Provisional text
ORDER OF THE VICE-PRESIDENT OF THE COURT
11 April 2024 (*)
(Appeal – Application for interim measures – Competition – Concentrations – Media market – Request for information – Personal data – Urgency – Commission of a criminal offence)
In Case C‑89/24 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 2 February 2024,
Lagardère SA, established in Paris (France), represented by G. Aubron, C. Bocket and D. Théophile, lawyers,
appellant,
the other party to the proceedings being:
European Commission, represented by P. Caro de Sousa, B. Cullen and D. Viros, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its appeal, Lagardère SA seeks to have set aside the order of the President of the General Court of the European Union of 19 January 2024, Lagardère v Commission (T‑1119/23 R, EU:T:2024:16; ‘the order under appeal’), by which the President dismissed its application seeking, first, suspension of the operation of Commission Decision C(2023) 6429 final of 19 September 2023 relating to a procedure pursuant to Article 11(3) of Council Regulation (EC) No 139/2004 (Case M.11184 – Vivendi/Lagardère), as amended by Commission Decision C(2023) 7464 final of 27 October 2023 (‘the contested decision’), and, second, as a precautionary measure, an order that it retain all the documents of persons concerned by the contested decision as may be relevant to the European Commission’s investigation.
Background to the dispute
2 The background to the dispute is set out in paragraphs 2 to 8 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.
3 On 24 October 2022, Vivendi SE notified the Commission of a concentration which consisted in acquisition of sole control of Lagardère. On 9 June 2023, that concentration was authorised by the Commission subject to compliance with commitments made by Vivendi.
4 On 25 July 2023, the Commission informed Vivendi of the opening of a formal investigation into the potential early implementation of the concentration. As part of that procedure, by Decision C(2023) 6429 final of 19 September 2023, the Commission sent Lagardère a request for information with a deadline of 27 October 2023. By Decision C(2023) 7464 final of 27 October 2023, the Commission extended the deadline until 1 December 2023.
The procedure before the General Court and the order under appeal
5 By application lodged at the Registry of the General Court on 27 November 2023, Lagardère brought an action for annulment of the contested decision.
6 By a separate document, lodged at the Registry of the General Court on 28 November 2023, Lagardère brought an application for interim measures seeking, first, suspension of the operation of that decision and, second, as a precautionary measure, an order that it retain all the documents of persons concerned by that decision as may be relevant to the Commission’s investigation.
7 By order of 29 November 2023, Lagardère v Commission (T‑1119/23 R), adopted on the basis of Article 157(2) of the Rules of Procedure of the General Court, the President of the General Court ordered the suspension of the operation of the contested decision until such time as the order terminating the proceedings in Case T‑1119/23 R is made, without prejudice to Lagardère’s obligation to continue to collect information and to retain in its possession, on electronic media, all the documents concerned by that decision as may be relevant to the Commission’s investigation.
8 By the order under appeal, the President of the General Court dismissed the application for interim measures referred to in paragraph 6 of the present order on the ground that Lagardère had not established that the condition relating to urgency was satisfied and cancelled its order of 29 November 2023 (T‑1119/23 R).
9 First, in paragraph 29 of the order under appeal, the President of the General Court ruled that, at the stage of the proceedings in which that order was to be made, the risk that Lagardère would be obliged to pay periodic penalty payments or fines was hypothetical.
10 Second, in paragraph 39 of that order, he held that the argument concerning alleged damage resulting from the risk of a breach of the privacy of Lagardère’s employees and company officers should also be rejected. In this regard, he held in particular, in paragraphs 40 to 42 of that order, that Lagardère had not demonstrated to the requisite legal standard that it was at risk of criminal sanctions.
Forms of order sought by the parties to the appeal and the procedure before the Court of Justice
11 Lagardère claims that the Court should:
– set aside the order under appeal;
– rule that the application for interim measures brought by Lagardère in Case T‑1119/23 R is urgent;
– refer that case back to the General Court as to the remainder or, if the Court of Justice considers that it is sufficiently well informed, give final judgment on that application for interim measures;
– suspend the obligation imposed on Lagardère by the contested decision, as amended by Commission Decision C(2024) 572 final of 24 January 2024, to collect and communicate to the Commission documents contained in the private or personal email boxes and on the private or personal mobile devices of certain employees and company officers of Lagardère until the President of the General Court gives a fresh ruling on the application for interim measures in Case T‑1119/23 R or, failing that, until the General Court rules on the action for annulment of the contested decision, and
– order the Commission to pay the costs of both sets of proceedings.
12 The Commission contends that the Court should:
– dismiss the appeal and
– order Lagardère to pay the costs.
13 By his order of 6 February 2024, Lagardère v Commission (C‑89/24 P(R)‑R, EU:C:2024:120), adopted on the basis of Article 160(7) of the Rules of Procedure of the Court of Justice, the Vice-President of the Court of Justice ordered the suspension of the obligation imposed on Lagardère by the contested decision to collect and communicate to the Commission documents contained in the private or personal email boxes and on the private or personal mobile devices of certain employees and company officers of Lagardère until the adoption of the order terminating the interim proceedings in Case C‑89/24 P(R)‑R or the ruling on the present appeal, whichever is the earlier, without prejudice to the obligation for Lagardère to take all necessary steps to ensure that all those documents are retained.
The appeal
14 In support of its appeal, Lagardère relies on three grounds alleging, first, an infringement of the right to respect for private life and confidentiality of correspondence, second, a manifest error in the assessment of the alleged damage and, third, an infringement of the rights of the defence.
The first part of the first ground
Arguments
15 By the first part of its first ground, Lagardère asserts that the President of the General Court distorted its application for interim measures by ruling, in paragraph 40 of the order under appeal, that the application was significantly incomplete.
16 The statement made by the President of the General Court in that paragraph, according to which the application for interim measures did not include a reference to the provision establishing the criminal offence or clarification of the applicable penalty, is incorrect. The relevant provisions of French law were explained perfectly clearly in paragraphs 35 and 38 of that application. In addition, in the annex to the application, Lagardère produced legal advice provided by a lawyer specialising in the protection of private life in connection with new technologies, which referred to those provisions.
17 The President of the General Court was not therefore justified in stating in paragraph 41 of the order under appeal that the damage alleged by Lagardère was insufficiently substantiated.
18 The Commission contends, principally, that the first ground is ineffective in its entirety. That ground actually criticises the President of the General Court for failing to examine the condition relating to a prima facie case, even though he was permitted simply to find that the condition relating to urgency was not satisfied.
19 The Commission asserts, in the alternative, that the first part of the first ground is unfounded. It submits in that regard that the arguments made in the application for interim measures relating to urgency do not include clarification either of the provision establishing the criminal offence relied on by Lagardère or of the penalty to which it is purportedly liable.
Assessment
20 A preliminary point to note is that, since the first part of the first ground directly criticises the reasoning concerning the condition relating to urgency in paragraphs 40 and 41 of the order under appeal, that part cannot be considered to be based on a complaint alleging that the President of the General Court wrongly failed to rule on the condition relating to a prima facie case.
21 It follows that the Commission’s argument that the first ground is ineffective in its entirety must be dismissed and it is therefore necessary to assess the merits of the first part of that ground.
22 It should be observed in that regard that, in paragraph 40 of the order under appeal, the President of the General Court stated that the application for interim measures was ‘significantly incomplete’ as regards the risk of criminal sanctions to which Lagardère would be liable, as that application ‘referred to the possibility of such penalties, without making reference to the provision establishing the criminal offence and without giving clarification of the applicable penalty’. In paragraph 41 of that order, the President of the General Court concluded that the damage alleged by Lagardère was insufficiently substantiated.
23 However, as is asserted by Lagardère, it appears that several parts of its application for interim measures included clarification of the provisions of French law under which, in its view, it could be criminally liable if it complied with the contested decision and of the applicable penalties in that scenario.
24 Thus, first of all, Lagardère stated in paragraph 35 of its application for interim measures that the breach of confidentiality of correspondence is subject to criminal sanctions in French law under Article 226-1 of the French Code pénal (Criminal Code). In addition, it cited the wording of that provision and specified that the applicable penalty in the event of a breach of that provision was imprisonment for one year and a fine of EUR 45 000.
25 Second, in paragraph 38 of that application, Lagardère mentioned several other provisions of French criminal law which could, in its view, be applicable to it, namely Articles L. 223-6 and R. 226-1 to 4 of the French Code pénal, although it did not explicitly cite their wording.
26 Lastly, in paragraph 75 of that application, in order to demonstrate the existence of an infringement of the right to respect for private life, Lagardère referred to legal advice provided by a lawyer which was annexed to the application. That legal advice explains in particular the wording and scope of Article 226-1 and Article 226-15 of the French Code pénal.
27 Therefore, it must be held that by upholding, in paragraph 40 of the order under appeal, the Commission’s argument that the application for interim measures brought by Lagardère was ‘significantly incomplete’, in so far as it referred to a risk of criminal sanctions ‘without making reference to the provision establishing the criminal offence and without giving clarification of the applicable penalty’, the President of the General Court distorted that application.
28 This assessment cannot be called into question by the fact, asserted by the Commission, that the clarifications of the relevant rules of French law, noted in paragraphs 24 to 26 of the present order, did not appear in the part of the application for interim measures concerning the condition relating to urgency, but in the part concerning the condition relating to a prima facie case.
29 It is clear from the very words used by the President of the General Court in paragraph 40 of the order under appeal that he established the ‘incomplete’ character not of Lagardère’s argument concerning the condition relating to urgency, but of the ‘application for interim measures’ in its entirety.
30 In addition, with particular regard to the expeditious treatment characterising proceedings for interim measures and the requirements applying to the volume of procedural documents produced before the General Court, the applicant for interim measures cannot be expected to repeat systematically, in the part of its application concerning the condition relating to urgency, arguments relating to matters of fact or of law which have already been presented in another part of that application and which are relevant to the assessment of two or more of the conditions governing the adoption of interim measures.
31 Consequently, the first part of the first ground must be upheld.
32 That being said, the finding of the distortion of the application vitiating paragraph 40 of the order under appeal is not sufficient in itself to lead to the order being set aside. In paragraph 42 of that order, the President of the General Court presented, for the sake of completeness, another reason to justify the rejection of Lagardère’s arguments in connection with the potential application of French criminal law.
33 Because that reason is challenged by the first part of the second ground, that part of the ground should be examined.
The first part of the second ground
Arguments
34 By the first part of its second ground, Lagardère asserts that in its application for interim measures it clearly explained that the condition relating to urgency was satisfied on the ground that the contested decision requires it to conduct investigative measures which may be characterised as criminal in French law.
35 The urgency claimed by Lagardère thus arises, in the first place, because compliance with the contested decision would lead it to commit a criminal offence in respect of which it would be at risk of, in the second place, criminal sanctions. The commission of such an offence would in itself constitute damage to Lagardère. The President of the General Court therefore wrongly held that the damage claimed by Lagardère was hypothetical.
36 The Commission asserts, principally, that it cannot be accepted that the damage in connection with the application of French criminal law is sufficiently certain in the present case, since the President of the General Court ruled, in paragraphs 40 and 41 of the order under appeal, that the risk of Lagardère being liable to criminal sanctions was insufficiently substantiated.
37 The Commission maintains, in the alternative, that the President of the General Court was entitled to make the assessment set out in paragraph 42 of that order in so far as the purpose of criminal proceedings is to establish both the existence of a criminal offence and the penalty for such an offence, and the existence of a criminal offence was therefore hypothetical on the date when he ruled on the application for interim measures.
38 In the further alternative, the Commission submits that Lagardère does not demonstrate that it is legally impossible to comply with the contested decision, as an employer is not obliged to obtain the consent of its employees to collect personal data pursuant to a Commission decision.
Assessment
39 As a preliminary point, it must be held that, since it follows from an examination of the first part of the first ground that paragraphs 40 and 41 of the order under appeal are based on a distortion of the application for interim measures, the assessments made in those paragraphs cannot be properly relied upon to justify the dismissal of the first part of the second ground.
40 In paragraph 42 of the order under appeal, the President of the General Court held that the risk claimed by Lagardère was hypothetical. He noted that the imposition of criminal sanctions was necessarily based on a set of measures to be taken, in particular, by the competent national prosecuting authorities or by potential victims of acts liable to be characterised as criminal. He concluded that it was premature at least to claim at this stage of the proceedings that compliance with the contested decision would, in all likelihood, entail the risk of such a penalty for Lagardère.
41 In that connection, it must be stated, as is asserted by Lagardère, that the arguments presented in its application for interim measures were intended to show, inter alia, that, by compelling it to breach its statutory obligations, the contested decision exposed it and its representatives to serious damage ‘including criminal sanctions of fines and imprisonment’. Paragraph 148 of that application also stated that the damage claimed would be irreparable ‘as the infringement of the legislation [at issue] would be definitively and irremediably established’.
42 Accordingly, it must be stated, first, that the damage claimed by Lagardère arose not only from the possible imposition of criminal sanctions but also from the very fact that it would be compelled to commit criminal offences.
43 Paragraph 42 of the order under appeal relates only to the risk of a criminal penalty and does not therefore include a response to Lagardère’s arguments alleging damage resulting from the fact that it would be compelled to commit criminal offences.
44 Second, with regard to the risk of a criminal sanction, it is clear both from the application for interim measures brought by Lagardère and from the summary of its arguments in paragraph 21 of the order under appeal that, as that company asserts in support of its appeal, it sought to demonstrate the existence of that risk by arguing that in order to comply with the contested decision it would necessarily be led to commit criminal offences which could justify the imposition of such a sanction.
45 It follows that the connection between the application of the contested decision and the possible imposition of criminal sanctions relied upon by Lagardère did not arise from the likelihood of such sanctions being imposed on it on the basis of that decision, but from the alleged fact that, in order to respond to the Commission’s request for information contained in therein, Lagardère necessarily had to become criminally liable by breaking the applicable criminal law.
46 The commission of acts which could render Lagardère criminally liable depends solely on its conduct and not on the institution or subsequent outcome of criminal proceedings brought against it.
47 Therefore, because the President of the General Court did not reject the claim set out in paragraph 44 of the present order, he could not rule out the risk of Lagardère actually being compelled to commit criminal offences in order to comply with the contested decision by relying on the fact that the institution or outcome of criminal proceedings depended on subsequent procedural measures by the prosecuting authorities or potential victims.
48 Against that background, since the commission of such offences could justify, a posteriori, the institution of criminal proceedings against Lagardère and the imposition of criminal sanctions on it, and a possible suspension of the effects of the contested decision at a time when such proceedings were instituted could no longer prevent the imposition of such sanctions, there would necessarily no longer be any point in bringing an application for interim measures seeking such suspension at that time.
49 It follows that the President of the General Court erred in law by ruling, in paragraph 42 of the order under appeal, that Lagardère had relied prematurely on the risk of criminal sanctions if the contested decision was complied with.
50 The argument raised in the further alternative by the Commission cannot call into question this assessment. That argument is based, in essence, on the claim that the actions to be taken by Lagardère to comply with the contested decision would not be incompatible with the applicable law, which was not accepted by the President of the General Court in paragraph 42.
51 Consequently, the first part of the second ground must be upheld.
52 It follows from the errors vitiating paragraphs 40 to 42 of the order under appeal that the order does not include any grounds for rejecting Lagardère’s arguments concerning the risk of suffering damage in connection with the application of French criminal law.
53 As the application for interim measures was dismissed on the ground that Lagardère had not established that the condition relating to urgency was satisfied, it follows from these errors that the operative part of the order under appeal is unfounded.
54 Accordingly, the order under appeal must be set aside in its entirety, without there being any need to examine the other parts of the first and second grounds or the third ground.
The application for interim measures submitted to the General Court
55 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice sets aside a decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. That provision also applies to appeals brought under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union (order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 172 and the case-law cited).
56 To that end, 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 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. Thus, according to settled case-law of the Court, the court 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 and that it is urgent in so far as, in order to avoid serious and irreparable damage 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, so that applications for interim measures must be dismissed if any one of them is not satisfied. The court hearing an application for interim relief must also, where appropriate, weigh up the interests involved (order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 175 and the case-law cited).
57 In the context of its examination of those conditions, the court hearing the application for interim relief 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 EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the Vice-President of the Court of Justice of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 28 and the case-law cited).
58 In these circumstances, in light of the assessments already made by the President of the General Court and the written procedure between the parties, the Vice-President of the Court of Justice has sufficient information to give final judgment on the condition relating to urgency in the present case.
Arguments
59 In order to demonstrate that the condition relating to urgency is satisfied, Lagardère claims several separate types of damage.
60 As regards the arguments concerning the fact that the contested decision requires Lagardère to violate the fundamental rights of its employees and company officers, which should be examined first, Lagardère asserts that compliance with that decision would mean that it failed to meet its statutory obligations with regard to those persons.
61 First, Lagardère would be required to search for documents which it is not authorised to access, then to communicate them to the Commission, even if they relate to the private lives of the persons concerned. It would therefore be at risk of suffering serious damage as it would be compelled to infringe its statutory obligations, thus making itself, like its representatives, liable in particular to criminal sanctions of fines and imprisonment. Such damage would be irreparable, since the infringement of the statutory obligations at issue would be definitively and irremediably established.
62 Second, the contested decision would oblige Lagardère to breach the confidentiality of the sources of journalists working for it, which would make it liable to proceedings brought by them.
63 In that regard, the Commission contends, in the first place, that the risk of criminal sanctions is not established in the present case. The application for interim measures is thus significantly incomplete as it refers to the possibility of criminal sanctions, without making reference to the provision establishing the criminal offence and without giving clarification of the applicable sanction. Furthermore, that risk is hypothetical in so far as the imposition of criminal sanctions is necessarily based on a set of measures to be taken, in particular, by the prosecuting authorities or by potential victims. Moreover, Lagardère is not obliged to obtain the consent of its employees or its company officers in order to comply with the contested decision.
64 In the second place, it is inevitable that, in order to carry out its investigation, the Commission must process personal data. The mere fact that it verifies the relevance of such data cannot, in itself, cause serious and irreparable damage when Lagardère has not indicated a risk of disclosure of sensitive, highly private data. In any event, it is for Lagardère to demonstrate the existence of such a risk. In addition, the Commission has provided for specific procedural safeguards in this respect.
Assessment
65 According to the settled case-law of the Court of Justice, 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 Court of Justice. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking the interim relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage. While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 75 and the case-law cited).
66 In order to determine whether the condition relating to urgency is satisfied, it is necessary to examine the claim that Lagardère is at risk of suffering serious and irreparable damage because, in order to comply with the contested decision, it would be compelled to commit criminal offences.
67 Although the Commission maintains that the application for interim measures is incomplete as regards the content of the rules of French law on which Lagardère seeks to rely in this regard, it is clear from paragraphs 23 to 30 of the present order that this argument must be dismissed.
68 As far as the content of those rules is concerned, it is apparent inter alia from the application for interim measures, the scope of which is not challenged in that regard by the Commission, that under French law a penalty of imprisonment and a fine is incurred for any breach of the privacy of other persons by transmitting, without the consent of their author, statements made in private or for malicious disclosure of correspondence sent, transmitted or received by electronic means.
69 Among other things, the contested decision requires Lagardère to collect all the interactions conducted by various means of communication over a period of several years between a number of natural persons and certain interactions between other natural persons, then to communicate the information collected to the Commission.
70 It is common ground that, in accordance with paragraph 2 of that decision, that obligation extends inter alia to interactions through private or personal email boxes and private or personal mobile devices of the employees and company officers concerned, provided those email boxes and devices have been used at least once for business communications.
71 In those circumstances, it is not disputed that, in order to comply fully with the contested decision, Lagardère, which is not a public authority, would, to a large extent, have to access the communications of certain of its employees and company officers, even though French law does not explicitly confer on it any power to do so and it claims, without being effectively contradicted on that point, that it has not been able to obtain the consent of the persons concerned.
72 Therefore, in the light of the wording of the provisions of criminal law cited by Lagardère and the information regarding French law contained in its application for interim measures and in the annexes thereto, which is not directly contested by the Commission, the claim that the conduct which Lagardère would have to adopt in order to comply with the contested decision could constitute a criminal offence in French law has the degree of probability required by the case-law set out in paragraph 65 of the present order.
73 Although it certainly cannot be completely ruled out a priori that Lagardère could avoid criminal liability, entirely or partially, by relying on the obligations or the compulsion on it resulting from the contested decision, that is, in essence, a matter of French law on which no information has been provided by the parties to the court hearing the application for interim measures.
74 In particular, although the Commission asserts that Lagardère is not required to obtain the consent of its employees or its company officers in order to collect and then transmit to it the documents referred to in the contested decision, it must be stated that the Commission does not demonstrate, on the basis of the applicable legislation or the past practice of the competent national authorities, that Lagardère could avoid any criminal liability in collecting and transmitting to it all the documents referred to in that decision without having been given prior authorisation to do so by the persons concerned.
75 It follows from the above that, in the light of the information submitted to the court hearing the application for interim measures, Lagardère must be considered to have established to the requisite legal standard that, in order to comply with the contested decision, it would be compelled to adopt conduct which could, in all likelihood, justify its criminal liability and therefore make it subject to criminal sanctions.
76 For the reasons set out in paragraphs 44 to 49 of the present order, the fact that the imposition of such penalties will require the adoption of procedural measures by the competent authorities or by potential victims cannot rule out the risk claimed by Lagardère.
77 The damage to which Lagardère is thus exposed must be regarded as serious, in particular having regard to the stigma attached to a criminal conviction and the breach of the bond of trust with its company officers and its employees which could arise from the commission of criminal offences against them.
78 Moreover, such non-material damage would be irreparable in so far as a possible annulment of the contested decision would not enable Lagardère to be relieved of its criminal liability or the assessments made regarding Lagardère in respect of the commission of criminal offences to be challenged.
79 The condition relating to urgency must therefore be considered to be met in the present case.
80 As to the remainder, since the President of the General Court wrongly held that that condition was not satisfied, without having considered the condition relating to a prima facie case, the examination of which requires assessments both of fact and of law, the case must be referred back to the General Court in order for judgment to be given on that condition and, where appropriate, the interests involved to be weighed up.
The application for suspension of the contested decision, as amended by Commission Decision C(2024) 572 final of 24 January 2024
81 It is not clear from the appeal whether the application for suspension of the contested decision, as amended by Commission Decision C(2024) 572 final of 24 January 2024, until the President of the General Court gives a fresh ruling on the application for interim measures in Case T‑1119/23 R or, failing that, until the General Court rules on the action in Case T‑1119/23 (‘the additional application’) must be understood as being indissociable from the application to grant the form of order sought in Case T‑1119/23 R or as constituting a separate head of claim.
82 In so far as the additional application is to be interpreted as being indissociable from the application to grant the form of order sought in Case T‑1119/23 R, it must be stated that judgment has already been given on that application in paragraphs 58 and 80 of the present order.
83 If, on the other hand, the additional application should be interpreted as constituting a separate head of claim, it must be stated, first, that such an application does not meet the requirements of Article 170(1) of the Rules of Procedure of the Court of Justice in so far as, under that provision, the appellant may not supplement the form of order sought at first instance.
84 The additional application differs, in part, from the form of order sought by Lagardère at first instance.
85 Therefore, assuming that the additional application must be understood as having been submitted with a view to supplementing the form of order sought at first instance, it should be dismissed as inadmissible, in so far as it constitutes a new head of claim (see, by analogy, order of the Vice-President of the Court of Justice of 20 March 2023, Xpand Consortium and Others v Commission, C‑739/22 P(R), EU:C:2023:228, paragraph 20).
86 Second, the additional application also cannot be viewed as an application for interim measures brought under Article 160 of the Rules of Procedure of the Court of Justice, since Article 160(4) of those Rules of Procedure makes the admissibility of such an application subject to submission by separate document (see, by analogy, order of the Vice-President of the Court of Justice of 20 March 2023, Xpand Consortium and Others v Commission, C‑739/22 P(R), EU:C:2023:228, paragraph 21).
87 Moreover, in the present case Lagardère has brought an application for interim measures before the Court of Justice, registered under case number C‑89/24 P(R)‑R, which does not include a form of order corresponding to the additional application.
88 It follows that that application must be dismissed as inadmissible.
Costs
89 Since the case has been referred back to the General Court, the costs must be reserved.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1. The order of the President of the General Court of the European Union of 19 January 2024, Lagardère v Commission (T‑1119/23 R, EU:T:2024:16), is set aside.
2. The case is referred back to the General Court of the European Union in order for judgment to be given on the condition relating to a prima facie case and, where appropriate, for the interests involved to be weighed up.
3. The application brought by Lagardère SA seeking suspension of the obligation imposed on Lagardère by Commission Decision C(2023) 6429 final of 19 September 2023 relating to a procedure pursuant to Article 11(3) of Council Regulation (EC) No 139/2004 (Case M.11184 – Vivendi/Lagardère), as amended by Commission Decision C(2024) 572 final of 24 January 2024, to collect and communicate to the European Commission documents contained in the private or personal email boxes and on the private or personal mobile devices of certain employees and company officers of Lagardère until the President of the General Court gives a fresh ruling on the application for interim measures in Case T‑1119/23 R or, failing that, until the General Court rules on the action in Case T‑1119/23 is dismissed.
4. The costs are reserved.
[Signatures]