ORDER OF THE PRESIDENT OF THE GENERAL COURT
27 March 2024 (*)
(Interim relief – Access to documents – Regulation (EC) No 1049/2001 – Exception relating to the protection of the commercial interests of a third party – Application for suspension of operation of a measure – No urgency)
In Case T‑1101/23 R,
AQ, represented by C. Mereu and I. Zonca, lawyers,
applicant,
v
European Chemicals Agency (ECHA), represented by C. Buchanan and B. Broms, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By its application based on Articles 278 and 279 TFEU, the applicant, AQ, seeks suspension of the operation of the decision of the European Chemicals Agency (ECHA) of 14 September 2023 granting full access to the document requested in the procedure with the reference [confidential], (1) under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (‘the contested decision’).
Background to the dispute and forms of order sought
2 The applicant is a company specialising in the manufacture of active substances for plant protection products.
3 An application for access to documents under Regulation No 1049/2001 was submitted to ECHA concerning a document containing information from eight notifications for the export of chemicals submitted in accordance with Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 2012 concerning the export and import of hazardous chemicals (OJ 2012 L 201, p. 60).
4 By letter of 10 August 2023, ECHA invited the applicant, in accordance with Article 4(4) of Regulation No 1049/2001, to inform it of the elements the disclosure of which it opposed.
5 On 29 August 2023, the applicant informed ECHA that it objected to the disclosure of its name and address, on the ground that such disclosure would undermine its commercial interests since disclosure of its status as an exporter of the substances at issue would risk giving rise to a public outcry and accusations of producing and marketing products perceived as dangerous.
6 On 14 September 2023, by the contested decision, ECHA rejected the applicant’s request not to disclose the information at issue, stating that the name of the active substances constituted public information since it was displayed on the applicant’s website, and that the exception provided for in Article 4(2) of Regulation No 1049/2001 was not applicable.
7 On 28 September 2023, the applicant set out the grounds for its objection to the disclosure of the information at issue, claiming that harm to its commercial interests would lie in the fact that that disclosure had been requested by a news outlet well known for publishing articles which depict in a biased and unfavourable manner undertakings exporting chemicals banned in Europe and that the mention of the substances at issue on its website did not appear to be decisive. According to the applicant, its website is aimed at a niche audience, whereas news outlets have a much wider audience.
8 On 3 November 2023, ECHA refuted the applicant’s arguments and informed it that it would suspend the execution of its decision to disclose the information at issue pending the proceedings before the Court.
9 By application lodged at the Court Registry on 24 November 2023, the applicant brought an action for annulment of the contested decision.
10 By separate document lodged at the Court Registry on 15 February 2024, the applicant submitted the present application for interim measures, in which it claims, in essence, that the President of the General Court should:
– order the suspension of operation of the contested decision pending delivery of the decision in the main proceedings;
– grant any other interim measures as appropriate;
– order ECHA to pay the costs.
11 In its observations on the application for interim measures, lodged at the Court Registry on 5 March 2024, ECHA contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
General considerations
12 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
13 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are 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 measure applied for’.
14 The judge hearing an application for interim measures may order suspension of operation of an act and 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 harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
15 In the context of that overall examination, the judge hearing an application for interim measures 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 law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
16 Having regard to the material in the case 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 there being any need to first hear oral argument from the parties.
17 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
The condition of urgency
18 In order to determine whether the interim measures sought are urgent, it should be noted 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 EU judicature. To attain that objective, urgency must in general be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable harm (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
19 It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
20 In the present case, in order to demonstrate the serious and irreparable nature of the harm alleged, in the first place, the applicant claims that the implementation of the contested decision will cause it serious and irreparable reputational harm, which will in turn cause it serious and irreparable business and financial damage.
21 The applicant adds that, once disclosed, the information at issue will be used for the purpose of publishing a new untruthful and derogatory article on its activities, which will have an adverse effect on public opinion, particularly in this historic moment, in which populist parties and green activists have significant influence on public opinion.
22 According to the applicant, it is irrelevant that it complies with all environmental legislation and that it holds all the necessary authorisations. The sole fact that it manufactures chemical substances is enough to stigmatise its activities and condemn it.
23 That was the case when an article was published in 2020 (‘the earlier article’), which encouraged the Italian Green Party to put two parliamentary questions at regional and national level. In addition, that article gave rise to unjustified concerns and exacerbated mistrust against the applicant on the part of the citizens living in the area where its plant is located.
24 In the second place, the applicant claims that the financial damage linked to the disclosure of the information at issue will be serious and irreparable.
25 In that context, the applicant states that it has invested EUR 13 million in developing a sustainability business plan, which corresponds to more than 10% of its average annual turnover of EUR 95 million. In essence, that plan provides for the development of biological plant protection products and new formulations for chemical plant protection products and has the effect of reducing the use of chemical substances by farmers and growers, benefiting sustainability and, ultimately, human and animal health as well as the environment.
26 The applicant also states that, in addition to the EUR 13 million invested in the sustainability business plan, EUR 4 million in subsidies were granted by the Italian authorities.
27 According to the applicant, the publication of a new derogatory and untrue article may lead the Italian authorities to revoke the grant of the subsidies and will thus jeopardise the implementation of the sustainability business plan, which will have evident adverse repercussions on its revenues and on its overall commercial activity.
28 The disparaging description of the applicant’s business in such a publication will eventually result in a contraction of sales of traditional plant protection products as customers do not wish to purchase the products of an undertaking described as engaging in the ‘deadly business’ of exporting ‘outlaw pesticides’ to third countries, where they cause ‘thousands of poisonings every year’.
29 Lastly, the failure of the sustainability business plan could also result in reduced industrial production and, consequently, a contraction of the applicant’s workforce so far as concerns the 45 persons currently employed to implement that plan.
30 ECHA disputes the applicant’s arguments.
31 In that regard, in the first place, it is clear that the harm alleged by the applicant with regard to its reputation is hypothetical and that it is based on future and uncertain events.
32 According to settled case-law, while it does not have to be established with absolute certainty that the harm claimed is imminent, its occurrence must nevertheless be foreseeable with a sufficient degree of probability. Purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 7 December 2015, POA v Commission, T‑584/15 R, not published, EU:T:2015:946, paragraph 22 and the case-law cited).
33 In the present case, there is no certainty that the information at issue will actually be used to publish a derogatory and untrue article. Nor is it possible to anticipate with any degree of foreseeable probability the consequences of such publication for the applicant.
34 Moreover, the information at issue merely identifies the applicant as a company which planned to export in 2022, to certain third countries, two active substances which are not approved in the European Union.
35 That factual information cannot be regarded as confidential since the name of the active substances in question is already public knowledge in so far as it appears on the applicant’s website.
36 Consequently, it is unlikely that the information at issue could affect the applicant’s reputation.
37 In addition, it does not appear that the publication of the earlier article had an appreciable impact on the applicant’s reputation. First of all, that publication did not prevent the applicant from securing a significant financial investment from the Italian authorities in the form of subsidies. Next, the parliamentary questions referred to by the applicant in the application for interim measures appear to be entirely legitimate and usual questions in so far as they concern the operation of a chemical plant. Similarly, the fact that citizens are sensitive to the impact of the establishment of a plant in their region is not abnormal either. Moreover, there is no proven link between such a citizens’ initiative and the earlier article, which focuses on the export activity of the operators concerned.
38 In the second place, as regards the alleged commercial and financial damage to which the applicant refers, it is settled case-law that damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable or even as difficult to repair, since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage. Contrary to what the applicant claims, any such damage could, in particular, be remedied by the applicant bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see orders of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 48 and the case-law cited, and of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 33 and the case-law cited).
39 However, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the party requesting them would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited).
40 In addition, it must be pointed out that, according to settled case-law, harm of a financial nature may in particular be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (see order of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 49 and the case-law cited).
41 In the present case, the applicant states, first of all, that the publication of a new derogatory and untrue article may lead the Italian authorities to revoke the grant of the subsidies.
42 In this respect, it is not plausible that the Italian authorities will revoke the subsidies granted. When those subsidies were granted, the Italian authorities were aware of the publication of the earlier article, as well as of the export of the active substances by the applicant. Therefore, it seems unlikely that a new publication, which is still hypothetical, could influence the grant of subsidies.
43 Next, the applicant claims that the publication of a new derogatory and untrue article will jeopardise the implementation of the sustainability business plan.
44 Like any plan, the sustainability business plan concerns only future and uncertain events and cannot therefore support the claim of serious and irreparable financial damage.
45 Finally, as regards the alleged contraction of sales of traditional plant protection products, it must be acknowledged that such a claim is also hypothetical since it is based on future and uncertain events. Furthermore, given that the applicant’s customers are professionals who are familiar with the applicable regulatory framework, it seems unlikely that a derogatory publication would be likely to influence their commercial decisions adversely.
46 It follows from all of the foregoing that the application for interim measures must be dismissed since the applicant has failed to prove that the condition relating to urgency is satisfied, without it being necessary to rule on whether there is a prima facie case or to carry out a weighing of interests.
47 Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 27 March 2024.
V. Di Bucci | | M. van der Woude |