Case T‑345/12 R

Akzo Nobel NV and Others

v

European Commission

(Interim relief — Competition — Publication of a decision finding an infringement of Article 81 EC — Rejection of claim for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Application for interim measures — Urgency — Prima facie case — Weighing up of interests)

Summary — Order of the President of the General Court, 16 November 2012

1.      Application for interim measures — Jurisdiction of the court hearing the application for interim measures — Limits — Applicant seeking prohibition in advance of the Commission adopting a decision to grant access to a document — Application not within the jurisdiction of the court hearing the application for interim measures — Inadmissibility

(Arts 278 TFEU and 279 TFEU; European Parliament and Council Regulation No 1049/2001)

2.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Order of examination and method of verification — Discretion of the court dealing with the application for interim relief

(Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2))

3.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Weighing up of all the interests involved — Suspension of operation of Commission decision on the confidential treatment of information in one of its decisions — Need to preserve the effectiveness of the decision of the General Court on the main action

(Art. 278 TFEU)

4.      Fundamental rights — Respect for private life — Meaning of private life — Application to undertakings — Scope

(Charter of Fundamental Rights of the European Union, Art. 7)

5.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Risk of serious and irreparable damage to fundamental rights

(Arts 278 TFEU and 279 TFEU)

6.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Prima facie examination of pleas relied on in support of the main action — Action brought against a Commission decision refusing confidential treatment of information in one of its decisions finding an infringement of Article 81 EC — Pleas dealing with the confidentiality of information communicated on the basis of the Leniency Notice — Pleas not prima facie unfounded

(Arts 278 TFEU and 339 TFEU; Charter of Fundamental Rights of the European Union, Art. 7)

1.      While the judge hearing an application for interim measures has jurisdiction to review administrative acts already adopted by the Commission, that jurisdiction does not extend to the review of matters on which the Commission has not yet stated its position. The effect of such a power would be to anticipate the arguments on the substance of the case and confuse the administrative and judicial procedures, in a manner incompatible with the system of the allocation of powers between the Commission and the Courts of the European Union. The judge hearing the application for interim measures can therefore only in exceptional circumstances prevent the Commission from exercising its administrative powers, even before the Commission has adopted the final decision whose operation the applicants want to prevent.

It follows that an application for interim measures must be declared to be inadmissible to the extent that it seeks, first, to obtain the suspension of operation of a future decision of the Commission rejecting an application for the continuation of the confidential treatment of a Commission decision relating to proceedings under Article 81 EC, in so far it would permit under Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, access to the full text of that decision and, second, an order that the Commission should refrain from granting such access.

(see paras 17, 18)

2.      See the text of the order.

(see paras 19-22)

3.      The weighing up of the various interests involved requires the judge hearing the application for interim measures to determine whether or not the applicant’s interest in obtaining the interim measures sought outweighs the interest in immediate application of the contested measure by examining, more specifically, whether annulment of that measure by the Court when ruling on the main application would allow the situation which would have been brought about by its immediate operation to be reversed, and, conversely, whether suspension of its operation would prevent it from being fully effective in the event of the main application being dismissed.

The purpose of the procedure for interim relief is to guarantee the full effectiveness of the future decision on the main action, and accordingly the decision made by the judge hearing an application for interim measures is by its nature interim in the sense that it must not either prejudge the future decision on the substance of the case nor render it illusory by depriving it of effectiveness.

It necessarily follows that the interest defended by a party to interim relief proceedings does not merit protection where that party’s request is that the judge hearing the application should adopt a decision which, far from being a merely interim measure, serves to prejudge the future decision on the main action and to render it illusory by depriving it of its effectiveness.

In a case where the General Court will be called upon to rule, in the main action, on whether the contested decision — whereby the Commission rejected the applicants’ claim that it should refrain from publishing the confidential information — should be annulled, it is obvious that, in order to protect the effectiveness of a judgment annulling the contested decision, the applicant must be able to ensure that the Commission should not unlawfully publish the disputed information.

Those considerations are not called into question by the fact that even were the disputed information actually to be published, the result would probably not be that the applicants would be deprived of an interest in bringing proceedings for the annulment of the contested decision.

Consequently, the interest defended by the applicant must prevail over the Commission’s interest in the dismissal of the application for interim measures, a fortiori where the grant of the interim measures requested amounts to no more than maintaining, for a limited period, the status quo which has existed for several years.

(see paras 24-29)

4.      See the text of the order.

(see para. 32)

5.      As regards the condition of urgency, and subject to an examination of the condition that there should be a prima facie case, the interim measures requested must be granted where the applicant’s fundamental rights may be seriously and irreparably harmed by a dismissal of the application for interim measures.

(see para. 33)

6.      In proceedings relating to an application for interim measures, the condition relating to a prima facie case is satisfied where at least one of the pleas in law put forward by the applicant for interim measures in support of the main action appears, prima facie, to be relevant and in any event not unfounded, in that it reveals the existence of difficult legal issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings, or where the discussion of issues by the parties reveals that there is a major legal disagreement whose resolution is not immediately obvious.

In the case of an application for suspension of operation of a Commission decision rejecting the applicant’s request that it refrain from publishing confidential information to be found in one of its decisions, there is a prima facie case where a case raises complex questions of law which cannot, prima facie, be considered as of no relevance, while their resolution deserves thorough examination within the main proceedings.

The applicant’s argument raises the question of law, not yet resolved in the case-law, of whether the contested decision infringes the applicants’ right to professional secrecy, guaranteed by Article 339 TFEU, Article 8 of the European Convention of Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union, because the publication planned by the Commission contains information which the applicant sent to it on the basis of the Leniency Notice and which, consequently, because of its origin and its nature, constitutes confidential information which must be protected from publication.

(see paras 34, 46, 56)