Commission v Amazon Services Europe (Appeal - Interim relief - Application to intervene - Confidentiality - Order) [2023] EUECJ C-639/23P(R)

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APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 24 October 2023,

European Commission, represented by L. Armati, A. de Gregorio Merino and P.-J. Loewenthal, acting as Agents,

Amazon Services Europe Sàrl, established in Luxembourg (Luxembourg), represented by A. Conrad and M. Frank, Rechtsanwälte, I. Ioannidis, dikigoros, and R. Spanó, avocat,

1 By its appeal, the European Commission seeks to have set aside the order of the President of the General Court of the European Union of 27 September 2023, Amazon Services Europe v Commission (T-367/23 R, EU:T:2023:589), by which the President suspended the operation of Commission Decision C(2023) 2746 final of 25 April 2023 designating Amazon Store as a very large online platform in accordance with 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) in so far as, by virtue of that decision, Amazon Store would be required to make an advertisement repository publicly available, in accordance with Article 39 of that regulation, without prejudice to the requirement for Amazon Services Europe Sàrl to compile that repository.

2 By documents lodged at the Court Registry on 14 and 23 November 2023, pursuant to the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 130 of the Rules of Procedure of the Court of Justice, the Council of the European Union and the European Parliament, respectively, applied for leave to intervene in the present dispute in support of the form of order sought by the Commission.

3 By documents lodged at the Court Registry on 20, 23 and 27 November 2023, Amazon Services Europe requested that the Court treat certain information as confidential vis-à-vis the Council and the Parliament. By letter of 30 November 2023, the Commission stated its position on those requests for confidential treatment.

4 Under the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union, ‘Member States and institutions of the [European] Union may intervene in cases before the Court of Justice’.

5 Consequently, the Council and the Parliament must be granted leave to intervene in the present dispute in support of the form of order sought by the Commission.

6 The Council and the Parliament are, in accordance with Article 131(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 190(1) of those rules, entitled to receive a copy of every procedural document served on the parties, unless those parties have identified secret or confidential items or documents which, if communicated to the intervener, the parties claim would be prejudicial to them.

7 In the present case, by documents lodged at the Court Registry on 20, 23 and 27 November 2023, Amazon Services Europe requested that the Court treat as confidential, vis-à-vis the Council and the Parliament, several elements of its observations on the appeal and of three other documents. For that purpose, Amazon Services Europe provided a non-confidential version of those observations and of those three other documents.

8 In that regard, it is important, in the first place, to note that one of those three other documents, namely the expert report annexed to the application for interim measures submitted by Amazon Services Europe before the General Court, is not among the procedural documents served on the parties before the Court of Justice, and that the requests for confidential treatment submitted by Amazon Services Europe must therefore be regarded as being devoid of purpose in so far as they relate to that report.

9 As regards, in the second place, the observations of Amazon Services Europe on the appeal and the documents constituting annexes to the appeal, it should, admittedly, be noted that the elements of those observations and of those documents referred to in the requests for confidential treatment submitted by Amazon Services Europe contain a range of information relating to its activities in respect of which it cannot be ruled out that the information is not publicly available.

10 That said, it must be stated that all that information was placed on the file in the proceedings at first instance by Amazon Services Europe itself, without any claim that disclosure of that information to the Commission would be prejudicial to it and, consequently, without any request that the General Court ensure that that information be treated as confidential vis-à-vis the Commission.

11 In the documents referred to in paragraph 7 of the present order, Amazon Services Europe does not put forward any reason that might establish specifically why it would be necessary to take the view, in that context, that disclosure of that information to other institutions of the European Union would be prejudicial to it.

12 Consequently, the requests for confidential treatment submitted by Amazon Services Europe must be refused and a copy of every procedural document served on the parties must be communicated to the Council and the Parliament.

13 Furthermore, although Article 132(1) of the Rules of Procedure provides that the intervener may submit a statement in intervention within one month after communication of the procedural documents, that provision is not applicable to the summary procedure referred to in Article 39 of the Statute of the Court of Justice of the European Union, which is governed by special procedural rules defined, inter alia, in Articles 160 to 166 of the Rules of Procedure (order of the Vice-President of the Court of 18 October 2023, Council v Mazepin, C-585/23 P(R), EU:C:2023:829, paragraph 17).

14 In this case, in order to ensure that the present case is dealt with expeditiously and since the applications to intervene were submitted shortly before the close of the written part of the procedure, the Council and the Parliament may submit a statement in intervention within two weeks of the communication referred to in the previous paragraph.

15 Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 184(1) thereof, a decision as to costs is to be given in the judgment or order which closes the proceedings.

16 In the present case, since the applications to intervene of the Council and the Parliament are granted, the costs relating to their intervention must be reserved.

1. The Council of the European Union and the European Parliament are granted leave to intervene in Case C-639/23 P(R) in support of the form of order sought by the European Commission.

2. The requests for confidential treatment submitted by Amazon Services Europe Sàrl are refused.

3. A copy of every procedural document shall be served on the Council of the European Union and the European Parliament by the Registrar.

4. A period shall be prescribed within which the Council of the European Union and the European Parliament may submit a statement in intervention.

5. The costs relating to the interventions by the Council of the European Union and the European Parliament are reserved.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Amazon Services Europe (Appeal - Interim relief - Application to intervene - Confidentiality - Order) [2023] EUECJ C-639/23P(R)_CO (24 October 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C63923P(R)_CO.html Cite as: EU:C:2023:1006, [2023] EUECJ C-639/23P(R)_CO, ECLI:EU:C:2023:1006

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