Amazon.com and Others v Commission (Appeal - Intervention - Application submitted by a national competition authority - Order) [2022] EUECJ C-815/21P

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(Appeal – Intervention – Application submitted by a national competition authority – Interest in the result of the case – Application made after the expiry of the time limit laid down in Article 190(2) of the Rules of Procedure of the Court, but before the decision to open the oral part of the procedure – Intervention allowed to proceed)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 December 2021,

European Commission, represented by B. Ernst, T. Franchoo, G. Meessen and C. Sjödin, acting as Agents,

1 By their appeal, Amazon.com Inc., Amazon Services Europe Sàrl, Amazon EU Sàrl and Amazon Europe Core Sàrl seek to have set aside the order of the General Court of the European Union of 14 October 2021, Amazon.com and Others v Commission (T‑19/21, EU:T:2021:730; ‘the order under appeal’), by which the European Commission dismissed as inadmissible the appellants’ action for partial annulment of Commission Decision C(2020) 7692 final of 10 November 2020 initiating proceedings under Article 102 TFEU in Case AT.40703 – Amazon Buy – Box (‘the contested decision’).

2 By document lodged at the Court Registry on 13 April 2022, the Autorità Garante della Concorrenza e del Mercato (Competition and Market Authority, Italy) (‘the authority’) applied to intervene in the appeal in support of the form of order sought by the Commission, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Articles 129 and 130 of the Rules of Procedure of the Court of Justice.

3 The authority submits that the subject matter of the present dispute, to which its application to intervene relates, is such as to affect the lawfulness of the investigation which it initiated on 10 April 2019, under Article 102 TFEU, in accordance with Article 11 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), and, therefore, that of its decision of 30 November 2021 finding an infringement of Article 102 TFEU.

4 Following service on the parties by the Registrar of the Court, in accordance with Article 131(1) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 190(1) thereof, of the application to intervene made by the authority, only the appellants submitted observations on that application.

5 The appellants argue, first, that it is apparent from the ground on which the authority seeks to intervene that the contested decision produces legal effects. Secondly, they point out that that authority lodged its application to intervene after the expiry of the time limit laid down for that purpose by Article 190(2) of the Rules of Procedure and that it cannot, therefore, submit a statement in intervention.

6 As provided in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States and such institutions, is entitled to intervene in that case.

7 According to 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 (see, in particular, orders of the President of the Court of 27 February 2019, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, not published, EU:C:2019:174, paragraph 7, and of 11 March 2022, Silver and Others v Council, C‑499/21 P, not published, EU:C:2022:199, paragraph 6).

8 In that regard, it should be ascertained, inter alia, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is established. In principle, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the applicant for leave to intervene (see, inter alia, order of the President of the Court of 18 January 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission, C‑342/18 P, not published, EU:C:2019:42, paragraph 6 and the case-law cited).

9 In the present case, the appeal seeks the setting aside of the order under appeal, by which the General Court dismissed as inadmissible the action for annulment of the contested decision brought by the appellants on the basis of Article 263 TFEU.

10 In cases relating to applications to intervene submitted in the context of appeals against orders of inadmissibility, the President of the Court has dismissed such applications where the applicant for leave to intervene based his or her interest not on the result of the case before the Court of Justice in the appeal, namely the case concerning admissibility of the action for annulment of the contested decision, but on the result of the case which would be heard before the General Court if the Court of Justice decided to set aside the order under appeal (see, to that effect, orders 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, paragraphs 11 to 13, and of 18 January 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission, C‑342/18 P, not published, EU:C:2019:42, paragraphs 11 to 13).

11 In the present case, the authority considers that it has an interest in the result of the case before the Court. It submits that the question whether the grounds of the contested decision produce legal effects has a bearing on its decision of 30 November 2021 and, more broadly, on the scope of its own competence in proceedings relating to infringement of the competition rules.

12 It should be noted that, in paragraph 51 of the order under appeal, the General Court found that the ‘part’ of the contested decision disputed by the appellants, in so far as it excluded Italy from the territorial scope of the investigation initiated by the Commission, constituted a preparatory act not producing legal effects vis-à-vis the appellants, within the meaning of Article 263 TFEU. It inferred from this that the action brought by the appellants was inadmissible.

13 It should also be noted that the lawfulness of the investigation carried out by the authority under Article 102 TFEU, in accordance with Article 11 of Regulation No 1/2003, and, therefore, the lawfulness of its decision of 30 November 2021 closing that investigation and finding an infringement of Article 102 TFEU, in particular as regards the appellants, depends, in particular, on whether the part of the contested decision challenged by the appellants, in so far as it excludes Italy from the territorial scope of the investigation initiated by the Commission, produces legal effects.

14 If, as the General Court held, that part does indeed produce no legal effects, its possible unlawfulness, on the basis that the Commission was required, when adopting that decision, to initiate an investigation procedure covering the entire territory of the European Economic Area, and consequently to include the territory of Italy within the scope of that procedure, cannot have the effect of depriving the authority of the power which it had, under Article 11(6) of Regulation No 1/2003, to apply Articles 101 and 102 TFEU.

15 If, on the other hand, that part of the contested decision were to be regarded as producing such effects, the question of its lawfulness would have a direct impact on the authority’s competence following the initiation by the Commission of proceedings under Article 102 TFEU in Case AT.40703 – Amazon Buy – Box and, as a result, on the lawfulness, under EU law, of the decision of that authority of 30 November 2021.

16 It follows that the authority has a direct and present interest in the decision taken on the heads of claim put forward in the appeal and, consequently, an interest in the result of the present case on appeal, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.

17 Since the application to intervene was made after the expiry of the time limit referred to in Article 190(2) of the Rules of Procedure but before the decision to open the oral part of the procedure, it may, in accordance with Article 129(4) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 190(1) of those rules, be taken into consideration.

18 Where such an application is taken into consideration, the exceedance of that period deprives the intervener of the possibility of submitting a statement in intervention pursuant to Article 132(1) of the Rules of Procedure, applicable to appeal proceedings under Article 190(1) of those rules, but still allows that intervener to submit its observations during the hearing, if it takes place (order of the President of the Court of 4 June 2021, Commission v CK Telecoms UK Investments, C‑376/20 P, not published, EU:C:2021:488, paragraph 9 and the case-law cited).

19 In the present case, the application to intervene submitted by the authority should be taken into consideration under Article 129(4) of the Rules of Procedure and, consequently, its intervention in support of the Commission’s claims should be allowed, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 131(3) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 190(1) of those rules.

20 Since the application to intervene has been granted, the authority shall receive, pursuant to Article 131(3) of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 190(1) of those rules, a copy of every procedural document served on the parties.

21 In accordance with Article 129(4) of the Rules of Procedure, the authority may submit its observations during the hearing, if it takes place.

22 Under Article 137 of the Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

23 In the present case, as the authority’s application to intervene has been granted, the costs related to its intervention must be reserved.

1. The Autorità Garante della Concorrenza e del Mercato (Competition and Market Authority, Italy) is granted leave to intervene in Case C‑815/21 P in support of the form of order sought by the European Commission.

2. A copy of all the procedural documents shall be served on the Autorità Garante della Concorrenza e del Mercato by the Registrar.

3. The Autorità Garante della Concorrenza e del Mercato shall be entitled to submit its observations during the hearing, if it takes place.

4. The costs relating to the intervention of the Autorità Garante della Concorrenza e del Mercato are reserved.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Amazon.com and Others v Commission (Appeal - Intervention - Application submitted by a national competition authority - Order) [2022] EUECJ C-815/21P_CO (14 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C81521P_CO.html Cite as: EU:C:2022:596, ECLI:EU:C:2022:596, [2022] EUECJ C-815/21P_CO

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