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 19 December 2017, Prestige Gifting Ltd applied for leave to intervene in support of Google.
3        The main parties were notified of the application for leave to intervene. On 23 March 2018, the Commission submitted its objections to the application to intervene, whereas, by document of the same date, Google stated that it had no objections to the application.
The application for leave to intervene
4        In support of its application for leave to intervene, Prestige Gifting 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        In that regard, Prestige Gifting submits, first, with reference to the fact that it is a client of Google’s advertising services, that, in the contested decision, the Commission declared illegal the positioning and display of adverts of its own products on Google’s general search results pages; secondly, that, in so far as the decision ordered Google to change its conduct, the decision interfered in Prestige Gifting’s contractual relationship with Google; and, thirdly, that the decision impacts its business, in particular, its immediate plans for expansion across Europe. Prestige Gifting notes, in essence, that the advertisements that Google displays on its search results pages are particularly effective for an innovative, growing company such as itself.
6        The Commission contends that Prestige Gifting’s submissions are insufficient ground for the application for leave to intervene to be granted. It states, in particular, that, contrary to the submission of Prestige Gifting, the contested decision does not declare illegal ‘the positioning and display of the Shopping Unit which includes Prestige Gifting’s ads, relative to ordinary search results’. Rather, the contested decision relates only to the unfavourable treatment of comparison shopping services in competition with Google’s own such services as regards the layout of the general search results page of Google’s search engine.
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, the test to be applied to undertakings is more stringent than that applicable to associations in so far as 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). That approach is justified by the need to avoid 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) and C‑157/97 P(I), EU:C:1997:307, paragraph 66 and the case-law cited).
12      In the present case, Prestige Gifting maintains that, as an undertaking, it has a direct, existing interest in the ruling to be delivered on the forms of order sought by Google, for the reasons set out in paragraph 5 above.
13      Nevertheless, first, while, it states that the contested decision interferes with its ‘contractual relations’ with Google, Prestige Gifting has not adduced any further information in that regard, even though it is its responsibility to adduce evidence of the facts which it claims establish its interest in the result of the case (see, to that effect, order of 14 December 2010, Huvis v Council, T‑536/08, not published, EU:T:2010:513, paragraph 16). Thus, there is no evidence that the result of the case pending before the Court will affect, at least certainly, the capacity of downstream customers to conclude contracts with Prestige Gifting or their interest in doing so, or alter Prestige Gifting’s contractual rights and obligations vis-à-vis Google (see, to that effect, order of 8 June 2012 in Schenker v Air France and Commission, C‑589/11 P(I), not published, EU:C:2012:332, paragraph 14).
14      Secondly, Prestige Gifting has not established that the contested decision obliges it to modify its own products or even its sales websites (see, a contrario, order of 9 March 2005, Microsoft v Commission, T‑201/04, not published, EU:T:2005:587, paragraphs 54 and 55). Thus, it is not apparent that its own activity, unlike that of services in competition with Google Shopping, is directly affected by that decision.
15      In that regard, given that the mere fact that an undertaking might possibly be affected by high prices caused by an anti-competitive agreement does not distinguish it sufficiently from other economic operators in the relevant sector to justify it being granted leave to intervene in a case relating to the decision finding the existence of that agreement (see, to that effect, orders of 8 June 2012 in Schenker v Air France and Commission, C‑589/11 P(I), not published, EU:C:2012:332, paragraph 15, and of 24 June 2016, Slovak Telekom v Commission, T‑851/14, not published, EU:T:2016:713, paragraph 31 and the case-law cited), the same applies, a fortiori, to an undertaking which, like Prestige Gifting, might be affected only by a less favourable display of advertising, following a Commission decision penalising its business partner for an abuse of a dominant position.
16      In those circumstances, Prestige Gifting has not established a direct, existing interest in the result of the case and its 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 Prestige Gifting, 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 Prestige Gifting has been unsuccessful and the Commission has applied for costs, Prestige Gifting must be ordered to bear its own costs and to pay those incurred by the Commission in relation to the application for leave to intervene. Since Google 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 Prestige Gifting Ltd for leave to intervene is dismissed.
2.      Prestige Gifting shall pay the costs of the Commission relating to the application for leave to intervene and bear its own costs.
3.      Google LLC and Alphabet Inc. shall bear their own costs relating to the application for leave to intervene.
Luxembourg, 7 December 2018.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.