ORDER OF THE PRESIDENT OF THE COURT
1 September 2022 (*)
(Appeal – Intervention – Interest in the result of the case – Application dismissed)
In Case C‑48/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 January 2022,
Google LLC, established in Mountain View (United States),
Alphabet Inc., established in Mountain View,
represented by A. Bray, avocate, T. Graf, Rechtsanwalt, D. Gregory, H. Mostyn, Barristers, M. Pickford QC, R. Snelders, advocaat, and C. Thomas, avocat
appellants,
the other parties to the proceedings being:
European Commission, represented by F. Castillo de la Torre, A. Dawes, N. Khan, H. Leupold and C. Urraca Caviedes, acting as Agents,
defendant at first instance,
Computer & Communications Industry Association, established in Washington (United States), represented by J. Killick, advocaat, A. Komninos, dikigoros, and A. Lamadrid de Pablo, abogado,
Federal Republic of Germany,
EFTA Surveillance Authority, represented by M.‑M. Joséphidès, M. Sánchez Rydelski and C. Simpson, acting as Agents,
Bureau européen des unions de consommateurs (BEUC),
established in Brussels (Belgium), represented by A. Fratini, avvocata,
Infederation Ltd, established in Crowthorne (United Kingdom), represented by S. Gartagani, K. Gwilliam, L. Hannah, Solicitors, and A. Howard QC,
Kelkoo SAS, established in Paris (France), represented by W. Leslie, Solicitor, and B. Meyring, Rechtsanwalt,
Verband Deutscher Zeitschriftenverleger eV,
established in Berlin (Germany),
Ladenzeile GmbH, formerly Visual Meta GmbH, established in Berlin,
BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV,
formerly Bundesverband Deutscher Zeitungsverleger eV, established in Berlin,
represented by T. Höppner and P. Westerhoff, Rechtsanwälte,
Twenga SA,
established in Paris, represented by L. Godfroid and S. Hautbourg, avocats,
interveners at first instance,
THE PRESIDENT OF THE COURT
having regard to the proposal of O. Spineanu-Matei, Judge-Rapporteur,
after hearing the Advocate General, J. Kokott,
makes the following
Order
1        By their appeal, Google LLC and Alphabet Inc. (together, ‘Google’) ask the Court of Justice to set aside the judgment of the General Court of the European Union of 10 November 2021, Google and Alphabet v Commission (Google Shopping) (T‑612/17, EU:T:2021:763) (‘the judgment under appeal’), by which the General Court annulled Article 1 of Commission Decision C(2017) 4444 final of 27 June 2017 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 – Google Search (Shopping)) (‘the decision at issue’), only in so far as the European Commission found an infringement of those provisions by Google and Alphabet on 13 national markets for general search services within the European Economic Area (EEA) on the basis of the existence of anticompetitive effects on those markets and dismissed their action as to the remainder.
2        By document lodged at the Court Registry on 17 June 2022, FairSearch AISBL applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, for leave to intervene in the appeal in support of the form of order sought by the Commission.
3        Following service on the parties by the Registrar of the Court of Justice, in accordance with Article 131(1) of the Rules of Procedure of the Court of Justice, applicable to the appeal proceedings pursuant to Article 190(1) thereof, of the application to intervene lodged by FairSearch, the Commission, Kelkoo SAS, the Bureau européen des unions de consommateurs (BEUC) and Google submitted written observations on that application. While the Commission, Kelkoo and BEUC stated that they had no observations to make, Google contended that that application should be dismissed.
The application to intervene
4        Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any natural or legal person is entitled to intervene in a case submitted to the Courts of the European Union, other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union, if that person can establish an interest in the result of that case.
5        According to the Court’s settled case-law, the concept of an ‘interest in the result of a 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 raised or the arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment or order (order of the President of the Court of 11 March 2022, Silver and Others v Council, C‑499/21 P, not published, EU:C:2022:199, paragraph 6 and the case-law cited).
6        It should be ascertained in particular whether the applicant for leave to intervene is directly affected by the contested measure and whether its interest in the result of the case is established (order of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, not published, EU:C:2015:135, paragraph 7 and the case-law cited). In principle, an interest in the result of the case can be considered to be sufficiently direct only to the extent to which that result is likely to alter the legal position of the person seeking leave to intervene (order of the President of the Court of 31 May 2022, Naturgy Energy Group v Commission, C‑698/21 P, not published, EU:C:2022:417, paragraph 7 and the case-law cited).
7        In that regard, according to the case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (see, to that effect, 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 28 September 1998, Pharos v Commission, C‑151/98 P, EU:C:1998:440, paragraph 6).
8        In the present case, the appeal seeks to have set aside the judgment under appeal, by which the General Court annulled Article 1 of the decision at issue, only in so far as the Commission found an infringement on 13 national markets for general search within the EEA on the basis of the existence of anticompetitive effects on those markets and dismissed the action as to the remainder. The General Court considered that the finding of an infringement of Article 102 TFEU and Article 54 of the Agreement on the European Economic Area by Google had to be confirmed in so far as it concerned abuses of a dominant position on 13 national markets for specialised product search services.
9        FairSearch states that it is an international non-profit association whose object is to promote any initiative to foster, in the field of the internet, economic development, innovation and consumer freedom, in particular by defending competition in online search and associated services. It states that its members are active in the information technology sector and mentions five members, stating that two of those members are global IT service providers, another member represents the interests of the image industry and two other members compete with Google directly, one on the online search services market and the other, namely Infederation Ltd, which operates under the brand name ‘Foundem’ (‘Foundem’), on the market for comparison shopping and other vertical search services.
10      In that regard, it must be noted that Google stated, in essence, in its observations on the application to intervene, that its appeal seeks to have set aside the judgment under appeal in so far as the General Court confirmed the finding of abuse of a dominant position on the national markets for specialised product search services only. It must also be stated that the Commission did not lodge a cross-appeal against the judgment under appeal. Accordingly, the annulment of the decision at issue in so far as the Commission found an infringement on 13 national markets for general search within the EEA on the basis of the existence of anticompetitive effects on those markets is not disputed in the present appeal.
11      Since it is apparent from FairSearch’s application to intervene that only one of its members, namely Foundem, is active on the market for comparison shopping, it must be held that the interest relied on by FairSearch is not, in that regard, different from that of Foundem and is not distinct from that interest.
12      The adoption of a broad interpretation of the right of representative associations to intervene is intended to facilitate assessment of the context of cases while avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (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). Accordingly, in the present case, FairSearch cannot rely on such a justification for its interest to intervene, since its intervention in the appeal proceedings would not involve avoiding multiple individual interventions, but representing the interests of its sole member active on the market for comparison shopping, which is, moreover, already a party to these proceedings, with the result that FairSearch’s interest is not distinct from that of that member. Thus, that broad interpretation cannot serve as a basis for FairSearch’s right to intervene in the circumstances of the present case.
13      Last, FairSearch submits that, although the decision at issue directly addresses the Google practices that have led to anticompetitive diversion of traffic in relation to comparison shopping services offered by members of FairSearch, Google deploys identical or similar practices on other markets. It relies on the fact that the setting aside of the judgment under appeal and/or the annulment of the decision at issue would effectively permit Google to revert to abusing its dominant position in online search to foreclose competition and to continue to expand the application of those anticompetitive practices on additional search markets, such as the financial search, job search or property search markets.
14      However, the interest thus relied on by FairSearch, alleging a possible extension of the practices alleged against Google in the judgment under appeal to other markets, does not relate to the outcome of the appeal as such. Such an indirect interest is not sufficient to establish that there is an interest in the result of the case submitted to the Court, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and of the case-law referred to in paragraph 6 of this order.
15      It follows from all the foregoing considerations that FairSearch has not demonstrated that it has an interest in the result of the case submitted to the Court within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. Consequently, its application to intervene must be dismissed.
Costs
16      Under Article 138(1) of the Rules of Procedure of the Court of Justice, 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. Since Google has applied for costs and FairSearch’s application to intervene has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by Google in connection with that application. Since the Commission, Kelkoo and BEUC have not applied for FairSearch to be ordered to pay the costs, those parties must be ordered to bear their own costs relating to that application.
On those grounds, the President of the Court hereby orders:
1.      The application to intervene submitted by FairSearch AISBL is dismissed.
2.      FairSearch AISBL shall bear its own costs and pay those incurred by Google LLC and Alphabet Inc.
3.      The European Commission, Kelkoo SAS and the Bureau européen des unions de consommateurs (BEUC) shall bear their own costs.
Luxembourg, 1 September 2022.
A. Calot Escobar
K. Lenaerts
Registrar
President
*      Language of the case: English.