ORDER OF THE VICE-PRESIDENT OF THE COURT
12 June 2018 (*)
[Text rectified by order of 27 June 2018]
(Appeal — Application for interim measures — Competition — European market for power cables — Decision of the European Commission finding an infringement of Article 101 TFEU — Publication — Partial rejection of the request for confidential treatment of certain information appearing in the decision — Suspension of operation of a measure — Connection between the condition of a prima facie case and that of urgency)
In Case C–65/18 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 31 January 2018,
Nexans France SAS, established in Courbevoie (France),
Nexans SA, established in Courbevoie,
Represented by M. Powell and A. Rogers, Solicitors, and G. Forwood, lawyer,
appellants,
the other party to the proceedings being:
European Commission, represented by I. Zaloguin, G. Meessen and H. van Vliet, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Wathelet,
makes the following
Order
1 By their appeal, Nexans France SAS and Nexans SA seek the annulment of the Order of the President of the General Court of 23 November 2017, Nexans France and Nexans v Commission (T‑423/17 R, not published, ‘the order under appeal’, EU:T:2017:835), by which it dismissed their application seeking, first, the suspension of operation of Commission Decision C(2017) 3051 Final of 2 May 2017 concerning a request for confidential treatment (Case COMP/AT.39610 — Power cables, ‘the decision at issue’), in so far as that request was rejected as regards the material referred to in paragraphs 7 and 8 of the decision at issue which was acquired from a seizure from the appellants and another economic operator (‘the information at issue’) and, second, to order the European Commission to refrain from publishing a version of its decision C(2014) 2139 final, of 2 April 2014 (Case COMP/AT.39610 — Power cables ‘the power cables decision’), containing the information at issue.
Background to the dispute and the procedure before the General Court
2 The background to the dispute and the procedure before the General Court have been summarised in paragraphs 1 to 16 of the order under appeal as follows:
‘1 On 28 January 2009, the European Commission carried out an inspection at the premises of one of the applicants, Nexans France, in Paris (France).
2 According to the applicants, Nexans and Nexans France, the Commission inspectors decided to copy ‘en masse’ a large number of email files from the computers of two employees of Nexans France, as well as the entire hard drive of one of those employees, and to remove these under seal to their premises in Brussels (Belgium) for further examination at a later date.
3 According to the applicants, between 3 and 11 March 2009, the Commission conducted its inspection of the copied material at its premises in Brussels in the presence of the applicants’ lawyers, but in the absence of a representative of the relevant national competition authority. It was only at this stage that the Commission inspectors systematically examined the contents of the disks, selecting material that was deemed relevant and printing that material off. Copies of the printed material were allegedly provided to the applicants’ lawyers and the content of the disks subsequently erased.
4 In the action brought before the General Court on 7 April 2009, the applicants contested, inter alia, that procedure. In the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), the Court, inter alia, rejected as inadmissible the applications for annulment of the seizure of the documents. [...]
5 In the appeal against the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), lodged at the Registry of the Court of Justice on 24 January 2013, the applicants did not contest the rejection, on grounds of inadmissibility, of the plea raised at first instance alleging that the seizure was unlawful. In any event, the Court of Justice dismissed the applicants’ appeal by judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030).
6 On 2 April 2014, the Commission issued [the power cables decision].
7 By letter of 8 May 2014, the Commission’s Directorate-General (DG) for Competition informed the applicants of, inter alia, its intention to publish, in accordance with Article 30 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), a non-confidential version of the power cables decision on its website. DG Competition also asked the applicants to identify any information that was confidential or constituted business secrets and to give reasons for their assessment in that regard.
8 By application lodged at the Court Registry on 17 June 2014, the applicants brought an action, registered as Case T‑449/14, seeking annulment of the power cables decision. By their first plea in that action, the applicants argued, inter alia, that the Commission had acted beyond its powers in removing the material unlawfully and by block copying, without prior examination, a large volume of electronic data in order to review it at a later date at its premises in Brussels.
9 By letter of 3 May 2016, following various exchanges concerning the requests for confidentiality, DG Competition informed the applicants of its intention to publish the entirety of the power cables decision, with the exception of certain material that it considered should remain confidential.
10 By letter of 18 May 2016, the applicants sent a request for confidential treatment in respect of certain material to the hearing officer pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29).
11 In that request, the applicants argued, inter alia, that information contained in the power cables decision and acquired during the seizure at the premises of Nexans France and another economic operator had to be regarded as confidential.
12 On 2 May 2017, the hearing officer, on behalf of the Commission, adopted [the decision at issue].
13 In the [decision at issue], the Commission granted the request for confidentiality in respect of certain information, as listed in Article 1 of that decision, and refused the applicants’ request in respect of [the information at issue].
14 By application lodged at the Court Registry on 11 July 2017, the applicants asked the Court to annul the [decision at issue] in so far as their request for confidential treatment of [the information at issue] had been refused.
15 By a separate document, lodged at the Court Registry on the same date, the applicants brought an application for interim measures, pursuant to Articles 278 TFEU and 279 TFEU, in which they claim, essentially, that the President of the Court should:
– suspend the operation of [the decision at issue] in so far as the request for confidential treatment of [the information at issue] is refused;
– order the Commission to refrain from publishing a version of the power cables decision containing the information at issue for as long as the ‘Court of Justice of the European Union’ has not ruled on the first plea in Case T‑449/14;
– order the Commission to pay the costs.
16 In response to the applicants’ application, the President of the General Court adopted on 12 July 2017, without hearing from the Commission beforehand, an order on the basis of Article 157(2) of the Rules of Procedure of the General Court, pursuant to which he ordered the Commission to suspend operation of [the decision at issue] until the order terminating the present proceedings for interim relief is made and to refrain from publishing a version of the power cables decision containing [the information at issue] for as long as the applicants’ first plea in Case T‑449/14 is pending before the General Court.’
The order under appeal
3 After recalling, in paragraphs 18 to 22 of the order under appeal, the case-law of the Court and the General Court concerning the conditions for the grant of interim measures, the President of the General Court considered, in paragraph 23 of that order, that it was appropriate to examine first whether the condition of urgency was satisfied.
4 In that regard, the President of the General Court recalled, in paragraphs 24 to 31 of that order, the principles developed on that matter in the case-law of the Court and the General Court. In the light of those principles, he held in paragraphs 32 to 48 of the order under appeal as follows:
‘32 In the present case, it should be noted, as a preliminary point, that the applicants, relying on paragraph 38 of the order [of the Vice-President of the Court] of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), argue that, as interim protection is sought for information alleged to be confidential, the assessment of whether publication would result in serious and irreparable harm must start from the premiss that the information alleged to be confidential is in fact confidential.
33 However, the circumstances of the case that gave rise to the order of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), and those of the case that gave rise to the order of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P–R, EU:C:2016:142), are very different from those of the present case.
34 As follows, in particular, from paragraphs 18 and 38 of the order of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), Pilkington Group Ltd, in its action for annulment, had disputed the Commission’s assessment that the information which it intended to disclose under Article 30(1) of Regulation No 1/2003 did not constitute business secrets within the meaning of, inter alia, Article 339 TFEU and Articles 28(1) and 30(2) of that regulation. Therefore, the considerations which the court hearing the application for interim relief took into account in order to conclude that the condition of urgency was established in that case were based on the premiss, expressly referred to in paragraph 47 of that order, that the information in question in that case was covered by the obligation of professional secrecy.
35 Likewise, it is clear from paragraph 84 of the order [of the Vice-President of the Court] of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P–R, EU:C:2016:142) that Evonik Degussa GmbH had challenged the finding that the information at issue did not constitute business secrets and was also not covered by the obligation of professional secrecy.
36 Moreover, the appellants in the cases that gave rise to the orders of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558) and of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P–R, EU:C:2016:142) claimed, as emerges from paragraphs 47 and 83 respectively of those orders, that the publication of the information at issue would be liable to affect them adversely by reason of the very nature of that information.
37 By contrast, with regard to the present case, in the first place, it must be noted that the applicants do not claim that [the information at issue] constitutes business secrets.
38 In the second place, except for the assertion that [the information at issue] is confidential, the application for interim relief contains little specific information as to the nature and content of the material that the applicants claim is confidential.
39 In the third place, the applicants are not seeking to prove that [the information at issue] has an intrinsic commercial sensitivity that is capable of being exploited by their competitors in the context of normal competition.
40 In the fourth place, in so far as the applicants submit that [the information at issue] ‘involves evidence of the infringement ... revealing in detail the infringement, such as the names of customers and projects concerned by the conduct, and figures relating to prices charged and objectives pursued by participants, ... as well as the causal link between such damage and the infringement’, they point to recitals 284, 372(g) and 436 of the power cables decision as ‘clear examples of the type of ... information’ to which they are referring.
41 However, recitals 284, 372(g) and 436 of the power cables decision do not mention the ‘names of customers and projects concerned’ and do not contain ‘figures relating to prices charged’.
42 In the fifth place, it is evident from case-law that information that was secret or confidential, but that is at least five years old, must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties. Those considerations, which give rise to a rebuttable presumption, are valid both in the context of requests for confidential treatment in respect of parties intervening in actions before the EU Courts and in the context of requests for confidentiality with a view to the publication by the Commission of a decision finding an infringement of competition law (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).
43 In the present case, [the information at issue] was gathered during the inspection in 2009. However, the applicants are not seeking to demonstrate the reasons why [the information at issue], by its very nature, has not lost its secret or confidential nature, despite the passing of time.
44 In the sixth place, the applicants are not seeking to prove the confidential nature of [the information at issue] by referring to the very nature of the information, but rather by arguing that their right to an effective remedy and the principle of the presumption of innocence require that that information should not be disclosed before it has been established that that information was obtained lawfully in the context of Case T‑449/14.
45 In the seventh place, it must be noted that, according to case-law, ascertaining whether information comes within the ambit of professional secrecy generally comprises three stages, namely, first, that that information must be known only to a limited number of persons; second, that its disclosure must be likely to cause serious harm to the person who provided it or to third parties; and, third, and last, that the interests liable to be harmed by disclosure must, objectively, be worthy of protection (see, to that effect, judgment of 28 January 2015, Evonik Degussa v Commission, T‑341/12, EU:T:2015:51, paragraph 94 and the case-law cited).
46 Thus, an examination of the condition relating to urgency overlaps, to an extent, with an examination of whether [the information at issue] must be regarded as being covered by professional secrecy, which involves, in the context of interim proceedings, an examination of the condition relating to a prima facie case.
47 In those conditions, the mere allegation — which, moreover, remains entirely unsubstantiated — that the information the disclosure of which is at issue is covered by professional secrecy cannot, due to the risk of distorting the analysis of the condition relating to urgency, be sufficient to establish the premiss that that information is covered by professional secrecy.
48 Consequently, contrary to the cases that gave rise to the orders of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558) and of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P–R, EU:C:2016:142), the analysis of urgency in the present case cannot start from the premiss that [the information at issue] is covered by professional secrecy.’
5 Therefore, in paragraphs 48 to 81 of the order under appeal, the President of the General Court examined whether the appellants had established the urgency of their application thereby justifying the grant of interim measures. For that purpose, he analysed the three causes of harm that the appellants alleged they would suffer if the operation of the decision at issue were not suspended, namely the harm resulting from damage to their reputation and risk of being exposed to actions for damages, examined in paragraphs 54 to 67 of that order, and of the risk of compromising their right to an effective remedy in that the possible annulment of the power cables decision would be deprived of its ‘full effect’, examined in paragraphs 68 to 81 of that order.
6 In the course of examining the third cause of harm, the President of the General Court, in paragraphs 69 to 78 of the order under appeal, analysed the appellants’ argument that, in order to respect their right to an effective remedy, it was necessary to order the suspension of the operation of the decision at issue until the lawfulness of the seizure of the information at issue had been verified. Next, and for the sake of completeness, he also considered, in paragraphs 79 to 81 of that order, as follows:
‘79 In any event, it must be noted that, according to the settled case-law of the Court of Justice, the argument that harm is, by definition, serious and irreparable because it comes within the scope of fundamental freedoms cannot be accepted since it is not sufficient to allege infringement of fundamental rights in the abstract for the purpose of establishing that the harm which could result would necessarily be serious and irreparable. That case-law is not called into question by the enhanced protection of fundamental rights brought about by the Treaty of Lisbon, since those rights, in particular the right to an effective remedy relied on in the present case, already enjoyed protection under EU law before that treaty entered into force (see, to that effect, order [of the Vice-President of the Court] of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 40).
80 It is true that breach of certain fundamental rights, such as the prohibition of torture and inhuman or degrading treatment or punishment enshrined in Article 4 of the Charter of Fundamental Rights of the European Union, may, on account of the very nature of the right violated, in itself give rise to serious and irreparable harm. However, the fact remains that [...] it remains for the party seeking interim measures to set out and establish the likelihood of such harm occurring in his particular case (order [of the vice-President of the Court] of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 41).
81 In the present case, however, the applicants have not established that the harm that they would specifically suffer as a result of the alleged infringement of their right to an effective remedy would be separate from the harm of being exposed to damage to their reputation and to actions for damages, the examination of which led to the conclusion set out in paragraphs 62 and 67 above that the applicants had failed to establish that the harm which they allege is serious in nature.’
7 On the basis of that examination, the President of the General Court rejected the application for interim measures and set aside the order of 12 July 2017.
Procedure before the Court and forms of order sought
8 By their appeal, the appellants request, in essence, that the Court of Justice should:
– set aside the order under appeal;
– Suspend the operation of the order under appeal as regards the information at issue;
– order the Commission to refrain from publishing a version of the power cables decision containing the information at issue for as long as the General Court has not ruled on the first plea in Case T‑449/14;
– in the alternative, refer the case back to the General Court; and
– order the Commission to pay the costs of the appeal and the costs of the proceedings before the General Court.
9 By a separate document lodged at the Registry of the Court on 31 January 2018, the appellants submitted an application for interim measures.
10 Pursuant to Article 160(7) of the Rules of Procedure of the Court, by Order of the Vice-President of the Court of 2 February 2018, Nexans France and Nexans v Commission (C‑65/18 P(R)-R, not published, EU:C:2018:62), adopted without having heard the other parties to the proceedings, the operation of the decision under appeal was suspended and the Commission ordered to refrain from publishing a non-confidential version of the power cables decision containing material indicated in paragraphs 7 and 8 of the decision at issue, until the adoption of an order bringing the interim proceedings to an end, or ruling on the present appeal, whichever is the earlier.
11 In its response, lodged with the Court Registry on 6 March 2018, the Commission contends that the Court should:
– dismiss the appeal;
– in the alternative, refer the case back to the General Court;
– in the further alternative, reject the application for interim measures; and
– order the appellants to pay the costs incurred in the present case before the General Court and the Court.
The appeal
12 The appeal rests on two grounds which raise both errors of law alleged to have been committed by the General Court in that it, first, refused to start from the premiss that the information at issue was covered by professional secrecy and, second, failed to assess accurately the appellants’ right to an effective judicial remedy.
The first ground of appeal
13 In support of their first ground of appeal, the appellants submit that the General Court, in paragraphs 33 to 37 of the order under appeal, wrongly held that the present case was different from the cases that gave rise to the orders of the Vice-President of the Court of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558) and of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P-R, EU:C:2016:142), in which the judge hearing applications for interim measures had based his assessment on the premiss that the material in question in those cases was confidential. Indeed, in the same way as the appellants in those cases, the appellants in the present case, in their applications for annulment, challenged the Commission’s assessment that the information at issue was not covered by professional secrecy and, even if, for those purposes, it did not allege that that information constituted business secrets, they nevertheless gave detailed reasons why that material was confidential and should therefore be covered by professional secrecy by application of the criteria established by the case-law of the Court and the General Court. In addition, contrary to the findings of the President of the General Court in paragraphs 46 and 47 of the order under appeal, the fact that that question overlaps the assessment of the condition relating to a prima facie case should not have prevented it from starting from that premiss.
14 In order to rule on the present ground, it must be recalled that Article 156(4) of the Rules of Procedure of the General Court provides that applications for interim measures must state the subject-matter of the litigation, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for. Thus, according to the settled case-law of the Court, the judge hearing an application for interim relief may order the suspension of operation of an act, or 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 interests of the party making the application, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, which means that an application for interim measures must be dismissed if either of them is absent. The judge hearing an application for interim relief is also to undertake, where necessary, a weighing of the competing interests (see, inter alia, the orders of the Vice-President of the Court of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 35, and of 4 October 2017, Wall Street Systems UK v BCE, C‑576/17 P(R)-R, not published, EU:C:2017:735, paragraphs 22 and 23).
15 In that regard, the General Court was correct to hold, in paragraph 46 of the order under appeal, in essence, that where it was necessary to assess whether it was urgent to order interim measures in order to prevent the disclosure of material alleged to be confidential, that assessment overlaps, to an extent, the examination of whether there is a prima facie case that the information is confidential, as claimed by the party seeking those measures.
16 As the appellants themselves submit, in paragraph 38 of the order of the Vice-President of the Court of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), in the context in which the harm that Pilkington claimed would have resulted from the publication of information claimed to be confidential, it was held that, for the purpose of assessing the existence of serious and irreparable harm, the President of the General Court was necessarily required to start from the premiss that the information alleged to be confidential was in fact confidential, as Pilkington claimed.
17 However, also in paragraph 38, the Vice-President of the Court also specified that taking into consideration such a premiss was without prejudice to the examination of whether there was a prima facie case which is connected to — but separate from — the assessment of the existence of serious and irreparable harm.
18 In paragraph 45 of the order of the President of the General Court of 11 March 2013, Pilkington Group v Commission (T‑462/12 R, EU:T:2013:119), which was the subject of the appeal that gave rise to the order of the Vice-President of the Court of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), the President of the General Court himself explicitly stated that it was subject to the examination of the condition that there should be a prima facie case that the existence of serious and irreparable harm was established in that case. It was therefore only after having examined, in paragraphs 67 and 72 of that first order, whether the condition as to a prima facie case was satisfied — an examination that moreover was not called into question in the appeal — that the President of the General Court had in fact been able to start from the premiss that the information at issue was confidential in order to grant the interim measures sought.
19 The same is true in the case that gave rise to the order of the Vice-President of the Court of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P-R, EU:C:2016:142), in which the Vice-President of the Court was seised of an application for interim measures in connection with an appeal against a judgment of the General Court. In that case, before deciding in paragraph 85 of that order that in order to assess the urgency in the case it was necessary to start from the premiss that the information at issue in that case was covered by professional secrecy, the judge hearing the application for interim measures had found, in paragraph 84 of that order, not only that the appellant in its appeal in that case had challenged the General Court’s assessment that the information did not constitute business secrets and was also not covered by professional secrecy, but also that a prima facie examination of the arguments advanced in support of the relevant grounds of appeal did not permit the conclusion that the information was obviously not confidential.
20 By contrast, in his order of 14 January 2016, AGC Glass Europe and Others v Commission (C‑517/15 P-R, EU:C:2016:21), the Vice-President of the Court, also seised of an application for interim measures in connection with an appeal against the judgment of the General Court of 15 July 2015, AGC Glass Europe and Others v Commission (T‑465/12, EU:T:2015:505), was not able to start from the same premiss, as is clear from paragraph 33 of that order, since, in the case that gave rise to that order, the General Court had in paragraphs 22 to 54 of that judgment examined and rejected the sixth plea invoked by the appellants in support of their action for annulment, in the context of which they contested the hearing officer’s assessment that the information at issue in that case did not constitute business secrets and that the appeal lodged by the appellants was not directed against that part of the judgment, such that he had to regard that information as having been definitively held not to constitute business secrets.
21 Consequently, it is only when, first, the applicant for interim measures alleges that the information whose publication he wishes provisionally to prevent constitutes business secrets or is covered by professional secrecy and, second, that allegation satisfies the condition that there is a prima facie case, that the judge hearing an application for interim measures is in principle required, when examining the condition of urgency, to start from the premiss that the information constitutes business secrets or is covered by professional secrecy.
22 Therefore, contrary to what the appellants appear to submit, it is insufficient, for the purposes of being granted interim measures, to have claimed that the information which is to be disclosed is confidential where such a claim does not satisfy the condition relating to a prima facie case. In the present case, it is clear from paragraphs 37 to 46 of the order under appeal that the appellants’ claim that the information at issue is confidential did not satisfy the condition of relating to a prima facie case.
23 In that regard, it should be noted that, as the President of the General Court recalled in paragraph 21 of the order under appeal, when examining all the cumulative conditions to which an order of the suspension of operation and other interim measures is subject, the judge hearing applications 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 (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 In the present case, the President of the General Court stated in paragraph 23 of the order under appeal that he intended to examine first whether the condition relating to urgency was satisfied. However, in the course of his examination he in fact assessed, in paragraphs 37 to 46 of that order, the merits of appellants’ claims that the information at issue was covered by professional secrecy, without expressly drawing conclusions as to whether the claims satisfied the condition relation to a prima facie case.
25 Notwithstanding the lack of coherence in the structure of the analysis, it nevertheless emerges with a sufficient degree of clarity from the order under appeal that the President of the General Court considered that, in the instant case, the appellants’ claims that that information was confidential did not satisfy the condition relating to a prima facie case.
26 In that regard, first, the President of the General Court recalled in particular, in paragraph 42 of the order under appeal, the case-law of the Court according to which information that has been secret or confidential but is at least five years old, must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties. Those considerations, which give rise to a rebuttable presumption, are valid both in the context of requests for confidential treatment in respect of parties intervening in actions before the EU Courts and in the context of requests for confidentiality with regard to the publication by the Commission of a decision finding an infringement of competition law (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).
27 Second, the President of the General Court held, in paragraph 43 of the order under appeal, that in the present case the information at issue had been gathered during the inspection in 2009 and yet the appellants had not sought to demonstrate the reasons why it, by its very nature, had not lost its secret or confidential nature despite the passing of time.
28 [As rectified by order of 27 June 2018] Even on that ground alone, the President of the General Court was fully entitled to find that the condition relating to a prima facie case was not satisfied. Consequently, the other grounds of the order under appeal, contained in paragraphs 37 to 41 and 44 to 46 thereof, which seek to exclude that the information was confidential in any way, are included only for the sake of completeness.
29 In the context of their appeal, the appellants criticised only the latter paragraphs of the order under appeal without challenging the finding contained in paragraph 43 thereof, with the result that the arguments raised by the appellants against those grounds must be rejected as ineffective.
30 In those circumstances, the President of the General Court was fully entitled to find that the present case differed from the cases that gave rise to the orders of the Vice-President of the Court of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558) and of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P-R, EU:C:2016:142).
31 For those reasons, the first ground of appeal is unfounded.
The second ground of appeal
32 By their second ground of appeal, the appellants challenge the assessment by the President of the General Court, set out in paragraphs 68 to 81 of the order under appeal, at the end of which he dismissed their argument that the decision at issue infringed their right to an effective remedy.
33 To that end, first, the President of the General Court, in paragraphs 69 to 78 of that order, examined and rejected the appellants’ argument that, in order to respect their right to an effective remedy, it was necessary to order the suspension of the operation of the decision at issue until the lawfulness of the seizure of the information at issue had been verified. Second, and for the sake of completeness, the President of the General Court, in paragraphs 79 to 81 of that order, considered that in any event the appellants had not established that the harm that would specifically result for them from the alleged infringement of their right to an effective remedy was separate from the harm of being exposed to damage to their reputation and to actions for damages, whilst he had rejected the existence of that second prejudice in paragraphs 62 and 67 of the same order.
34 Having regard to the structure of the reasoning of the President of the General Court, it is necessary therefore to check first of all whether, in their appeal, the appellants have succeeded in establishing that he committed an error of law in the paragraphs included for the sake of completeness.
35 That is not the case.
36 To the extent, first of all, that the appellants submit that the alleged infringement of their right to an effective remedy is, in itself, capable of causing them serious and irreparable harm, it suffices to note, as the Commission noted and the President of the General Court recalled in paragraph 79 of the order under appeal — a paragraph which has not been challenged by the appellants in their appeal — that the argument that the harm is, by definition, serious and irreparable, since it falls within the scope of fundamental freedoms cannot be accepted since it is insufficient to allege infringement of fundamental rights in the abstract for the purpose of establishing that the harm which could result would necessarily be serious and irreparable (order of the Vice-President of the Court of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 40 and the case-law cited).
37 As regards, next, the appellants’ argument that the publication of the information at issue would cause serious and irreparable harm to the appellants resulting from the actions for damages that it would lead to, it must be recalled that that harm had been examined by the President of the General Court who, in paragraphs 60 and 61 of the order under appeal, had found that even on the assumption that the decision at issue was the determining cause of the harm alleged and that that financial harm was irreparable, the appellants had not produced documentary material that made it possible to establish whether the harm they claim exists is serious in nature.
38 The same is true as regards the alleged damage flowing from harm to the appellants’ reputation. In paragraph 67 of the order, the President of the General Court had also concluded that the appellants had not provided any evidence making it possible to establish whether and to what extent the publication of the power cables decision pursuant to the decision at issue could worsen that damage to their reputation.
39 In those circumstances, the President of the General Court did not err in law when, in paragraph 81 of the order under appeal, he referred to the conclusions that he had reached in paragraphs 62 and 67 of that order in order to reject the appellants’ argument that the infringement of their right to an effective remedy would cause them serious harm as a result of the harm to their reputation and the risk of being exposed to actions for damages.
40 As regards, lastly, the appellants’ argument that paragraph 81 of the order under appeal is based, wrongly, on the finding that the ‘determining cause’ of each of the causes of harm was not the publication of the information at issue, but the underlying infringement established in the power cables decision — given that if that decision were annulled, the determining cause of the harm would not be the decision but the publication of the information at issue in itself — it suffices to observe that the appellants have not produced any evidence making it possible to understand the reasons why, on the assumption that their argument is well founded, that would call into question the decision of the President of the General Court that the appellants’ had not provided sufficient evidence to prove the serious nature of the alleged harm resulting from damage to their reputation and the risk of being exposed to actions for damages.
41 It follows that, since the President of the General Court did not commit any error of law in paragraph 81 of the order under appeal, the arguments in support of this ground directed against paragraphs 68 to 78 of that order must be regarded, taking into account the reasons contained in paragraphs 33 and 34 of this order, as being ineffective.
42 Since the second ground of appeal is also not well founded, the appeal must be dismissed in its entirety.
Costs
43 Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) 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.
44 Since the Commission has applied for costs against the appellants and the appellants have been unsuccessful, they should be ordered to pay the costs incurred in the present appeal proceedings and the interim proceedings in case C‑65/18 P(R)-R.
On those grounds, the Vice-President of the Court hereby orders:
1. The appeal is dismissed.
2. Nexans France SAS and Nexans SA shall pay the costs of the present appeal proceedings and of the interim proceedings in case C‑65/18 P(R)-R.
Luxembourg, 12 June 2018.
A. Calot Escobar | | A. Tizzano |