Case C‑517/15 P(R)

AGC Glass Europe SA and Others

v

European Commission

(Application for interim measures — Appeal — Suspension of operation of a judgment of the General Court of the European Union — Request for confidential treatment of certain information contained in a decision of the European Commission finding an unlawful cartel on the European market for glass for use in motor vehicles — Rejection decision by the Commission and judgment of the General Court dismissing the action for annulment of that decision — Urgency — Serious and irreparable damage — None)

Summary — Order of the Vice-President of the Court, 14 January 2016

1.        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

(Arts 278 TFEU and 279 TFEU; Statute of the Court of Justice, Art. 60, first para.; Rules of Procedure of the Court of Justice, Art. 160(3))

2.        Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Harm arising from the publication of information not covered by professional secrecy — Burden of proof of the irreparable nature of the harm despite the irreversible nature of the disclosure of the information — Infringement of the principles of protection of legitimate expectations and of equal treatment — No effect on the irreparable nature of the harm

(Arts 278 TFEU, 279 TFEU and 339 TFEU; Statute of the Court of Justice, Art. 60, first para.; Rules of Procedure of the Court of Justice, Art. 160(3))

3.        Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Damage caused by the publication of information in the course of competition proceedings — Decisive cause of the damage arising from infringement of competition law and not from disclosure of information that may be used as evidence in an action for damages against the person responsible for the infringement — Interim relief not justified by interest of person responsible in non-disclosure

(Art. 15 TEU; Arts 101(1) TFEU, 278 TFEU and 279 TFEU; Council Regulation No 1/2003, Art. 30; Directive 2014/104/EU of the European Parliament and of the Council, Article 5(5); Statute of the Court of Justice, Art. 60, first para.; Rules of Procedure of the Court of Justice, Art. 160(3))

4.        Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Irreparable nature of the damage — Damage that cannot be quantified — Assessment solely on the basis of the uncertainty of obtaining compensation for pecuniary damage if an action for damages is brought — Not permissible

(Arts 279 TFEU, 278 TFEU, 279 TFEU, 339 TFEU and 340 TFEU)

1.        See the text of the decision.

(see paras 20, 21)

2.        When assessing the urgency of an interim measure, the fact that the publication of information concerning customer names and descriptions of the products of undertakings pursued for infringement of EU competition law could infringe the principles of protection of legitimate expectations and of equal treatment cannot suffice, as such, to find that that information must be regarded as being covered by the obligation of professional secrecy and that, as a consequence, its disclosure would cause serious and irreparable damage to those undertakings. Such a fact, if established, would at most constitute the basis for requiring the Commission not to disclose such information.

While it is true that the publication of information is irreversible, however, in order to satisfy the conditions for granting interim measures and, in particular, the condition regarding urgency, the irreversible nature of the disclosure of such information must be likely to cause serious and irreparable damage to the applicants.

In that regard, whereas, in order to establish the existence of such damage it is not necessary for the occurrence of that damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the applicant is still required to prove the facts forming the basis of its claim that such serious and irreparable damage is likely.

Furthermore, whereas the disclosure of business secrets is, indeed, likely to cause damage consisting in the fact that, once the confidential information has been published, any subsequent annulment of the contested decision would not reverse the effects of the publication of that information, the same cannot be said regarding the disclosure of information that cannot be considered to be covered by professional secrecy. This is the case for information that is held not to constitute business secrets in a part of the judgment of the General Court that was not the subject of the appeal brought against that judgment. The part of the judgment concerning the information in question must be considered as definitive.

(see paras 33-38, 40-42)

3.        When suspension of the operation of an EU measure is sought, the grant of the interim measure requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable harm.

In the case of harm caused by an undertaking resulting from its infringement of EU competition rules, the prosecution of which involved the disclosure by the Commission of certain information concerning customer names and descriptions of the products in question, the decisive cause of the harm caused to third parties and for which compensation is sought in actions for damages lies, not in the disclosure of the information in question by the Commission, but in the infringement of competition law committed by the undertaking concerned. While that information is likely to facilitate the production of such evidence by claimants for damages against the undertaking concerned, in so far as that information provides those claimants with evidence that would not otherwise be available to them, such a fact would not, however, prohibit the Commission from disclosing information on the sole ground that it could constitute such evidence and, therefore, harm the position of the undertaking concerned. That would be tantamount to requiring the Commission to keep information confidential for the sole purpose of protecting, for the addressees of a decision finding an infringement of EU competition rules, their interest in rendering the evidence in question inaccessible to persons seeking compensation.

While recognising the importance of that interest, particularly in so far as it falls within the rights of the defence in that type of action, the fact remains that, first, no rule of EU law requires the Commission to protect such an interest by obliging it to protect the confidentiality of information, such as the information in question, contrary to the obligation of transparency imposed on it by Article 15 TEU and, more specifically in the present case, by Article 30 of Regulation No 1/2003. Secondly, Article 5(5) of Directive 2014/104 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union expressly provides that the undertaking’s interest in avoiding actions for damages following an infringement of competition law is not an interest that warrants protection.

(see paras 45-50)

4.        See the text of the decision.

(see paras 53, 54, 56)