Provisional text
ORDER OF THE VICE-PRESIDENT OF THE COURT
11 April 2024 (*)
(Appeal – Interim relief – Competition – Concentrations – Media market – Request for information – Personal data – Urgency – Right to respect for private life)
In Case C‑90/24 P(R),
APPEAL under the second subparagraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 2 February 2024,
Vivendi SE, established in Paris (France), represented by Y. Boubacir, F. de Bure, E. Dumur, P. Gassenbach, S. Schrameck, O. Thomas and P. Wilhelm, 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, Vivendi SE seeks to have set aside the order of the President of the General Court of the European Union of 19 January 2024, Vivendi v Commission (T‑1097/23 R, EU:T:2024:15; ‘the order under appeal’), by which the President of the General Court dismissed its application for, first, suspension of the operation of Commission Decision C(2023) 6428 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) 7463 final of 27 October 2023 (‘the decision at issue’), and, second, as a precautionary measure, an order that the Commission retain all of the documents concerned by the decision at issue on a dedicated electronic device, delivered under electronic seal to an independent, trusted third party.
Legal context
2 Recital 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1, and corrigendum OJ 2018 L 127, p. 2) (‘the GDPR’), reads as follows:
‘… This Regulation also provides a margin of manoeuvre for Member States to specify its rules, including for the processing of special categories of personal data (“sensitive data”). …’
3 Article 6(1) and (3) of that regulation provides:
‘1. Processing shall be lawful only if and to the extent that at least one of the following applies:
(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
…
(c) processing is necessary for compliance with a legal obligation to which the controller is subject;
…
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
…
3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by:
(a) Union law; or
(b) Member State law to which the controller is subject.
…’
4 Article 9(1) and (2) of the Regulation provides:
‘1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.
2. Paragraph 1 shall not apply if one of the following applies:
(a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union law or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;
…
(g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;
…’
Background to the dispute
5 The background to the dispute is set out in paragraphs 2 to 8 of the order under appeal. It may, for the purposes of the present proceedings, be summarised as follows.
6 On 24 October 2022, Vivendi notified the European Commission of a concentration which consisted in the acquisition of exclusive control of Lagardère SA. On 9 June 2023, that concentration was approved by the Commission, subject to compliance with the commitments given by Vivendi.
7 On 25 July 2023, the Commission informed Vivendi of the opening of a formal investigation into a possible early implementation of the concentration. In the context of that procedure, by Decision C(2023) 6428 final of 19 September 2023, the Commission sent Vivendi a request for information with a deadline of 27 October 2023. By Decision C(2023) 7463 final of 27 October 2023, the Commission extended that deadline until 1 December 2023.
Procedure before the General Court and the order under appeal
8 By application lodged at the Registry of the General Court on 23 November 2023, Vivendi brought an action for annulment of the decision at issue.
9 By separate document lodged at the Court Registry on 24 November 2023, Vivendi submitted an application for interim measures seeking, first, suspension of the operation of that decision and, second, as a precautionary measure, an order that the Commission retain all the documents concerned by the decision at issue on a dedicated electronic device, delivered under electronic seal to an independent, trusted third party, for example a bailiff or an agent, within a period that is reasonable and compatible with the material constraints associated with making copies of the devices containing those documents.
10 By order of 28 November 2023, Vivendi v Commission (T‑1097/23 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 decision at issue until the adoption of the order terminating the proceedings in Case T‑1097/23 R, without prejudice to Vivendi’s obligation to continue to collect the information and to retain, on an electronic device, all the documents concerned by that decision which may be of interest for the Commission’s investigation.
11 By the order under appeal, the President of the General Court dismissed the application for interim measures referred to in paragraph 9 of this order on the ground that Vivendi had failed to establish that the condition relating to urgency was satisfied, and cancelled his order of 28 November 2023 (T‑1097/23 R).
12 In the first place, in paragraph 29 of the order under appeal, the President of the General Court held that the risk of penalty payments or fines being imposed on Vivendi was hypothetical at the stage of the proceedings at which that order was to be made.
13 In the second place, in paragraph 39 of that order, he rejected Vivendi’s argument alleging damage related to the mobilisation of significant human and financial resources.
14 In the third place, in paragraphs 41 and 42 of the same order, the President of the General Court took the view that the fact that the Commission could view a wealth of documents despite them being manifestly unrelated to the subject matter of the investigation could not cause Vivendi serious and irreparable damage.
15 In the fourth place, in paragraph 43 of the order under appeal, the President of the General Court rejected Vivendi’s argument alleging damage resulting from the breach of the right to privacy of some of its employees and company agents.
16 In the fifth place, he took the view, in paragraph 51 of that order, that the alleged damage resulting from the risk of Vivendi incriminating itself was incapable of demonstrating that the condition relating to urgency was satisfied.
17 In the sixth place, in paragraphs 52 and 54 of the order, the President of the General Court held that the risk of Vivendi being required to pay penalty payment or fines was not irreparable and that that risk was purely hypothetical.
Forms of order sought on appeal and procedure before the Court of Justice
18 Vivendi claims that the Court should:
– set aside the order under appeal;
– order the suspension of the operation of the decision at issue until final judgment is given by the General Court and, as the case may be, by the Court of Justice on the action for annulment brought by Vivendi against that decision;
– in the alternative, refer the case back to the General Court; and
– order the Commission to pay the costs of both sets of proceedings.
19 The Commission contends that the Court should:
– dismiss the appeal; and
– order Vivendi to pay the costs.
20 By its order of 6 February 2024, Vivendi v Commission (C‑90/24 P(R)–R, EU:C:2024:121), 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 Vivendi, by the decision at issue, to collect and communicate to the Commission the documents referred to in that decision until the adoption of the order terminating the interim proceedings in Case C‑90/24 P(R)-R or the order ruling on this appeal, whichever is earlier, without prejudice to the obligation on Vivendi to take all appropriate measures to ensure that all of those documents are retained.
The appeal
21 In support of its appeal, Vivendi relies on six grounds, the first alleging breach of the principle of equality of arms and of the adversarial principle, and the second to sixth alleging manifest errors in the assessment of the damage alleged by it.
Arguments
22 By its fourth ground of appeal, which must be examined first, Vivendi claims that the President of the General Court made a manifest error in the assessment of the damage arising from the large-scale breach of the right to privacy of the persons concerned by the decision at issue.
23 In the first place, the line of argument adopted in paragraph 45 of the order under appeal narrows the scope of protection of private life only to sensitive personal data, as defined by the GDPR. However, the latter concept is very narrow in scope, as it is apparent from the GDPR and from the case-law of the General Court, as it covers only the most intimate and sensitive information of the persons concerned. The safeguards provided in respect of sensitive personal data cannot therefore ensure the protection of all personal data relating to the private life of those persons and are not, therefore, an adequate means of preventing the damage upon which Vivendi relies.
24 In the second place, Vivendi argues that several of the documents included in the annex to its application for interim measures show that the decision at issue requires the collection and communication to the Commission of documents relating to the private life of the persons concerned.
25 In the third place, the order under appeal entirely disregards the constraints arising, for Vivendi, from French criminal and labour law. It is thus materially impossible for Vivendi to comply with the decision at issue without facing both criminal and civil penalties.
26 In the fourth place, the safeguards provided by the Commission with regard to sensitive personal data cannot prevent the occurrence of the damage upon which Vivendi relies, since those safeguards entail documents containing such data being handed over to the Commission and the Commission viewing them.
27 In the fifth place, contrary to what is asserted in the order under appeal, the professional secrecy by which the Commission’s officials and staff are bound cannot constitute a sufficient guarantee that the damage pleaded will not eventuate, since it is also in Vivendi’s interests for such officials and staff to be prevented from having access to protected documents. In addition, the President of the General Court failed to take account of the fact, a fact explicitly pleaded by Vivendi, that the Commission admitted a number of third parties to intervene in the proceedings, thus giving rise to a risk of those third parties accessing confidential data and disclosing such data.
28 The Commission contends that the fourth ground of appeal must be rejected as unfounded.
29 It contends, in particular, that it is inevitable that, in order to conduct its investigation, it will have cause to handle personal data. The mere fact that it assesses the relevance of such data cannot, in itself, cause serious and irreparable damage. In that context, the existence of procedural safeguards applicable to sensitive personal data is a relevant factor in order to assess the proportionality of the interference at issue in the right to the protection of private life. As to the remainder, the strict obligations of professional secrecy by which the Commission’s officials and staff are bound will avert the risk of unauthorised disclosure of the personal data collected.
30 As for the argument based on third parties’ potential access to personal data, the Commission contends, first of all, that that argument must be rejected as inadmissible because it was insufficiently substantiated at first instance. Next, it argues that, in the light of the strict obligations of confidentiality by which its officials and staff are bound, the latter cannot disclose confidential information to third parties. Lastly, the third parties concerned would have access to the file only if there were a statement of objections, and they would never have access to the confidential versions of the documents in the file.
Assessment
31 With regard to Vivendi’s arguments based on a risk of a breach of the right to privacy of some of its employees and company agents, the President of the General Court found, in paragraph 44 of the order under appeal, that, in so far as undertakings act through their employees and company agents, the Commission is entitled, for the purposes of an investigation in the field of competition law, to request information relating to those persons’ actions, provided that those actions come within the sphere of the undertaking and do not encroach upon their private life.
32 In paragraph 45 of that order, the President of the General Court pointed out that, with that in mind, the Commission had informed Vivendi of the specific procedural safeguards applied in relation to sensitive personal data, and that that institution had therefore taken steps to prevent the risk pleaded by Vivendi from occurring. He therefore inferred that, in the light of those precautions, the requests for information relating to the mobile telephones and emails of Vivendi’s employees could not give rise to the serious and irreparable damage upon which Vivendi relied.
33 In paragraph 46 of the order, the President of the General Court observed that, in any case, the Commission’s officials and staff were bound by strict obligations of professional secrecy. In that regard, it noted, in paragraph 47 of the same order, that those officials and staff were prohibited from disclosing, without due authorisation, information brought to their notice in the exercise of their duties, unless that information has already been made public or is publicly accessible.
34 In those circumstances, with regard, in the first place, to the assessment contained in paragraph 45 of the order under appeal, it should be observed that it follows from the actual wording of that paragraph that that assessment is based on the consideration given to the procedural safeguards referred to in paragraphs 26 to 28 of that order.
35 It is apparent from paragraphs 26 to 28 of the order that those safeguards relate exclusively to data falling into three categories: data protected by the confidentiality of exchanges between lawyers and their clients, data relating to journalistic sources and sensitive personal data.
36 That latter category, mention of which is made only in paragraph 45 of the order under appeal, is not defined in that order.
37 In those circumstances, in order to assess the scope of the assessments made by the President of the General Court, it is necessary to identify the scope given to that category by the decision at issue. That decision states that it applies a specific set of rules to ‘sensitive personal data as defined by the [GDPR]’. It follows from Article 9(1) of the GDPR, read in the light of recital 10 thereof, that that concept covers personal data the processing of which reveals a natural person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, as well as genetic data, biometric data the processing of which enables a natural person to be uniquely identified, data concerning health or data concerning a natural person’s sex life or sexual orientation.
38 In the light of the scope thus conferred on the concept of ‘sensitive personal data’, it appears, as Vivendi claims, that the procedural safeguards referred to in paragraph 45 of the order under appeal do not apply to all the data relating to the private life of the persons concerned, in particular since those safeguards offer no form of protection to data concerning, for example, those persons’ family life, tastes or private activities unrelated to politics, religious or philosophical beliefs or trade union membership.
39 In addition, it must be stated that, in its application for interim measures, Vivendi relied on the risk of access to data that may be connected, in general terms, to the private life of the persons concerned. While mention is indeed made, in paragraph 95 of that application, to sensitive personal data, such data is mentioned in a citation of the General Court’s case-law and cannot be understood as having been intended to limit the scope of the arguments put forward by Vivendi.
40 Vivendi is therefore justified in arguing that, by finding that the safeguards referred to in paragraph 45 of the order under appeal were specifically intended to prevent the risk pleaded by Vivendi from occurring and by inferring from that fact that the requests for information could not give rise to the serious and irreparable damage upon which Vivendi relied, the President of the General Court failed to take into consideration all the personal data which may appear in the documents to be handed over to the Commission which are relevant to assessing the existence and the gravity of that damage.
41 Therefore, by taking the view that those guarantees were sufficient to reject Vivendi’s arguments alleging a risk of a breach of the right to privacy of some of its employees and company agents, the President of the General Court made a manifest error of assessment.
42 With regard, in the second place, to the grounds set out, for the sake of completeness, in paragraphs 46 and 47 of the order under appeal, it must indeed be found that the President of the General Court could rightly take the view that the Commission’s officials and staff were not authorised to disclose freely to the public the information contained in the documents which Vivendi would hand over to the Commission pursuant to the decision at issue.
43 However, first, as Vivendi argues, the obligations of professional secrecy by which the Commission’s officials and staff are bound cannot prevent the breach of the right to respect for the private life of some of Vivendi’s employees and company agents arising from the fact that those officials and staff themselves have access to personal data related to the private life of those employees and company agents.
44 Second, it must be observed that Vivendi had also mentioned, in paragraph 96 of its application for interim measures, the risk of ‘interested third parties admitted to the proceedings by the Commission’ being able to view the documents provided to the Commission by Vivendi, referring, in that regard, to the letters contained in the annex to that application informing it that certain interested third parties had been admitted to the proceedings.
45 Since that assertion is sufficiently clear and substantiated to require that it be taken into account by the General Court, the view cannot be taken that the argument relating to the risk of disclosure of certain documents to third parties, put forward in support of the fourth ground of appeal, must be rejected as inadmissible because it is a new argument which was not raised at first instance.
46 In addition, as Vivendi argues, the obligations of professional secrecy imposed on the Commission’s officials and staff have neither the object nor the effect of governing the access of third parties admitted to the proceedings to the documents contained in the file in the Commission’s possession.
47 Moreover, while the Commission argues that such access can be precluded under other rules, it must be stated that no mention is made of those rules in paragraphs 46 and 47 of the order under appeal.
48 It follows that, by finding in paragraphs 46 and 47 of the order under appeal that the obligations of professional secrecy imposed on the Commission’s officials and staff could prevent the harm alleged by Vivendi from occurring, the President of the General Court erred in his legal characterisation of the facts.
49 In the third place, it must be stated that the considerations set out in paragraph 44 of the order under appeal are incapable, on their own, of justifying the rejection of Vivendi’s arguments based on the risk of the breach of the right to privacy of some of its employees and company agents.
50 In that paragraph, the President of the General Court simply made reference to the Commission’s power to request information relating to the actions of Vivendi’s employees and company agents, ‘provided that those actions come within the sphere of the undertaking and do not encroach upon their private life’. In so doing, he made no assessment as to whether any harm would exist if the information communicated to the Commission were to relate, as Vivendi claims, to the private life of the persons concerned.
51 It follows from all the foregoing that, in the light of the errors vitiating paragraphs 45 to 47 of the order under appeal, that order does not contain any grounds capable of justifying the rejection of Vivendi’s arguments based on the risk of the breach of the right to privacy of some of its employees and company agents.
52 The fourth ground of appeal must therefore be upheld.
53 Since the application for interim measures was dismissed on the ground that Vivendi had not established that the condition relating to urgency was satisfied, it follows that the operative part of the order under appeal is unfounded.
54 It therefore follows that the order under appeal must be set aside in its entirety, without it being necessary to examine the other grounds put forward in support of the appeal.
The application for interim measures submitted before 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 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 should 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 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 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 28 and the case-law cited).
58 In the present case, in the light of the assessments already made by the President of the General Court and the written part of the 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.
Arguments
59 With a view to demonstrating that the condition relating to urgency is satisfied, Vivendi relies on a number of separate instances of damages.
60 With regard to the line of argument based on the fact that the decision at issue gives rise to a risk of the breach of the right to privacy of some of Vivendi’s employees and company agents, which must be examined first of all, Vivendi submits that the decision at issue requires it to communicate to the Commission, in their entirety and covering the whole period in question, all the conversations between a number of natural persons, regardless of the professional or private nature of those conversations. Vivendi is also required to communicate all conversations containing certain keywords, even if those conversations are contained in private or personal e-mailboxes and private or personal mobile devices of the employees and company agents concerned, provided that those e-mailboxes or devices have been used at least once for professional communications. Many of the documents which must thus be communicated to the Commission are likely to contain sensitive information for Vivendi and information relating to the private life both of the persons concerned and of third parties.
61 The collection and communication to the Commission of such documents by Vivendi are incompatible with the rules of French civil and criminal law, as well as with rules under EU law and in the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Vivendi thus has an impossible choice before it, because it would face heavy penalties whether or not it complies with the decision at issue.
62 In addition, the disclosure of the information in question would cause serious damage to Vivendi and to the persons concerned by expanding the group of persons with knowledge of that information. That damage would be irreparable because the breach of the rights concerned could no longer be remedied by annulling the decision at issue.
63 The Commission contends, first, that the legal impossibility of complying with the decision at issue, as pleaded by Vivendi, could at most give rise to unexceptional pecuniary damage.
64 Second, the core of Vivendi’s allegations relate to an infringement of third parties’ rights. However, in interim proceedings, the applicant may rely only the demonstration of a risk to its interests in order to establish that the condition of urgency is satisfied.
65 Third, in the light of the case-law of the General Court, only the disclosure of sensitive personal data can establish the existence of serious and irreparable damage. It is inevitable that the Commission has to handle personal data in order to conduct its investigation. The mere fact that it examines the relevance of such data cannot, in itself, give rise to serious and irreparable damage.
66 In addition, Vivendi has not demonstrated that the documents to be handed over to the Commission contain sensitive personal data. In any case, the Commission granted Vivendi specific procedural safeguards applicable to sensitive personal data, safeguards which come on top of the strict obligations of professional secrecy imposed on the Commission’s officials and staff.
Assessment
67 It follows from settled case-law of the Court that 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. 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).
68 In the first place, it must be observed that, as the Commission contends, Vivendi’s line of argument alleging that the decision at issue gives rise to a risk of the breach of the right to respect for private life is essentially based on the infringement of third parties’ rights, namely the rights of Vivendi’s employees and company agents whose communications would be collected and handed over to the Commission pursuant to the decision at issue.
69 Thus, although Vivendi refers extensively, in its application for interim measures, to the interference in the private life of those employees and company agents which would be entailed by compliance with the decision at issue, in relation to its own rights it claims merely that the documents to be communicated to the Commission may contain sensitive information for that company, without setting out the nature of that information or its connection to the right to respect for private life.
70 It follows from the case-law recalled in paragraph 67 of this order that the condition relating to urgency is usually assessed in the light of the damage which may potentially be caused to the party seeking interim relief.
71 However, that principle must not be interpreted in such a way that it would prevent the purpose of the procedure for interim relief being achieved, that is to say, to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the Court. With that in mind, it has been held inter alia that a Member State may rely on damage which it does not suffer directly, since the Member States are responsible for the interests which are regarded as general interests at national level and may defend them in proceedings for interim relief (see, to that effect, order of the Vice-President of the Court of 3 June 2022, Bulgaria v Parliament and Council, C‑545/20 R, EU:C:2022:445, paragraph 35 and the case-law cited).
72 However, a private undertaking such as Vivendi cannot effectively rely on a risk of infringement of third parties’ rights with a view to obtaining an order of interim measures relating to an act which is not prejudicial to its interests (see, to that effect, order of 6 May 1988, Crete Citron Producers Association v Commission of the European Communities, 112/88 R, EU:C:1988:241, paragraph 20).
73 That is not however the case here.
74 The damage upon which Vivendi relies in connection with the right to respect for private life would be the direct result of the conduct which, according to it, it would be forced to adopt, in respect of some of its employees and company agents, in order to comply with the decision at issue.
75 It follows from that fact that, by its application for interim measures, Vivendi is seeking to act not in place of third parties who are independently concerned by the effects of the decision at issue, but rather personally, in order to protect its own interests by avoiding being forced itself to cause serious and irreparable damage to third parties, damage for which it could, moreover, potentially be held liable, if that damage were to be caused to those third parties on account of their ties to Vivendi, without the third parties being in a position themselves to obtain interim relief to prevent the damage from occurring.
76 In that specific context, the court hearing the application for interim relief cannot, without disregarding the purpose of the procedure for interim relief recalled in paragraph 71 of this order, take the view that the serious and irreparable damage which Vivendi would be forced to cause to some of its employees and company agents, in order to comply with the decision at issue, could not be pleaded by that company in order to demonstrate that the condition relating to urgency is satisfied.
77 It is therefore necessary to assess, in the second place, whether compliance with the decision at issue is liable to cause, with a sufficient degree of probability, serious and irreparable damage to some of Vivendi’s employees and company agents.
78 Since Vivendi intends to rely on infringement of certain fundamental rights, it must be recalled that it follows from the case-law of the Court that the argument that harm is, by definition, irreparable because it falls within the scope of fundamental rights 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 irreparable (order of the Vice-President of the Court of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 42 and the case-law cited).
79 However, it cannot be inferred from the foregoing that infringement of a fundamental right can never be regarded as constituting serious and irreparable harm.
80 First, the infringement 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, is liable, because of the very nature of the right infringed, to give rise by itself to serious and irreparable harm (order of the Vice-President of the Court of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 43).
81 Second, the infringement of fundamental rights which, like the right to respect for private life enshrined in Article 7 of the Charter of Fundamental Rights, do not fall within the category referred to in the preceding paragraph must be assessed in the light of all the circumstances in question, with a view to determining whether the scale and nature of the damage entailed by that infringement justifies that damage being regarded as serious and irreparable (see, to that effect, order of the Vice-President of the Court of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 44).
82 It therefore falls to the court hearing the application for interim relief to determine whether compliance with the decision at issue is capable of entailing, with a sufficient degree of probability, interference in the private life of some of Vivendi’s employees and company agents and, if so, to assess, in the light of all the circumstances in question, the scale and nature of the damage resulting from that infringement.
83 In that regard, the decision at issue requires Vivendi inter alia to collect all the exchanges made, by various means of communication, over a period of several years between a number of natural persons, as well as some exchanges between other natural persons, and then to communicate the information thus collected to the Commission.
84 With regard to the latter exchanges, it is apparent from that decision that the selection of the documents to be communicated to the Commission must be made by applying a series of keywords of a somewhat general nature, including inter alia the surname or the first name of a number of public figures from the worlds of politics or the media.
85 Moreover, exchanges connected, even indirectly, to any document to be communicated to the Commission must themselves be provided to that institution, since it follows from paragraph 9 of the decision at issue that all emails in ‘the same chain’ as such a document or, in the case of a message exchanged by SMS or by instant messaging, the entire conservation over the whole period concerned must be handed over to the Commission.
86 Furthermore, it is established that, in accordance with paragraph 2 of that decision, those obligations extend inter alia to exchanges made using the private or personal e-mailboxes and private or personal mobile devices of the employees and company agents concerned, provided that those e-mailboxes and devices have been used at least once for professional communications.
87 In the light of the wording of the decision at issue, it must be observed, first of all, that the documents which Vivendi is required to collect and communicate to the Commission relate to the content of communications between natural persons.
88 Next, it must be observed that, given the very broad scope, both ratione materiae and ratione temporis, of those obligations imposed on Vivendi by that decision and the fact that those obligations relate inter alia to collecting exchanges made using communication devices normally used for purely private purposes, it appears highly likely that a significant number of the documents to be thus communicated to the Commission will not fall within the professional sphere and might provide information about the private life of the persons concerned.
89 Lastly, the decision at issue does not contain any mechanism intended to prevent, in general terms, the collection and communication to the Commission of documents relating to the private life of those persons or to offer safeguards vis-à-vis the handling of such documents.
90 The arguments put forward by Vivendi therefore demonstrate, with a sufficient degree of probability, that the personal data to be collected and communicated to the Commission pursuant to the decision at issue are liable to allow precise conclusions to be drawn concerning the private life of the persons concerned, which means, in accordance with the settled case-law of the Court, that the breach of the right to privacy which ensues must be regarded as serious (see, by analogy, judgment of 2 March 2021, Prokuratuur (Conditions of access to data relating to electronic communications), C‑746/18, EU:C:2021:152, paragraph 39).
91 Since the non-material damage resulting from such a breach of the right to privacy cannot be fully erased by financial compensation or be removed a posteriori if the decision at issue is annulled, that damage must be regarded as being irreparable.
92 That assessment is not called into question by the solution adopted by the President of the Court in the order of 27 September 2004, Commission v Akzo and Akcros (C‑7/04 P(R), EU:C:2004:566), upon which the Commission relies.
93 It is true that, in that order, the President of the Court considered that the breach of professional privilege which could be entailed by the Commission having access to documents allegedly covered by that privilege could not cause serious and irreparable harm to the undertaking concerned.
94 However, that solution was justified, inter alia, by the fact that the risk alleged by the applicant for interim relief in the case which gave rise to that order related solely to a more detailed reading, by Commission officials, of documents which they had already examined, albeit only briefly. It must also be pointed out that that case concerned only a limited number of documents which did not relate to the private life of natural persons.
95 In that context, it must be observed once more, in the third place, that the procedural safeguards upon which the Commission relies are not sufficient to render the damage pleaded by Vivendi non-serious.
96 First, it is apparent from the decision at issue that the Commission provided for a specific procedure intended to restrict the access of its officials and staff to the documents containing sensitive personal data.
97 It is, however, clear from paragraphs 34 to 41 of the present order that that procedure cannot exclude or minimise the processing of personal data which relate to the private life of the persons concerned but which cannot however be classified as ‘sensitive personal data’.
98 In addition, such protection cannot prevent specific conclusions being drawn regarding the private life of the persons concerned by consulting the data communicated to the Commission, since only a limited proportion of the personal data relating to the private life of those persons are covered by the concept of sensitive personal data, and the decision at issue requires that personal data are collected on a large scale so that they may be communicated to the Commission.
99 Second, it is in fact apparent from the line of argument put forward by the Commission that its officials and staff are subject to strict obligations of professional secrecy, meaning that they are, in principle, prohibited from disclosing information arising from the documents communicated by Vivendi and of which they become aware.
100 However, those obligations do not limit the possibilities available to those officials and staff of having access to the personal data relating to the private life of the persons concerned, access which constitutes as such serious interference in those persons’ right to privacy.
101 In the fourth place, it must be observed that it does appear, at first sight, necessary, as the Commission contends, for that institution to be able, to a certain degree, to process personal data relating to the private life of the employees and company agents of the undertakings which it investigates, as otherwise its powers of investigation would risk being rendered very largely ineffective. Similarly, in the context of an investigation conducted by the Commission, the collection of documents which might, as the case may be, ultimately prove to be of no interest to that investigation is, in practice, difficult to avoid.
102 The Commission likewise rightly notes that Article 6 of the GDPR provides that it may be lawful, subject to certain conditions, for personal data to be processed even if the data subject has not consented to such processing.
103 The considerations set out in paragraphs 101 and 102 of this order appear, therefore, potentially relevant for the purposes of assessing the lawfulness of the decision at issue and, therefore, of examining the condition relating to the establishment of a prima facie case.
104 However, those considerations cannot be taken into account when examining the condition relating to urgency.
105 The court hearing an application for interim relief must postulate, solely for the purposes of assessing urgency, without this involving it taking any position as regards the merits of the complaints put forward in the main action by the applicant for interim relief, that those complaints might be upheld. The serious and irreparable damage whose likely occurrence must be established is that which would result, where relevant, from a refusal to grant the interim measures sought in the event that the action in the main proceedings was subsequently upheld (see, to that effect, order of the Vice-President of the Court of 19 December 2013, Commission v Germany, C‑426/13 P(R), EU:C:2013:848, paragraph 52, and order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 61).
106 In the present case, the condition relating to urgency must therefore be assessed by postulating that the decision at issue is unlawful and that the interference in the right to privacy of the persons concerned resulting from that decision is, therefore, impermissible.
107 It follows that, in order to determine whether that condition is met in the present case, the court hearing the application for interim relief does not have to determine whether that inference was necessary or, more broadly, permissible, but rather must simply assess the scale and nature of the damage which would result from the interference if it were ultimately to prove to be impermissible.
108 The Commission’s arguments by which it seeks to demonstrate that that interference is both essential for the effectiveness of its investigations and consistent with the relevant rules of EU law must therefore be dismissed as irrelevant when examining the condition relating to urgency.
109 In the light of all the foregoing, the condition relating to urgency must be regarded as satisfied in the present case.
110 As for the remainder, since the President of the General Court was wrong to conclude that that condition was not satisfied, without having examined the condition relating to the establishment of a prima facie case, the examination of which presupposes assessments both of fact and of law, the case must be referred back to the General Court for that court to rule on that condition and, if necessary, for the relevant interests to be weighed up.
Costs
111 Since the present case is referred back to the General Court, the costs must be reserved.
On those grounds, the Vice-President of the Court hereby orders:
1. The order of the President of the General Court of the European Union of 19 January 2024, Vivendi v Commission (T‑1097/23 R, EU:T:2024:15), is set aside.
2. The case is referred back to the General Court of the European Union for it to rule on the condition relating to the establishment of a prima facie case and, if necessary, for the relevant interests to be weighed up.
3. The costs are reserved.
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