ORDER OF THE PRESIDENT OF THE GENERAL COURT
27 September 2023 (*)
(Interim relief – Digital services – Regulation (EU) 2022/2065 – Very large online platforms – Application for suspension of operation of a measure – Urgency – Prima facie case – Weighing of competing interests)
In Case T‑367/23 R,
Amazon Services Europe Sàrl, established in Luxembourg (Luxembourg), represented by A. Conrad, M. Frank, R. Spanó and I. Ioannidis, lawyers,
applicant,
v
European Commission, represented by L. Armati and P.‑J. Loewenthal, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT,
having regard to the order of 28 July 2023, Amazon Services Europe v Commission (T‑367/23 R, not published),
makes the following
Order
1 By its application based on Articles 278 and 279 TFEU, the applicant, Amazon Services Europe Sàrl, seeks suspension of 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) (‘the contested decision’).
Background to the dispute and forms of order sought
2 The applicant belongs to the Amazon Group, which is a multinational group of companies. Its business activities comprise online retail and other services such as cloud computing and digital streaming. It provides marketplace services to third-party sellers enabling them to offer products for sale on the Amazon Store. It also supports third-party sellers in a variety of ways, including by offering optional storage and logistics services as well as various tools to assist them in managing and growing their activities, in particular on the Amazon Store.
3 Article 33(4) of Regulation 2022/2065 provides that the European Commission is to adopt a decision designating as a very large online platform or a very large online search engine the online platform or the online search engine which has a number of average monthly active recipients of the service in the European Union equal to or higher than 45 million.
4 According to Article 38 of Regulation 2022/2065, providers of very large online platforms and of very large online search engines that use recommender systems are required to provide at least one option for each of their recommender systems which is not based on profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).
5 According to Article 39(1) of Regulation 2022/2065, providers of very large online platforms or of very large online search engines that present advertisements on their online interfaces are required to compile and make publicly available in a specific section of their online interface, through a searchable and reliable tool that allows multicriteria queries and through application programming interfaces, a repository containing the information referred to in paragraph 2 of that article, for the entire period during which they present an advertisement and until one year after the advertisement was presented for the last time on their online interfaces.
6 On 25 April 2023, by the contested decision, the Commission designated Amazon Store as a very large online platform in accordance with Article 33(4) of Regulation 2022/2065.
7 By application lodged at the Registry of the General Court on 5 July 2023, the applicant brought an action seeking annulment of the contested decision.
8 By separate document, lodged at the Court Registry on 6 July 2023, the applicant made the present application for interim measures, in which it claims that the President of the Court should:
– order suspension of operation of the contested decision in so far as it imposes on the applicant
– the obligation to provide users with an option for each of its recommender systems which is not based on profiling under Article 38 of Regulation 2022/2065;
– the obligation to compile and make publicly available an advertisement repository under Article 39 of Regulation 2022/2065
until a final decision in the main proceedings has been rendered by the General Court;
– if a decision on the present application for interim measures cannot be taken before 1 August 2023, order an immediate suspension of the applicant’s aforementioned obligations to provide users with an option for each recommender system used on Amazon Store which is not based on profiling and the applicant’s obligation to provide an advertisement repository for advertisements placed on Amazon Store pursuant to Article 157(2) of the Rules of Procedure of the General Court until such time as the President of the Court has heard and determined the present application in order to prevent irreparable harm to the applicant.
9 In its observations on the application for interim measures, lodged at the Court Registry on 20 July 2023, the Commission contends, in essence, that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs of the present proceedings.
Law
Admissibility
10 The Commission submits, in its observations on the application for interim measures, that the action for annulment is, to a large extent, manifestly inadmissible on the ground that, by the second part of the first plea and by the second and third pleas, the applicant challenges the legality of provisions of Regulation 2022/2065 which neither constitute the legal basis for the contested decision nor have a direct legal connection to that decision.
11 In that regard, it must be noted that, according to settled case-law, the admissibility of the main action must not, in principle, be examined in proceedings for interim measures. However, where it is alleged that the main action is manifestly inadmissible, the party seeking the interim measures must establish that there are grounds for concluding prima facie that the main action, to which the application for interim measures relates, is admissible, in order to prevent a situation in which that party is able, by means of an application for interim measures, to obtain suspension of the operation of a measure which the Court subsequently refuses to declare void because, on examination of the substance of the case, the application is declared inadmissible. Such examination, by the judge hearing an application for interim measures, of the admissibility of the main action is necessarily summary, given the urgent nature of proceedings for interim measures (see, to that effect, orders of 18 November 1999, Pfizer Animal Health v Council, C‑329/99 P(R), EU:C:1999:572, paragraph 89, and of 12 October 2000, Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council, C‑300/00 P(R), EU:C:2000:567, paragraphs 34 and 35).
12 Thus, in proceedings for interim measures, the admissibility of the main action may be subject only to a prima facie examination, and the judge hearing the application for interim measures should declare that application inadmissible only if the admissibility of the corresponding main action can be wholly excluded. Otherwise, to rule on the admissibility of the main action at the stage of the proceedings for interim measures, when its admissibility is not prima facie wholly excluded, would be tantamount to prejudging the decision of the Court in the main action (see order of 20 June 2014, Wilders v Parliament and Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 20 and the case-law cited).
13 It is apparent from the case-law that a plea of illegality raised indirectly under Article 277 TFEU is admissible only if there is a link between the contested act and the provision which is the subject matter of the plea. Since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any act of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. It follows that the general act claimed to be illegal must be applicable, directly or indirectly, to the issue with which the act is concerned and there must be a direct legal connection between the contested individual decision and the general act in question (see judgment of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 56 and the case-law cited).
14 However, it is also settled case-law that Article 277 TFEU must be interpreted sufficiently broadly to enable effective judicial review of the legality of acts of general application adopted by the institutions in favour of persons excluded from direct actions against such acts. Thus, the scope of that article must extend to acts of the institutions which were relevant to the adoption of the decision which is the subject matter of the action for annulment, in the sense that that decision must essentially be based on them, even if such acts did not formally constitute the legal basis of that decision (see judgment of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 57 and the case-law cited). Furthermore, the rules of what is one single regime cannot be artificially separated for the purposes of examining a plea of illegality (see, to that effect, judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 76).
15 In the present case, first, it should be noted that, by the second part of the first plea and by the second and third pleas in the main action on which the application for interim measures is based, read in the light of the case-law cited in paragraph 70 below, the applicant has identified with sufficient clarity the provisions against which the plea of illegality is raised.
16 Second, it appears, prima facie, that the rules of what is one single regime would be artificially separated. The outcome of the contested decision is the applicability of the obligations which the applicant claims to be unlawful.
17 Third, although Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) is not intended to change the system of judicial review laid down by the Treaties, and in particular the rules relating to the admissibility of direct actions brought before the Courts of the European Union, (see, to that effect, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43 and the case-law cited), the fact remains that, as is clear from the case-law cited in paragraph 14 above, Article 277 TFEU must be interpreted sufficiently broadly to enable effective judicial review of the legality of acts of general application adopted by the institutions in favour of persons excluded from direct actions against such acts.
18 Fourth, the present case raises new issues which will have to be resolved by a thorough examination in the main proceedings.
19 In the light of the foregoing, it must be concluded that the plea of illegality raised by the applicant in the main action cannot be rejected as being manifestly inadmissible.
General considerations
20 It is apparent from a reading of Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of an act challenged before the Court be suspended or prescribe any necessary interim measures pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
21 Pursuant to the first sentence of Article 156(4) of the Rules of Procedure, applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
22 Thus, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main proceedings. Those conditions are cumulative, with the result that an application for interim measures must be dismissed if any one of them is not met. The judge hearing the application for interim measures must, where appropriate, also weigh up the interests involved (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).
23 In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
24 Having regard to the material in the case file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
25 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
The condition relating to urgency
26 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts. In order to attain that objective, urgency must generally be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party requesting the interim protection. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable harm (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27 and the case-law cited).
27 It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
The obligation arising from Article 38 of Regulation 2022/2065
28 In the present case, in order to demonstrate that the alleged harm is serious and irreparable, the applicant claims that the obligation to provide an opt-out for its recommender systems pursuant to Article 38 of Regulation 2022/2065 will result in a significant and irreversible loss of its market share, causing it serious and irreparable harm.
29 As a result of its legal obligation to introduce an opt-out option for recommender systems under Article 38 of Regulation 2022/2065, the applicant claims that it is required to alter one of the fundamental pieces of software underpinning its business with immediate and severe negative effects on customers’ shopping experiences. In addition, it states that it will be faced with a significant competitive disadvantage in comparison with online marketplaces and retailers which are not designated as very large online platforms.
30 According to the applicant, without the ability to customise, it would face significant hurdles in meeting customer expectations. Instead of showing products of potential interest, it would display products with little relevance to customers, meaning that it would not be able to help them discover new, relevant and useful items. This would undermine the core function of marketplaces, namely, to facilitate transactions, and would result in a bad shopping experience for the customers using the opt-out.
31 The applicant states that many customers who opt out will not be fully aware of the consequences and the impact of such a decision. Those customers, in its view, will not link a subsequent bad shopping experience to their previous decision to opt out from recommender systems. Instead, they will assume that that negative shopping experience reflects a general deficiency on the part of the applicant. As a result, those customers might not opt back in for recommender systems at a later stage and will reduce their use of the Amazon Store.
32 The resulting loss of market share would, according to the applicant, be irreparable. Customers who have stopped using an online retailer or an online marketplace because of a negative shopping experience will be unlikely to return to those services. Those effects would begin to occur from the moment at which the recommender opt-out launches.
33 In addition, the applicant adds that refraining from customisation would also harm the interests of third-party sellers (including many small and medium-sized businesses) that offer products on the Amazon Store.
34 Finally, the applicant claims that the damage arising from the obligation to introduce a recommender opt-out would not be quantifiable. In a highly dynamic and competitive market with many unknowable variables at play, the applicant would not be able to prove, in the context of a future action for financial redress from the European Union, the extent to which it has lost customers and third-party sellers over the years specifically as a result of its obligation to implement a recommender opt-out, as opposed to other factors such as new developments in technology.
35 In that regard, in the first place, it must be held that the harm alleged by the applicant is uncertain. Article 38 of Regulation 2022/2065 does not prohibit the use of recommender systems, but merely requires the platforms concerned to provide an opt-out for them. It will thus be for the consumer to decide whether he or she wishes to make use of it.
36 There is, however, nothing to prevent the applicant from taking precise and effective measures to inform its customers fully of the benefits of the recommender systems and the risks that will ensue from opting out of them so that they are fully aware of the consequences and the impact of their decision in the event of opting out.
37 If the applicant were to take such measures, customers who have a negative experience after opting out would be aware that it was caused by that choice, and that they could reactivate the recommender system in order to restore the degree of satisfaction to which they were accustomed. It is therefore not certain that customers will reduce their use of the Amazon Store if they have the choice of opting out of the recommender system.
38 Finally, in that context, the systematic references to the expert opinion annexed to the application for interim measures are not sufficient to discharge the applicant’s burden of proving the existence of irreparable harm.
39 According to settled case-law, an application for interim measures must by itself enable the defendant to prepare its observations and the judge hearing the application to rule on it, as necessary, without any other supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (order of 30 April 2010, Ziegler v Commission, C‑113/09 P(R), not published, EU:C:2010:242, paragraph 13; see, also, order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 55 and the case-law cited).
40 In any event, it must be observed that the expert acknowledges, in paragraph 10.76 of his opinion, in Annex AA.2 to the application for interim measures, that the applicant’s ability to recapture customers who opt out from recommender systems and turn to other purchase channels is uncertain.
41 According to well-established case-law, there is urgency only if the serious harm feared by the applicant for interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. In any event, it remains for that party to prove the facts on the basis of which it claims that such harm is likely to occur, since it is clear that purely hypothetical harm, based on future and uncertain events, cannot serve as a basis for granting interim measures (see, to that effect, order of 27 February 2015, Spain v Commission, T‑826/14 R, EU:T:2015:126, paragraph 33 and the case-law cited).
42 In the second place, assuming that the implementation of an opt-out option does indeed encourage customers to switch from the Amazon Store to competing platforms which the Commission has not designated under Article 33 of Regulation 2022/2065, the alleged loss of market share constitutes purely financial harm in that it consists of the loss of revenue from sales on the relevant market.
43 According to settled case-law, the loss of market share consists in the loss of the profits liable to be realised in the future on sales of the product in question. A market share can thus clearly be represented in financial terms, as the holder of that market share can benefit from it only in so far as it generates profit for him or her (see order of 30 April 2010, Xeda International v Commission, T‑71/10 R, not published, EU:T:2010:173, paragraph 41 and the case-law cited).
44 In that context, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, where applicable, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited). Since imminent disappearance from the market does constitute damage that is both irreparable and serious, adoption of the interim measure sought appears justified in such a situation (order of 9 June 2010, Colt Télécommunications France v Commission, T‑79/10 R, not published, EU:T:2010:228, paragraph 37).
45 Furthermore, in accordance with settled case-law, pecuniary damage cannot, except in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before that person suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).
46 Although the case-law also takes account of the fact that, if the interim measure sought were not granted, the applicant’s market share would be irremediably affected, that situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders. An applicant for interim measures who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that share is impossible due to structural or legal obstacles (see order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 35 and the case-law cited).
47 In the present case, it must be held that the applicant neither establishes nor even claims that it is in a position that is liable to imperil its financial viability before final judgment is given in the main action, in the light of the size, turnover and characteristics of the group to which it belongs.
48 The only quantitative element put forward by the applicant is apparent from the claim that the estimate of the negative impact of the recommender system could fall within a range of between 500 million US dollars (USD) and USD 3.8 billion.
49 Apart from that claim, the applicant provides no figures, from accounts or otherwise, capable of substantiating the existence of serious and irreparable harm.
50 In that regard, the alleged amount of between USD 500 million and USD 3.8 billion reflects an estimate of the damage which the applicant claims to suffer as a result of the loss of market share resulting from Amazon Store’s compliance with the obligation laid down in Article 38 of Regulation 2022/2065. Its argument that it is not possible to quantify the alleged financial harm must therefore be rejected. That harm, assuming it to be established, could therefore be the subject of an action for damages which the applicant could bring if it were successful in the main proceedings (see, to that effect, order of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 50 and the case-law cited).
51 In the third place, as regards the applicant’s argument that the contested decision would also harm the interests of third-party sellers, it should be noted that the serious and irreparable harm alleged by the applicant, which the suspension of operation of the contested decision is intended to prevent, may be taken into account by the judge hearing the application for interim measures, in the context of his or her examination of the condition relating to urgency, only in so far as it is likely to affect the interests of the applicant for the interim measure.
52 According to settled case-law, an applicant for interim measures cannot, in order to establish urgency, rely on damage caused to the rights of third parties or to the general interest (see, to that effect, order of 18 May 2022, OG and Others v Commission, T‑101/22 R, not published, EU:T:2022:305, paragraph 30 and the case-law cited).
53 It follows that any harm which the implementation of the contested decision may cause to a party other than the applicant for interim measures may be taken into consideration by the judge hearing the application for interim measures only when weighing up the interests at stake (see, to that effect, order of 13 January 2009, Occhetto and Parliament v Donnici, C‑512/07 P(R) and C‑15/08 P(R), EU:C:2009:3, paragraph 58).
54 Therefore, the harm liable to be caused to third-party sellers, relied on by the applicant, will be taken into consideration, if appropriate, only in the context of weighing up the interests involved.
55 It follows that the applicant has not established the existence of serious and irreparable harm which would result from its compliance with Article 38 of Regulation 2022/2065.
The obligation arising from Article 39 of Regulation 2022/2065
56 The applicant submits that the obligation to compile and make available an advertisement repository entails the disclosure of confidential information which would cause serious and irreparable harm to its advertising activities and, by extension, to all its activities. That confidential information concerns both the applicant and its advertisers. As such, its disclosure would weaken the applicant’s competitive position and irreversibly lead to a loss of market share, which would be practically impossible to quantify precisely.
57 According to the applicant, the advertisement repository identifies advertisers, targeting parameters and the total number of customers that can be achieved through those parameters. Once that information is disclosed into the public domain, it would be very difficult to repair since competitors of very large online platforms would retain the knowledge of which strategies and technologies were most effective. Publication of that information would therefore seriously and irretrievably harm its advertising activities and the confidential advertising strategies of its advertising partners.
58 In addition, the applicant states that third-party sellers will move their business to other sales channels, such as their own retail stores or other smaller online marketplaces which are not subject to Article 39 of Regulation 2022/2065, even if the requirement to maintain the repository is later removed. Consequently, it takes the view that it would irreversibly lose market shares to its competitors, both for its general retail activities and for its advertising activities.
59 Finally, the applicant adds that the harm suffered is not only pecuniary in nature and cannot be quantified solely in financial terms. It will be difficult for the applicant to prove causality of the impact of the advertisement repository on its business or even determine the period during which the harm occurred. This means that any claim for damages which it might bring after the outcome of the main proceedings would be devoid of purpose. This is particularly true given that the advertisement repository will reveal confidential information publicly.
60 The Commission contends, in essence, that the applicant is required to make most of the information in question publicly available pursuant to several legal acts of the European Union and that the only change brought about by Article 39 of Regulation 2022/2065 is to group the relevant information in a repository, not to make it publicly available.
61 As a preliminary point, it should be noted that the applicant relies on harm resulting from the disclosure of allegedly confidential information. In such a case, in order to assess whether there is serious and irreparable harm, and without prejudice to the examination of the condition that there be a prima facie case, which is linked to, but distinct from, that assessment, the judge hearing the application for interim measures must start from the premiss that the allegedly confidential information was indeed confidential, as claimed by the applicant (see, to that effect, order of 28 November 2013, EMA v AbbVie, C‑389/13 P(R), not published, EU:C:2013:794, paragraph 38).
62 Consequently, for the purposes of the present examination of the condition relating to urgency, the information at issue must be regarded as being confidential. On the other hand, the question of whether the advertisement repository provided for in Article 39 of Regulation No 2022/2065 will require the disclosure of confidential information of both the applicant and its advertisers falls within the scope of the assessment of a prima facie case in the third plea relied on by the applicant in support of its action against the contested decision.
63 In that context, the question of the extent to which the disclosure of allegedly confidential information will cause serious and irreparable harm depends on a combination of circumstances, such as, inter alia, the professional and commercial importance of the information for the undertaking seeking its protection and the utility of that information for other market participants which are liable to examine and use it subsequently (see, to that effect, order of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 42).
64 In the present case, it must be held that the obligations relating to the advertisement repository, which provides information about the advertisements on the applicant’s platform, enable third parties to access significant trade secrets concerning the advertising strategies of the applicant’s advertising customers. It reveals strategic information such as campaign duration, campaign reach and targeting parameters. By doing so, it will allow competitors and the applicant’s advertising partners to draw market insights on an ongoing basis, to the detriment of the applicant and its advertising partners.
65 The evidence put forward by the applicant therefore makes it possible to establish that it cannot await the outcome of the main proceedings without suffering serious harm.
66 Furthermore, in so far as disclosure of the information at issue, taken together, would make it extremely sensitive as it would give the general public a comprehensive insight, with a very high level of detail, into the applicant’s sensitive commercial dealings with the majority of its customers, that could also increase exponentially and artificially transparency in the market in question by facilitating access by each of the applicant’s competitors to sensitive information pertaining to its commercial dealings with its customers.
67 Accordingly, the alleged harm should be considered sufficiently serious. On the assumption that the information at issue is confidential, its disclosure would necessarily cause significant harm to the applicant.
68 As regards the question of whether such harm is irreparable, it is indeed clear that annulment of the contested decision by the Court could not undo the effects of disclosure of the information at issue, since once a person has acquired knowledge of that information by reading it, that knowledge cannot be taken back.
69 In view of the foregoing considerations, it must be found that the condition relating to urgency is satisfied in the present case, since the likelihood of the applicant suffering serious and irreparable harm has been established to the requisite legal standard.
Prima facie case
70 According to settled case-law, the condition relating to the establishment of a prima facie case is satisfied where at least one of the pleas put forward by the applicant for interim measures in support of the main action appears, prima facie, to be not unfounded. That is the case, inter alia, where one of the pleas relied on reveals the existence of a major legal or factual disagreement, the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings (see, to that effect, order of 8 April 2014, Commission v ANKO, C‑78/14 P‑R, EU:C:2014:239, paragraph 15 and the case-law cited).
71 In order to demonstrate that the contested decision is, prima facie, unlawful, the applicant claims that Article 39 of Regulation 2022/2065 infringes the principle of equal treatment and constitutes a disproportionate restriction on the applicant’s rights under Articles 7, 16 and 17 of the Charter.
72 In the first place, the applicant states that the advertisement repository put in place pursuant to Article 39 of Regulation 2022/2065 reveals strategic and confidential information, such as campaign duration, campaign reach and targeting parameters, allowing competitors and the applicant’s advertising partners to draw market insights on an ongoing basis, to the detriment of the applicant and its advertising partners. The applicant takes the view that the obligation to compile and make publicly available an advertisement repository will, consequently, disrupt its current business relations with its advertising partners, which will make Amazon Store less attractive for advertisers and impose a significant implementation burden and ongoing costs.
73 In the second place, the applicant submits that there is a less onerous alternative, in so far as the objective of facilitating supervision and research into emerging risks brought about by the distribution of advertising online could be achieved by making a reasonably structured register available to authorised regulators and researchers of the type referred to in Article 40(8) of Regulation 2022/2065, subject to appropriate provisions for the protection of trade secrets. This, it argues, would guarantee the objective of supervision and research, while protecting confidential information in the repository by not making it available to the general public.
74 The Commission disputes that line of argument. It claims, in particular, that the information which the applicant is required to compile in its advertisement repository pursuant to Article 39 of Regulation 2022/2065 is not confidential, since several legal acts of the European Union require the information in question to be made publicly available.
75 In the present case, with regard to the applicant’s argument that the advertisement repository put in place pursuant to Article 39 of Regulation 2022/2065 reveals strategic confidential information, it should be noted that it appears, prima facie, that, at the very least, some of the information which the applicant is required to publicise in its advertisement repository has not yet been made publicly available.
76 As regards the information which the applicant is required to provide under Article 39(2)(d) of Regulation 2022/2065, namely the period during which the advertisement was presented, Article 6(b) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1) prima facie concerns only information relating to the natural or legal person on whose behalf the commercial communication is made, and not the period during which the advertisement was presented, provided for in Article 39(2)(d) of that regulation, as the Commission claims. Similarly, Article 26(1)(a) to (c) of that regulation also does not concern information relating to the period during which the advertisement was presented.
77 Furthermore, as regards the information which the applicant is required to provide under Article 39(2)(g) of Regulation 2022/2065, namely the total number of recipients of the service reached and, where applicable, aggregate numbers broken down by Member State for the group or groups of recipients that the advertisement specifically targeted, it must be held that Article 26(1)(d) of that regulation does not, prima facie, concern that type of information either. Similarly, it appears that Article 5(1) of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ 2019 L 186, p. 57), according to which providers of online intermediation services are required to set out in their terms and conditions the main parameters determining ranking and the reasons for the relative importance of those main parameters as opposed to other parameters, does not, prima facie, concern the information referred to in Article 39(2)(g) of Regulation 2022/2065 either.
78 Lastly, it seems that Article 39 of Regulation 2022/2065 does not provide for the same type of information as that provided for in Article 15(1)(h) of Regulation 2016/679, which concerns information relating to the existence of automated decision-making, including profiling, and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.
79 Consequently, it must be concluded that, without prejudging the Court’s decision in the main action, that plea relied on by the applicant appears, prima facie, not to lack a serious basis and therefore calls for a detailed examination which cannot be carried out by the judge hearing the application for interim measures but must be conducted in the main proceedings.
Weighing up of interests
80 According to settled case-law, the weighing up of the various interests involved requires the judge hearing the application for interim measures to determine whether or not the interest of the applicant for interim measures in obtaining such measures outweighs the interest in the immediate implementation of the contested act by examining, more specifically, whether the annulment of that act by the court hearing the main application would make it possible to reverse the situation which would have arisen if it had been implemented immediately and, conversely, whether suspension of its implementation would prevent it from taking full effect if the main action were dismissed (see order of 26 June 2003, Belgium and Forum 187 v Commission, C‑182/03 R and C‑217/03 R, EU:C:2003:385, paragraph 142 and the case-law cited).
81 With more particular regard to the condition that the legal situation created by an interim order must be reversible, it must be recalled that the purpose of the procedure for interim measures is to guarantee the full effectiveness of the future decision in the main action. Consequently, those proceedings are necessarily an adjunct to the main proceedings to which they are attached, with the result that the decision of the court hearing the application for interim measures must be provisional in the sense that it cannot either prejudge the future decision in the main proceedings or deprive it of all practical effect (see order of 1 September 2015, France v Commission, T‑344/15 R, EU:T:2015:583, paragraph 47 and the case-law cited).
82 In the present case, the Court will be called upon to rule, in the main proceedings, on the question as to whether the contested decision must be annulled since it will require the applicant to compile and make publicly available an advertisement repository, pursuant to Article 39 of Regulation 2022/2065. In order to retain the practical effect of a judgment annulling the contested decision, the applicant must be in a position to prevent the unlawful disclosure of that information. A judgment ordering annulment would be rendered illusory and deprived of practical effect if the present application for interim measures were to be dismissed, since that dismissal would have the effect of allowing the immediate disclosure of the information at issue, thereby effectively prejudging the future decision in the main action, namely that the action for annulment would be dismissed.
83 Consequently, the interest defended by the applicant must prevail over the interest in the dismissal of the application for interim measures, a fortiori where the grant of the interim measures requested amounts to no more than maintaining the status quo for a limited period.
84 Consequently, since all the conditions to that effect have been met, the application for the suspension of operation of the contested decision should be granted, in so far as, by virtue of that decision, Amazon Store will be required to make publicly available an advertisement repository, pursuant to Article 39 of that regulation. The suspension of operation of the contested decision is, however, granted without prejudice to the requirement for the applicant to compile the advertisement repository, which it claims to be in the process of creating.
85 As the present order closes the interim proceedings, the order of 28 July 2023, Amazon Services Europe v Commission (T‑367/23 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, under which the Commission was ordered to suspend operation of the contested decision until the date of the order terminating the present proceedings for interim relief, must be cancelled.
86 Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. Operation of the decision of the European Commission of 25 April 2023, with reference C(2023) 2746 final, 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), is suspended in so far as, by virtue of that decision, Amazon Store will be required to make an advertisement repository publicly available, in accordance with Article 39 of that regulation, without prejudice to the requirement for the applicant to compile the advertisement repository.
2. The application for interim measures is dismissed as to the remainder.
3. The costs are reserved.
Luxembourg, 27 September 2023.
V. Di Bucci | | M. van der Woude |