopted Implementing Decision C (2023) 8179 final determining the supervisory fee applicable to Google Maps, Google Play, Google Search, Google Shopping and YouTube pursuant to Article 43(3) of the Digital Services Act. That decision was addressed to Google Ireland Ltd (‘Google’) as the main establishment in the European Union of the provider of the abovementioned designated services.
8        By application lodged at the Registry of the General Court on 6 February 2024, the applicant brought the action referred to in paragraph 1 above.
9        By document lodged at the Court Registry on 16 May 2024, Google applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant.
10      That application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
11      By document lodged at the Court Registry on 17 June 2024, the applicant stated that it had no observations on the application to intervene.
12      By separate documents lodged at the Court Registry on 17 June, 17 July and 17 October 2024, the applicant made an application, pursuant to Article 144(2) of the Rules of Procedure, to have certain information contained, respectively, in its application, reply and defence, and in some of the annexes to those documents, which it claimed was confidential, excluded from the file to be sent to Google if it were granted leave to intervene. To that end, the applicant produced non-confidential versions of the documents concerned.
13      By document lodged at the Court Registry on 17 June 2024, the Commission stated that it objected to the application to intervene.
Law
14      Google submits that it has a direct and existing interest in intervening in support of the form of order sought by Tiktok, since the result of the case is liable to have an impact on its legal and economic position.
15      The applicant for leave to intervene does not state that it has brought an action for annulment of Implementing Decision C (2023) 8179 (see paragraph 7 above).
16      It argues that, in view of the methodology used by the Commission to calculate the supervisory fees imposed on the various suppliers of VLOPs and VLOSEs, the Commission’s decisions are interlinked and interdependent. According to that methodology, a provider is not to pay, in any given year, a supervisory fee exceeding 0.05% of the worldwide net profit recorded by that provider during the preceding year. Furthermore, the amount of that fee, as calculated for a provider, which exceeds that maximum limit is to be allocated proportionally among the other providers of the designated services, so that the Commission’s supervisory costs are covered in full, to the extent that those other providers’ fees, thus calculated, do not, in any event, exceed their respective maximum fee limits. Google submits that the additional fee amount imposed on a provider when allocating the fees exceeding the maximum limit cannot therefore be viewed in isolation from the calculation of other providers’ fees.
17      According to Google, the forthcoming judgment, first, will have an effect on the applicability of Article 5(2) and (4) of the delegated regulation, which the applicant claims is unlawful, also with regard to Google itself, and, secondly, will affect the amount of and the mechanism for calculating the supervisory fee levied on it.
18      Google maintains that, ultimately, if the applicant were to succeed, that would have a direct, present and concrete effect on Google’s legal and economic position, in so far as the annulment of the contested decision would have a particular impact on the fee imposed, in particular, on Google, which, like other VLOPs and VLOSEs, is liable for residual, additional fees under the abovementioned allocation mechanism (see paragraph 16 above).
19      The Commission disputes the arguments put forward by the applicant for leave to intervene.
20      In accordance with Article 144(5) of the Rules of Procedure, where an application to intervene is submitted pursuant to a legal basis other than the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union, the President is to decide on the application to intervene as soon as possible, by order, and, where applicable, on the communication to the intervener of information which it is claimed is confidential.
21      It follows from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, that any person establishing an interest in the result of a case submitted to the General Court, except in cases between Member States, between EU institutions, or between Member States and EU institutions, is entitled to intervene in that case.
22      It is settled case-law that the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must be defined in the light of the precise subject matter of the dispute 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. The words ‘result of a case’ refer to the final decision sought from the court hearing that case, as set out in the operative part of the future judgment (see order of the Vice-President of the Court of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 35 and the case-law cited, and order of the President of the Court of 27 July 2023, Minority SafePack – one million signatures for diversity in Europe v Commission, C‑26/23 P, EU:C:2023:618, paragraph 6 and the case-law cited). Therefore, more specifically, it is a direct and existing interest in seeing granted the form of order sought by the party that the party applying to intervene intends to support (see order of the President of the Court of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, not published, EU:C:2020:50, paragraph 7 and the case-law cited).
23      In that regard, it is appropriate, in particular, to check that the applicant for leave to intervene is directly affected by the contested measure and that its interest in the result of the case is certain. In principle, an interest in the result of the case can be regarded as sufficiently direct only in so far as that result is such as to change the legal position of the applicant for leave to intervene (see order of the Vice-President of the Court of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 36 and the case-law cited).
24      In addition, a distinction must be drawn between applicants for leave to intervene who have a direct interest in the outcome of the submissions made by the parties in the context of the dispute in which they wish to intervene and those who have only an indirect interest in the resolution of the dispute by reason of similarities between their situation and that of one of the parties (see order of the Vice-President of the Court of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 37 and the case-law cited).
25      Finally, it should be borne in mind that 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 21 above (see order of 31 May 2023, Illumina v Commission, T‑709/22, not published, EU:T:2023:299, paragraph 18 and the case-law cited).
26      It is in the light of those considerations in particular that the question whether Google should be granted leave to intervene must be examined.
27      In the present case, Google submits, in essence, that the annulment of the contested decision, which determines the supervisory fee applicable to Tiktok for TikTok services, first, will have an effect on the applicability of Article 5(2) and (4) of the delegated regulation with regard to it and, secondly, will affect the amount of and the mechanism for calculating its supervisory fee, thereby altering its legal and economic situation.
28      In the first place, an introductory point to note is that the annulment of such a decision has no effect on the final validity of the decision determining the amount of the supervisory fee to be paid by the applicant for leave to intervene in respect of 2023 and cannot therefore alter its legal position within the meaning of the case-law cited in paragraph 23 above.
29      As regards, more specifically, the question of the applicability of Article 5(2) and (4) of the delegated regulation, which the applicant claims is unlawful, it must be stated, as a preliminary remark, that contrary to the requirements established by the case-law cited in paragraph 22 above, that question concerns an interest in relation to one of the pleas raised by the applicant and not in relation to the final decision, as set out in the operative part of the future judgment.
30      In that connection, it must, moreover, be pointed out, as the Commission did, that in the event of annulment of the contested decision, based on the unlawfulness of those provisions, such provisions may, where appropriate, be declared inapplicable only for the purposes of the final decision on Tiktok’s action and not erga omnes.
31      It is clear from the case-law that any finding that an act of general application, on which the individual decision is based, is unlawful cannot lead to the annulment of that act, but only of the act of individual scope stemming from it. Article 277 TFEU is intended to protect the litigant against the application of an unlawful act of general application, without affecting the act of general application itself, which has become unchallengeable by the expiry of the limitation periods provided for in Article 263 TFEU. Thus, a judgment which finds that an act of general application is not applicable acquires the force of res judicata only with regard to the parties to the dispute which gave rise to that judgment (see, to that effect, judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 39 and the case-law cited, and of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraphs 43 to 45 and the case-law cited).
32      Consequently, if, in the context of the forthcoming judgment, it were to be found, incidentally, that Article 5(2) and (4) of the delegated regulation – on the basis of which the residual amounts were determined in the contested decision – is inapplicable, that finding would produce effects only between the main parties to the dispute and would not produce any direct effect with regard to Google or other providers of designated services.
33      The possibility that the Commission, following the annulment of the contested decision, based on the inapplicability of the abovementioned provisions in the present case, might be required to adopt a new decision with regard to the applicant would not bring about any change in the legal position of the applicant for leave to intervene or result in any modification of Implementing Decision C (2023) 8173 establishing the supervisory fee levied on it in respect of 2023 (see paragraph 7 above), which has now become final with regard to it. In addition, even if the Commission were able to alter that calculation by increasing the fee to be paid by Google, Google’s alleged interest would not be a direct, existing interest within the meaning of the case-law but, at the most, an indirect, potential interest. Moreover, in such a hypothesis, Google would still be able to put forward its arguments in an action for annulment which it could bring before the General Court against such an unfavourable Commission decision (see, to that effect, order of 16 December 2004, Hoechst v Commission, T‑410/03, EU:T:2004:369, paragraph 21 and the case-law cited).
34      Nor can the interest of the applicant for leave to intervene in the result of the case be assessed in the light of the unsubstantiated proposition that the Commission will be required in the future to modify the methodology and the mechanism for calculating the supervisory fees, since that goes beyond the ruling on the contested decision (see, to that effect, order of the President of the Court of 5 February 2009, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, not published, EU:C:2009:59, paragraph 9 and the case-law cited).
35      In the second place, as regards the argument of the applicant for leave to intervene that the annulment of the applicant’s supervisory fee would have an impact on the calculation of its own fee, in that it would be charged a residual fee under the abovementioned allocation mechanism, it should be noted, as a preliminary point, that such a situation, even if it were to arise, would, at the most, have an indirect effect on the economic situation of the applicant for leave to intervene and not on its legal position.
36      The applicant for leave to intervene appears to base its reasoning on the premiss that the mechanism for allocating the residual amounts would somehow be automatically triggered in the event of annulment of the contested decision.
37      In that regard, however, it must be borne in mind that, under Article 5(4) of the delegated regulation, such a mechanism is based on the principle that the sum of any residual amounts not charged under Article 5(3) thereof, namely the basic amounts or the sum of the basic amounts exceeding the maximum overall limit of 0.05% of the worldwide profit of a given provider in the preceding financial year (see paragraph 4 above), is to be charged to the remaining designated providers for whom that maximum overall limit is not reached.
38      It follows that, under that provision, the mechanism for allocating the residual amounts is activated only if the maximum overall limit is exceeded. The scenario in which a decision determining the supervisory fee is annulled following an action before the General Court under Article 263 TFEU does not therefore correspond to the scenario envisaged in Article 5(4) of the delegated regulation.
39      Thus, in the present case, if the contested decision were to be annulled, that annulment would result not in the applicant’s maximum overall limit being exceeded, but, as the case may be, in the adoption by the Commission of a new decision with regard to the applicant, re-determining the fee payable in respect of 2023, taking account of the Court’s assessment in the forthcoming judgment. Accordingly, any overshoot of the maximum overall limit of the applicant’s worldwide profit, resulting in the residual amount being charged to the remaining designated VLOPs and VLOSEs, including the applicant for leave to intervene, could arise, if at all, only following the adoption of a new decision with regard to the applicant.
40      In that connection, it should also be observed that it is apparent from recital 11 and Article 2(3) of the delegated regulation that any difference between the amount estimated and the costs actually incurred should not affect the amount of supervisory fees charged for the relevant year, but must be taken into account in the next estimation, either by deducting any surplus from the total costs estimated for the following year or by adding any deficit to the total costs estimated for that following year.
41      Therefore, Google has not established that it has a direct, existing interest in the result of the case within the meaning of the case-law cited in paragraph 22 above.
42      Lastly, if Google’s argument that, in the event of annulment of the contested decision, it could be charged additional fees over and above those already charged for 2023 were well founded, it must be stated that it would not have an interest in seeing granted the form of order sought by the applicant. On the contrary, if Tiktok’s action were dismissed, it is clear that no additional amount could be levied on it. It follows that Google also has no economic interest in intervening in support of the applicant’s form of order seeking annulment of the latter’s fees in respect of 2023.
43      In the light of all the foregoing considerations, it must be held that the interest in intervening on which Google relies cannot be classified as a direct, existing interest in the result of the case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, as interpreted by the case-law. Consequently, its application to intervene must be dismissed.
44      In those circumstances, there is no need to rule on the application for confidential treatment of certain information in the file as regards Google (see paragraph 12 above).
Costs
45      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings with respect to Google, it is appropriate to give a decision on the costs relating to its application to intervene.
46      Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
47      However, as the Commission and the applicant have not submitted any claims as regards the costs relating to the present application to intervene, they must be ordered to bear their own costs relating to that application.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The application to intervene submitted by Google Ireland Ltd is dismissed.
2.      Google Ireland, Tiktok Technology Ltd and the European Commission shall bear their own costs in relation to the application to intervene.
Luxembourg, 14 February 2025.
V. Di Bucci
R. Mastroianni
Registrar
President
*      Language of the case: English.