Language of document : ECLI:EU:C:2018:62

ORDER OF THE VICE-PRESIDENT OF THE COURT

2 February 2018 (*)

(Interim relief — Articles 278 and 279 TFEU — Appeal — Application for interim measures — Article 160(7) of the Rules of Procedure of the Court)

In Case C‑65/18 P(R)-R,

APPLICATION for suspension of operation and other interim measures under Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court, lodged on 31 January 2018,

Nexans France SAS, established in Courbevoie (France),

Nexans SA, established in Courbevoie (France),

represented by M. Powell and A. Rogers, Solicitors, and by G. Forwood, avocate,

appellants,

the other party to the proceedings being:

European Commission

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Wathelet,

makes the following

Order

1        By appeal lodged at the Court Registry on 31 January 2018, Nexans France SAS and Nexans SA requested the Court to set aside the order of the President of the General Court of the European Union 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 the President of the General Court dismissed their application seeking, first, the suspension of operation of Commission Decision C(2017) 3051 final of 2 May 2017 relating to a request for confidential treatment 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 L 275/29) (Case COMP/AT.39610 — Power Cables) (‘the decision at issue’), in so far as that request was refused in respect of the material seized from the appellants and another economic operator, that material being indicated in paragraphs 7 and 8 of the decision at issue (‘the contested material’), and, secondly, an order requiring the European Commission to refrain from publishing a version of Commission Decision C(2014) 2139 final of 2 April 2014 (Case COMP/AT.39610 — Power Cables; ‘the Power Cables Decision’), which contains the contested material.

2        By a separate document lodged at the Court Registry on the same day, the appellants submitted the present application for interim measures, by which they claim, in essence, that the Vice-President of the Court should, pursuant to Article 278 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice:

–        suspend the operation of the order under appeal;

–        suspend the operation of the decision at issue;

–        order the Commission to refrain from publishing a version of the Power Cables Decision containing the contested material; and

–        order the Commission to pay the costs of the present proceedings.

3        Under Article 160(7) of the Rules of Procedure, the judge hearing an application for interim measures may grant the application for interim measures even before the observations of the opposite party have been submitted, and that decision may be varied or cancelled even without any application being made by any party.

4        According to the case-law, in particular where it is desirable in the interests of the proper administration of justice that the interlocutory proceedings are not deprived of their substance and their effect, Article 160(7) of the Rules of Procedure permits the judge hearing an application for interim measures to adopt such measures, as a precautionary measure, until either an order has been made terminating these interlocutory proceedings or until the main proceedings are terminated, if this should take place first (orders of the Vice-President of the Court of 11 March 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R)-R, not published, EU:C:2016:164, paragraph 4, and of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)-R, not published, EU:C:2017:735, paragraph 4).

5        When assessing the need for such an order, the judge hearing the application for interim relief must examine the circumstances of the specific case at hand (orders of the Vice-President of the Court of 11 March 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R)-R, not published, EU:C:2016:164, paragraph 5, and of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)-R, not published, EU:C:2017:735, paragraph 5).

6        In the present case, the decision at issue, the operation of which was not suspended by the order under appeal, essentially authorises the European Commission to publish a non-confidential version of the Power Cables Decision containing the contested material in respect of which the appellants had requested confidential treatment.

7        Despite the fact that the appellants’ application refers only to Article 278 TFEU, it is necessary, at least for the purposes of the present order, to interpret that application, in the light of its content and its context, as being based also on Article 279 TFEU.

8        By that application, the appellants seek to prevent the public disclosure of the contested material before the General Court has ruled on the legality of the decision at issue. To that end, they argue that preserving the confidentiality of the contested material ensures the effectiveness of the main action, failing which they would suffer serious and irreparable harm.

9        In addition, they submit that the risk of such harm is particularly imminent, since it is clear from Article 3 of the decision at issue that the contested material could be published as from 3 February 2018, namely, upon the expiry of the period for bringing an appeal against the order under appeal.

10      In those circumstances, the Vice-President of the Court considers, even before the observations of the other party have been submitted, that it is in the interests of the proper administration of justice to order

–        that the operation of the decision at issue be suspended in so far as that decision rejected an application for confidential treatment of the contested material, and

–        that the Commission be ordered to refrain from publishing a non-confidential version of the Power Cables Decision containing the contested material,

until an order has been made closing the present proceedings for interim measures or determining the appeal in Case C‑65/18 P (R), whichever is the earlier. In the light of the foregoing, there is no need to suspend the operation of the order under appeal.

On those grounds, the Vice-President of the Court hereby orders:

1.      The operation of Commission Decision C(2017) 3051 final of 2 May 2017 on a request for confidential treatment submitted by Nexans France SAS and Nexans SA 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 (Case COMP/AT.39610 — Power Cables), in so far as that request was rejected as regards the material indicated in paragraphs 7 and 8 of Decision C(2017) 3051 final, and

–        The European Commission shall refrain from publishing a non-confidential version of Commission Decision C(2014) 2139 final of 2 April 2014 (Case COMP/AT.39610 — Power Cables) containing the material indicated in paragraphs 7 and 8 of Decision C(2017) 3051 final,

until an order has been made closing the present proceedings for interim measures or determining the appeal in Case C 65/18 P (R), whichever is the earlier.

2.      Costs are reserved.

Luxembourg, 2 February 2018.


A. Calot Escobar

 

A. Tizzano

Registrar

 

Vice-President


*      Language of the case: English.