ORDER OF THE PRESIDENT OF THE GENERAL COURT
23 January 2012 (*)
(Application for interim measures – Competition – Commission decision refusing to transmit documents to a national competition authority – Application for interim measures – No interest in bringing proceedings – Disregard of formal requirements – Measures requested not provisional in character – Inadmissibility)
In Case T‑607/11 R,
Henkel AG & Co. KGaA, established in Düsseldorf (Germany),
Henkel France, established in Boulogne-Billancourt (France),
represented by R. Polley, T. Kuhn, F. Brunet and É. Paroche, lawyers,
applicants,
v
European Commission, represented by N. Khan and P.J.O. Van Nuffel, acting as Agents,
defendant,
APPLICATION for interim measures in relation to the Commission’s decision of 30 September 2011 (Case COMP/39.579 – Consumer detergents – and Case 09/0007 F) dismissing the request of the French competition authority that the Commission transfer to it, in the context of Case 09/0007 F concerning the French detergents sector, a number of documents produced in Case COMP/39.579,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought
1 In December 2009, the European Commission initiated a proceeding against Unilever NV and Unilever PLC (hereinafter collectively referred to as ‘Unilever’), The Procter & Gamble Company and Procter & Gamble International Sàrl (hereinafter collectively referred to as ‘P&G’) and Henkel AG & Co. KGaA, the parent company of Henkel France, concerning an anti-competitive cartel on the market for consumer textile detergents in eight Member States including France. That proceeding was closed by Commission Decision C(2011) 2528 final of 13 April 2011, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.579 — Consumer detergents), a summary of which was published in the Official Journal of the European Union on 2 July 2011 (OJ 2011 C 193, p. 14).
2 As is apparent from Decision C(2011) 2528, Henkel AG & Co. was the first undertaking to inform the Commission, in 2008, of the existence of the cartel in question. Consequently, pursuant to its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), the Commission granted it a total immunity from fines (fine set at EUR 0). By contrast, P&G and Unilever, which had also lodged requests, accompanied by several documents, that the said notice be applied, obtained only a reduction of the fines which the Commission finally imposed on them, amounting, respectively, to EUR 211.2 million and EUR 104 million.
3 In parallel with Case COMP/39.579 investigated by the Commission, the Frennch competition authority (‘the ADLC’) carried out an investigation based on Article 101 TFEU and its national equivalent, namely Article L. 420-1 of the French Commercial Code, which concerned an anti-competitive cartel in the consumer textile detergent sector in France and concerned Henkel France, Unilever, P&G and Colgate Palmolive. The four detergent manufacturers referred to having successively applied for the benefit of the French leniency regime, Unilever was regarded as the first undertaking to reveal the cartel and was thus, by a provisional leniency notice, granted a complete exemption from penalty, whereas the reduction in penalty for Henkel France was limited to 30%.
4 Taking the view that the anti-competitive arrangements pursued by the Commission and by the ADLC formed a single infringement or, at least, two closely related infringements concerning the same subject-matter, and arguing that they presented the same facts in their leniency submissions to the Commission and the ADLC, the applicants, Henkel AG & Co. and Henkel France, consider that they were the first to reveal, not only to the Commission but also to the ADLC, the link existing between the said anti-competitive arrangements. According to the applicants, the Commission’s file contains documents, submitted by P&G and Unilever, demonstrating precisely the existence of that link, of which documents, moreover, the applicants hold copies.
5 The applicants have thus sent the Commission a list of all the documents concerned, explaining they need to rely on them in the proceedings before the ADLC. The Commission replied that the undertaking of confidentiality which the applicants gave in the context of the COMP/39.579 proceeding prevented them from themselves sending the documents to the ADLC, but that they could ask the ADLC to request the Commission to send it a copy of the said documents pursuant to Article 11(2) 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). Following a request to that effect by the applicants, the ADLC wrote to the Commission on 12 September 2011 to request the transmission of the documents at issue.
6 By letter of 30 September 2011 (Case COMP/39.579 – Consumer detergents – and Case 09/0007 F), the Commission dismissed the ADLC’s request for transmission of the documents (‘the contested decision’) on the grounds that those documents, having been submitted by leniency applicants, enjoyed a particularly high confidentiality protection and could, moreover, be used in evidence, pursuant to Article 12(2) of Regulation No 1/2003, only for the purpose for which they had been collected. In the Commission's view, the COMP/39.579 proceedings and the ADLC proceedings concern different competition infringements, with the result that the documents cannot be transferred under Regulation No 1/2003.
7 It was in those circumstances that, by application lodged at the Registry of the General Court on 30 November 2011, the applicants brought an action seeking, in essence, the annulment of the contested decision and an order against the Commission requiring it to authorise the disclosure of the disputed documents in the proceedings in progress before the ADLC or in the subsequent proceedings before the cour d’appel de Paris (France). In support of that action, they raise a single plea, claiming infringement of Article 4(3) TEU, of their rights of defence, and of the principle of equality of arms. They challenge the Commission’s arguments that transmission of the documents in question to the ADLC would infringe Article 12 of Regulation No 1/2003 and that the said documents were confidential.
8 By a separate document, lodged at the Registry of the General Court on 2 December 2011, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the General Court should:
– in application of Article 105(2) of the Rules of Procedure of the General Court, suspend operation of the contested decision until the General Court has ruled on the present application for interim measures or, in any event, until the General Court has delivered judgment on the main action;
– order the Commission to allow the provisional disclosure of the documents in the ongoing ADLC proceedings or subsequent proceedings before the cour d’appel de Paris;
– order the Commission to pay the costs;
– order any other measure deemed appropriate.
9 By decision of 8 December 2011, the ADLC closed the procedure in Case 09/0007 F. It held that several companies, including the applicants, had infringed Article 101(1) TFEU and Article L. 420-1 of the French Commercial Code by their participation in an anti-competitive cartel in standard supermarket detergents in France. In consequence, it imposed, inter alia, a fine on P&G of over EUR 200 million and on the applicants a fine of over EUR 90 million. However, Unilever enjoyed a total exemption from the penalty that would have been imposed on it in the absence of leniency.
10 By fax letter received at the Registry of the General Court on 16 December 2011, the applicants stated that, given the ADLC decision of 8 December 2011 – which they intended to challenge before the cour d’appel de Paris – they wished to clarify the forms of order sought both in the main action and in the application for interim measures to the effect that they were seeking an order that the Commission authorise them to rely on the documents at issue in the proceedings before the cour d’appel de Paris.
11 In its observations on the application for interim measures, lodged at the Registry of the General Court on 22 December 2011, the Commission contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicants to pay the costs.
12 By document lodged at the Registry of the General Court the same day, Unilever requested leave to intervene in support of the form of order sought by the Commission. By document of 9 January 2012, the applicants opposed that request, whilst the Commission declared itself in favour.
Law
13 In accordance with Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that application of a measure challenged before the General Court be suspended or prescribe any necessary interim relief. Nevertheless, Article 278 TFEU lays down the principle that actions do not have suspensory effect, since measures adopted by the institutions, organs and agencies of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application may order suspension of operation of such a measure, or other interim relief (see, to that effect, order of the President of 17 December 2009 in Case T-396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
14 Moreover, Article 104(2) of the Rules of Procedure provides that an application for interim measures is to 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 measures applied for. Accordingly, the judge hearing an application for interim measures may order suspension of operation of an act, or other interim relief, 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 harm to the interests of the party applying for relief, the order must be made and produce its effects before a decision is reached in the main action (order of the President in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).
15 In the context of that overall examination, the judge hearing an application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which the 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 the President in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23, and order of the President of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). As the conditions of admissibility for any application for interim measures are a matter of public policy, the judge hearing the application may, even of his own motion at the start of the procedure, ascertain that they have been satisfied (see, to that effect, order of the President of 18 February 2008 in Case T-410/07 R Jurado Hermanos v OHIM (JURADO), not published in the ECR, paragraph 25, and order of the President of 25 April 2008 in Case T-41/08 R Vakakis v Commission, not published in the ECR, paragraph 41).
16 Having regard to the material in the file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures, without it being necessary first to hear oral argument from the parties.
17 In this case, it is necessary at the outset to examine the questions of admissibility raised by the application for interim measures.
18 In that respect, it should be remembered that the application for interim measures requests in particular that the judge hearing the application should, first, suspend operation of the contested decision, refusing transmission to the ADLC of the disputed documents on which the applicants intend to rely in the proceedings in progress before that authority, and, second, order the Commission to authorise provisional disclosure of the said documents in the procedure before the ADLC. However, it is undisputed that the procedure in question was closed by decision of the ADLC of 8 December 2011 (see paragraph 9 above).
19 In those circumstances, those two heads of claim in so far as they refer to the procedure pending before the ADLC have become devoid of purpose, the applicants being no longer in a position to rely on the documents at issue before the ADLC. It follows that, to that extent, the applicants no longer have an interest in obtaining the provisional measures sought, the latter being no longer capable of procuring them a direct benefit (see, to that effect, order of the President in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 57; Case T‑310/00 MCI v Commission [2004] ECR II‑3253, paragraph 44 and case-law cited; and order of the President in Case T‑42/06 R Gollnisch v Parliament, not published in the ECR, paragraph 28).
20 Moreover, as is apparent from their fax of 16 December 2011, the applicants themselves seem to consider that adoption of the ADLC decision of 8 December 2011 has rendered the two heads of claim referred to above devoid of purpose, since they indicate that they wish to claim henceforth that the Commission be ordered to authorise them to rely on the disputed documents in the procedure before the cour d’appel de Paris. However, that fax was not followed by the lodging of the signed original version of the procedural document in question. Consequently, by failing to comply with the conditions of Article 43(1) of the Rules of Procedure, the applicants have not validly amended the forms of order sought in the application for interim measures, or moreover those of the main action.
21 More particularly concerning the application for suspension of operation of the contested decision, it should be added that that decision, rejecting a request from the ADLC, constitutes a negative administrative decision. In that respect, according to well established case-law, an application for suspension of the operation of such a decision is not conceivable, since the granting of the suspension sought cannot have the effect of altering the situation of the applicant. Suspension of operation of the contested decision would be of no practical use to the applicants, insamuch as such a suspension could not take the place of a positive decision acceding to that request. This head of claim must therefore, and in any event, be dismissed for lack of an interest in bringing proceedings, save in so far as suspension of operation of the contested decision might be necessary in order to prescribe one of the other interim measures sought by the applicants, which the judge hearing the application for interim measures might consider admissible and well founded (see, to that effect the order in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, paragraphs 34 and 35 and case-law cited).
22 As regards those other interim measures, it must be held that the head of claim inviting the judge hearing the application for interim measures to adopt any other measures considered appropriate is vague and imprecise in character, so that it does not fulfil the conditions of Article 44(1)(d) of the Rules of Procedure, to which Article 104(3) of those same rules refers. Consequently, this head of claim must be declared manifestly inadmissible (see, to that effect, the order in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, paragraph 36 and case-law cited).
23 With regard to the head of claim inviting the judge hearing the application for interim measures to order the Commission to authorise the provisional disclosure of the disputed documents in the subsequent procedure before the cour d’appel de Paris, it turns out that it corresponds to that submitted in the main action and seeking an order that the Commission authorise the disclosure of the disputed documents in the subsequent procedure before the cour d’appel de Paris. Although the applicants have taken care to describe the disclosure sought as ‘provisional’, this head of claim of the application for interim measures disregards the settled case-law whereby, first, the measures which the judge hearing the application for interim measures may order are provisional, in the sense that they must in principle cease to produce their effects once the judgment terminating the proceedings is delivered and may not in any way prejudge the decision of the General Court to be subsequently given on the main action, or neutralise in advance the consequences of that decision, and, second, those measures are accessory in character, in that they must seek only to safeguard, during the main proceedings before the General Court, the interests of one of the parties to the dispute so as not to make the judgment in the main proceedings illusory by depriving it of its effectiveness (see, to that effect: order of the President in Case C‑313/90 R CIRFS and Others v Commission [1991] ECR I‑2557, paragraphs 23 and 24; order of the President in Commission v Atlantic Container Line and Others, paragraph 22; order of the President in Case T‑164/96 R Moccia Irme v Commission [1996] ECR II‑2261, paragraph 29; order of the President in Case T‑6/97 R Comafrica and Dole Fresh Fruit Europe v Commission [1997] ECR II‑291, paragraph 51; order of the President in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 41).
24 In this case, if the disputed documents were disclosed in the proceedings before the cour d’appel de Paris following an interim measure such as sought by the applicants, it is obvious that that disclosure would prejudge the decision of the General Court in the main action, the subject-matter of which is precisely the disclosure of those same documents. Moreover, disclosure of those documents would produce effects, namely that their contents would become known to all persons having access to the procedure before the cour d’appel de Paris, that would not be capable of ceasing once the decision of the General Court was pronounced (see, by analogy, order of the President in Case T‑610/97 R Carlsen and Others v Council [1998] ECR II‑485, paragraph 56). Such a provisional measure is therefore inconceivable, inasmuch as it is capable of neutralising in advance the consequences of the decision to be subsequently delivered on the substance (see, to that effect, order of the President of the Third Chamber of the Court of Justice in Case 206/81 R Alvarez v Parliament [1981] ECR 2187, paragraph 6).
25 Consequently, the head of claim inviting the judge hearing the application for interim measures to order the Commission to authorise the provisional disclosure of the disputed documents in the procedure before the cour d’appel de Paris must also be declared inadmissible.
26 It follows from the whole of the above that this application for interim measures must be dismissed as inadmissible, without it being necessary to rule on the admissibility of the main action, to which it is ancillary, in so far as it seeks in particular to obtain, in the context of proceedings on the review of legality, a direction to the Commission to authorise the disclosure of the documents at issue in the procedure before the cour d’appel de Paris.
27 In those circumstances, there is no need to rule on the application to intervene by Unilever.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 23 January 2012.