ORDER OF THE PRESIDENT OF THE GENERAL COURT
25 October 2018 (*)
(Application for interim measures — Competition — Euro Interbank Offered Rates (Euribor) — Euro Interest Rate Derivatives (EIRD) — Rejection of the request for confidential treatment of a decision establishing an infringement of Article 101 TFEU — Principle of the presumption of innocence — Application for interim measures — No prima facie case)
In Case T-420/18 R,
JPMorgan Chase & Co., established in New York, New York (United States),
JPMorgan Chase Bank, National Association, established in Columbus, Ohio (United States),
J.P. Morgan Services LLP, established in London (United Kingdom),
represented by M. Lester QC, D. Piccinin, D. Heaton, Barristers, B. Tormey, N. French, N. Frey and D. Das, Solicitors,
applicants,
v
European Commission, represented by M. Farley, B. Mongin and F. van Schaik, acting as Agents,
defendant,
Application pursuant to Articles 278 and 279 TFEU seeking, first, a stay on the operation of Commission Decision C(2018) 2745 final of 27 April 2018, on objections to the disclosure of information by their publication raised by JPMorgan Chase & Co., JPMorgan Chase Bank, National Association and J.P. Morgan Services, in accordance with Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)), and, second, an order requiring the Commission to refrain from publishing Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1 On 7 December 2016, the European Commission adopted Decision C(2016) 8530 final relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)) (‘the EIRD decision’).
2 In Article 1 of the EIRD decision it is stated that, during the period from 27 September 2006 to 19 March 2007, the applicants — JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP — infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a single and continuous infringement concerning Euro Interest Rate Derivatives.
3 In accordance with Article 2 of the EIRD decision, a fine was imposed on the applicants.
4 By application lodged at the Court Registry on 17 February 2017, the applicants brought, in essence, an action for annulment of the EIRD decision in so far as it is applicable to them. The action was registered as Case T‑106/17.
5 Since then, discussions on the publication of the EIRD decision have taken place between the applicants and the Commission.
6 On 27 April 2018, the hearing officer adopted, on behalf of the Commission, Decision C(2018) 2745 final on objections to the disclosure of information by publication submitted by the applicants, pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)) (‘the contested decision’).
7 According to Article 1 of the contested decision, the complaints relating to the publication of the EIRD decision are rejected, with the exception of those which have become obsolete because the Directorate-General (DG) for Competition decided to redact certain passages.
8 According to Article 2 of the contested decision, the information in respect of which the complaints are rejected will not be published before the expiry of the period for bringing proceedings.
9 By application lodged at the Court Registry on 10 July 2018, the applicants sought, in essence, annulment of the contested decision.
10 By a separate document, lodged at the Court Registry on the same date, the applicants brought an application for interim measures, pursuant to Articles 278 and 279 TFEU, in which they claim, essentially, that the President of the General Court should:
– suspend the operation of the contested decision until the Court has ruled on the action brought in Case T‑106/17 or, alternatively, on the action to which the present application for interim measures relates;
– order the Commission to refrain from publishing the EIRD decision until the Court has ruled on the action brought in Case T‑106/17 or, alternatively, on the action to which the present application for interim measures relates;
– order the Commission to pay the costs.
11 Following the request of the applicants, the President of the General Court adopted, on 11 July 2018, without first hearing the Commission, an order on the basis of Article 157(2) of the Rules of Procedure of the General Court by which he ordered the Commission, in particular, to suspend the operation of the contested decision.
12 In its observations on the application for interim measures, lodged at the Registry of the Court on 23 July 2018, the Commission contends that the President of the Court should:
– reject the application for interim measures;
– reserve the costs.
Law
General
13 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 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, pursuant to Article 156 of the Rules of Procedure. 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 Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
14 The first sentence of Article 156(4) of the Rules of Procedure 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’.
15 Thus, the judge hearing an application for interim relief 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 relief is also required 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).
16 In the context of that overall examination, the judge hearing the application for interim measures has a wide discretion and remains free to determine, having regard to the specific 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).
17 In addition, according to the second sentence of Article 156(4) of the Rules of Procedure, applications for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
18 Thus, an application for interim measures must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, as necessary, without any other supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
19 Lastly, although the application for interim measures can be supplemented, on specific points, by references to documents annexed thereto, those documents cannot compensate for a failure to set out the essential elements in that application. It is not the task of the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes to the application for interim measures, in the main application or in the annexes to the latter which might support the application for interim measures. Imposing such an obligation on the judge hearing the application for interim measures would, moreover, render redundant Article 156(5) of the Rules of Procedure, which provides that the application for interim measures must be made by a separate document (see order of 20 June 2014, Wilders v Parliament and Others, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).
20 As regards the examination of whether it is urgent to grant interim measures in order to prevent the disclosure of allegedly confidential information, it should be noted that that assessment, relating to the question whether there is a risk of serious and irreparable harm to the interests of the party seeking interim relief, overlaps to some extent with the assessment of the existence of a prima facie case linked to the confidential nature of the information, as claimed by the party seeking those measures (orders of 12 June 2018, Nexans France and Nexans v Commission, C‑65/18 P(R), EU:C:2018:426, paragraph 15, and of 23 November 2017, Nexans France and Nexans v Commission, T‑423/17 R, not published, EU:T:2017:835, paragraph 46).
21 According to the case-law, the examination as to whether information comes within the ambit of professional secrecy generally comprises three stages, namely, first, that the information must be known only to a limited number of persons; second, that its disclosure must be likely to cause serious harm to the person who provided it or to third parties; and, third, and last, that the interests liable to be harmed by disclosure must, objectively, be worthy of protection (see, to that effect, judgment of 28 January 2015, Evonik Degussa v Commission, T‑341/12, EU:T:2015:51, paragraph 94 and the case-law cited).
22 Consequently, it is only when, first, the applicant for interim measures alleges that the information whose publication he wishes provisionally to prevent constitutes business secrets or is covered by professional secrecy and, second, that allegation satisfies the condition that there is a prima facie case, that the judge hearing an application for interim measures is in principle required, when examining the condition of urgency, to start from the premiss that the information constitutes business secrets or is covered by professional secrecy (order of 12 June 2018, Nexans France and Nexans v Commission, C‑65/18 P(R), EU:C:2018:426, paragraph 21).
23 It is therefore not sufficient, for the purposes of being granted interim measures, to have claimed that the information which is to be disclosed is confidential if such a claim does not satisfy the condition relating to a prima facie case (order of 12 June 2018, Nexans France and Nexans v Commission, C‑65/18 P(R), EU:C:2018:426, paragraph 22).
24 In those circumstances, it is necessary to examine first of all whether the condition relating to a prima facie case is satisfied.
25 Having regard to the material in the case file, the President of the General Court considers that he has all the information necessary to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
The condition relating to a prima facie case
26 As regards the condition relating to the existence of a prima facie case, it should be recalled that that condition 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, at first sight, to be not unfounded. This is the case where one of the pleas relied on reveals the existence of major legal or factual disagreement 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 (see, to that effect, orders of 3 December 2014, Greece v Commission, C‑431/14 P‑R, EU:C:2014:2418, paragraph 20 and the case-law cited, and of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 59 and the case-law cited).
27 As regards disputes concerning interim protection for information alleged to be confidential, it is apparent from one line of case-law that the judge hearing the application for interim measures — if he is not to disregard the intrinsically ancillary and provisional nature of proceedings for interim measures — may, as a rule, conclude that there is no prima facie case only in the case where the information in question is obviously not confidential (see order of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 60 and the case-law cited).
28 However, it is apparent from another line of case-law that the conditions, as indicated in paragraph 26 above, continue to apply regardless of whether the case relates to the interim protection for information alleged to be confidential (see, to that effect, order of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraphs 68 and 69).
29 In that respect, it is important to indicate the extent of confidential treatment which, according to the applicants, should apply in this case. They submit that any publication of the EIRD decision should be postponed until the Court has ruled on their action for annulment of that decision in Case T‑106/17, or alternatively, until the Court has ruled on their action against the contested decision.
30 In the present case, however, it is not necessary to resolve the question of which line of case-law should be followed as regards, generally, the publication of allegedly confidential information contained in a Commission decision concerning a procedure relating to Article 101 TFEU or as regards, in particular, a request to postpone any publication of such a decision until its lawfulness has been examined by the EU Courts.
31 In the present case, and without prejudice to the examination of the action in the main proceedings, it is clear that the applicants have failed to demonstrate a sufficient prima facie case to justify the granting of the interim measures sought by claiming that the information to be disclosed was confidential.
32 As a preliminary point, it is appropriate to recall the principles governing the publication of decisions establishing an infringement of Article 101 TFEU.
33 As is apparent from Article 28(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] and [102 TFEU] (OJ 2003 L 1, p. 1), the Commission is required not to disclose information ‘of the kind’ covered by the obligation of professional secrecy.
34 Furthermore, it follows from Article 30 of Regulation No 1/2003 that the Commission is required to publish the decisions which it takes pursuant to, inter alia, Articles 7 and 23 of that regulation and that the publication must state the names of the parties and the main content of the decision, including any penalties imposed, and must have regard to the legitimate interest of undertakings in the protection of their business secrets.
35 In accordance with the case-law, the interest of an undertaking which the Commission has fined for an infringement of competition law in non-disclosure to the public of the details of the offending conduct of which it is accused does not, in principle, warrant any particular protection, given the public interest in knowing as fully as possible the reasons behind any Commission action, the interest of the economic operators in knowing the sort of conduct for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and in view of the fact that the undertaking which has been fined may seek judicial review of such a decision (see judgment of 28 January 2015, Evonik Degussa v Commission, T‑341/12, EU:T:2015:51, paragraph 107 and the case-law cited).
36 Moreover, it is legitimate for the Commission, in a decision finding an infringement and imposing a penalty, to describe the factual and historical context of the conduct at issue. The same is true for the publication of that description, given that such publication may be of use in allowing persons interested to understand fully the reasoning behind such a decision. In that respect, it is for the Commission to judge whether the inclusion of such matters is appropriate (judgment of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 89).
37 While the Commission is therefore subject to a general obligation to publish only non-confidential versions of its decisions, it is not necessary to interpret Article 30(2) of Regulation No 1/2003 as conferring a specific right on addressees of decisions adopted under Articles 7 to 10, 23 and 24 of Regulation No 1/2003 allowing them to prevent publication by the Commission of information which, although not confidential, is not part of the ‘main content’ essential for understanding the operative part of those decisions (see, by analogy, judgment of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 77).
38 Furthermore, it follows from the case-law that Article 30 of Regulation No 1/2003 reflects considerations concerning the effectiveness of the application of EU competition law in so far as, in particular, such publication enables victims of infringements of Article 101 TFEU to be provided with support during their actions for damages against those who have committed those infringements. Those different interests must, however, be weighed against the protection of rights conferred by EU law, in particular, on the undertakings concerned, such as the right to protection of professional secrecy or business confidentiality, or on the individuals concerned, such as the right to the protection of personal data (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 78).
39 Without generally calling into question the case-law referred to in paragraphs 35 to 38 above, the applicants maintain, in the context of their first plea, that that case-law is not applicable in this instance, in the light of the particular circumstances relating to the present case, which implies that any publication of the EIRD decision should be postponed until the Court has given a ruling in Case T‑106/17. At the very least, the publication of the EIRD decision should be postponed until the Court has adjudicated on their action challenging the contested decision.
40 In that regard, the applicants submit that the Commission breached the principle of the presumption of innocence in rejecting their request for a postponement of the publication of the EIRD decision until the Court has ruled on their action challenging that decision.
41 In essence, the applicants maintain that it follows from paragraphs 266 to 269 of the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), that the Commission breached the principle of the presumption of innocence. In the same manner as in the case which gave rise to that judgment, the Commission, in the present case, first of all adopted a settlement decision and then the EIRD decision. Consequently, the applicants submit that the EIRD decision is vitiated by a breach of the principle of the presumption of innocence and, in order to avoid a consecutive breach of that principle, the publication of that decision should be postponed until its lawfulness is examined by the Court.
42 In that regard, it should be noted, first, that the applicants’ reasoning appears to be based on the premiss that the EIRD decision is unlawful because of a breach of the principle of the presumption of innocence.
43 However, generally, such a premiss cannot be accepted in the procedural context of the current dispute (see, to that effect and by analogy, order of 23 November 2017, Nexans France and Nexans v Commission, T‑423/17 R, not published, EU:T:2017:835, paragraphs 71 to 78).
44 First, it must be recalled that, according to the wording of Article 156(1) of the Rules of Procedure, ‘an application to suspend the operation of any measure adopted by an institution … shall be admissible only if the applicant has challenged that measure in an action before the General Court’.
45 Since the action to which the present application for interim proceedings relates concerns the annulment of the contested decision, it is not possible, in the context of the present interim proceedings, to order suspension of the operation of the EIRD decision.
46 Second, it is appropriate to recall that measures of the EU institutions are in principle presumed to be lawful and accordingly produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (see judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 52 and the case-law cited).
47 Since the applicants have not obtained, or even sought, suspension of the operation of the EIRD decision to which the presumption of legality applies, the President of the Court is, in principle, bound by that presumption in the present proceedings for interim measures. Even if the EIRD decision should be vitiated by irregularities, so long as it has not been declared to be unlawful, all persons subject to EU law are bound by the obligation to acknowledge that it is fully effective (see, by analogy, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 117).
48 By contrast, to allow the applicants to rely, for the purposes of the present interim proceedings which are attached to the application in Case T‑420/18, on the unlawfulness of the EIRD decision under appeal in Case T‑106/17, would mean that the judge hearing the application for interim measures must rule on the unlawfulness, prima facie, of the EIRD decision without, however, dealing with that case.
49 In the present case, the applicants do not submit that they are exposed to an overly formal approach in the interim proceedings, requiring them to increase the procedural documents (see, to that effect, order of 8 April 1965, Gutmann v Commission, 18/65 R, EU:C:1965:41, p. 137) or that the gravity of the unlawfulness which vitiates the EIRD decision is so obvious that it cannot be tolerated by the European Union’s legal order and must be treated as having no legal effect, even provisional, that is to say, that it must be regarded as legally non-existent (see, to that effect, judgment of 8 July 1999, Hüls v Commission, C‑199/92 P, EU:C:1999:358, paragraph 85).
50 In that latter respect, it should be noted, for the sake of completeness, that even the applicants’ claim concerning the simple unlawfulness of the EIRD decision by reason of a breach of the principle of the presumption of innocence does not appear, prima facie, to be well founded.
51 It should be stated that, prima facie, the Court did not, contrary to what the applicants claim, hold in paragraphs 266 to 269 of the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), that the Commission had breached the principle of the presumption of innocence by adopting a decision establishing an infringement of Article 101 TFEU. As is clear from paragraphs 269 and 270 of that judgment, the Court held that the settlement decision had been vitiated by a breach of the principle of the presumption of innocence and that that breach could not have a direct impact on the legality of the decision establishing the infringement of Article 101 TFEU, but that it was necessary to ascertain whether the latter was vitiated by a lack of objective impartiality on the part of the Commission and, accordingly, by a breach of the principle of sound administration.
52 The applicants’ starting point for this reasoning consequently appears, prima facie, to be unfounded.
53 Accordingly, the applicants cannot successfully argue that, generally, any publication of the EIRD decision should be suspended because of its alleged unlawfulness until its lawfulness has been reviewed by the EU Courts.
54 Second, the applicants rely, more specifically, on the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306).
55 It is true that the Court acknowledged, in paragraphs 74 to 80 of the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), that the publication of the Commission’s findings relating to an infringement committed by an undertaking could, in so far as that undertaking had no possibility of seeking judicial review of those findings, breach the principle of the presumption of innocence, which implies that those findings must, in principle, be regarded as confidential as regards the public.
56 However, the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), cannot in the present case form the basis for a derogation from the principle set out in paragraph 47 above, by accepting that the alleged unlawfulness of a Commission decision can be relied on in support of the form of order sought in an action in a case brought against a separate Commission decision.
57 It should be borne in mind that the special feature of the case which gave rise to the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), consists precisely in the fact that, first, the contested Commission decision established the applicant’s participation in the infringement while concluding that any challenge was time-barred and that, second, the applicant did not have standing to bring an action against the Commission’s decision, as it had been prevented in law from being able to challenge the Commission’s findings before the courts.
58 In the present case, however, the applicants brought an action before the Court seeking annulment of the EIRD decision in so far as it concerned them and do not claim that it is impossible for them to challenge the Commission’s findings concerning their allegedly unlawful conduct in the context of that action.
59 Thus, the position of the applicants, who unquestionably have an avenue of recourse against the EIRD decision, cannot, a priori, be equated to that in the case which gave rise to the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306).
60 Therefore, the applicants cannot, a priori, base their claim of confidentiality as regards the EIRD decision in its entirety on the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306).
61 Prima facie, therefore, the applicants’ first plea clearly cannot succeed.
62 By their second plea, the applicants claim that the hearing officer, acting on behalf of the Commission, exceeded his terms of reference by rejecting their request for confidentiality relating to footnote 269 to the EIRD decision. According to the applicants, the Commission had already granted such a request in its dealings with them prior to the adoption of the contested decision. Moreover, they argue that it was by unlawfully relying on the fact that footnote 269 should not be redacted further that their subsequent claims for confidentiality concerning recitals 162, 166, 184 and 206 of the EIRD decision and footnotes 184 and 435 to that decision were rejected.
63 In that regard, it is sufficient to observe that the starting point of the applicants’ reasoning is, at first sight, effectively unfounded in fact.
64 As is clear, prima facie, from the provisional non-confidential version of the EIRD decision sent to the applicants by letter of 4 May 2017, the Commission had redacted only certain elements of footnote 269. Furthermore, the applicants included that footnote in their subsequent application to the hearing officer to have it redacted further, from which it may be inferred that they themselves took the view that the Commission had not taken, in its dealings with them, the decision to redact the relevant part of that note.
65 Consequently, it cannot be held, prima facie, that the hearing officer called into question a prior Commission decision to redact footnote 269 to a greater extent. Therefore, the subsequent claim that the claims for confidentiality in relation to recitals 162, 166, 184 and 206 and to footnotes 184 and 435 to the EIRD decision were rejected due to the allegedly wrongful conduct of the hearing officer as regards footnote 269 to the EIRD decision cannot succeed.
66 At first sight, therefore, the second plea clearly cannot succeed.
67 By their third plea, the applicants claim that the contested decision is unlawful, inasmuch as several specific requests for confidentiality have been improperly rejected.
68 First, by referring to recital 111 of the EIRD decision, the applicants allege that that recital carries ‘a clear implication’ that [confidential (1)].
69 However, it must be noted that, on a first reading, no such statement is made in recital 111 of the EIRD decision. The view cannot be taken either that, prima facie, the statement of facts to which that recital is limited shows ‘a clear implication’ as regards [confidential].
70 Second, as regards recitals 162, 166, 184 and 206 and footnotes 184 and 435 to the EIRD decision, the applicants maintain that it is inconsistent not to redact these, while the Commission had taken the decision to redact footnote 269 to the EIRD decision. Moreover, they allege that publication of the information contained in those parts of the EIRD decision carries ‘a clear implication’ that [confidential].
71 In that regard, it must be recalled that it is apparent from paragraphs 64 and 65 above that, contrary to the applicants’ claims, the Commission had not decided to redact the relevant passage from footnote 269. Consequently, the applicants’ argument, in so far as it is based on that assumption, must in principle be rejected.
72 Furthermore, as regards the claim that recitals 162, 166, 184 and 206 and footnotes 184 and 435 of the EIRD decision carry ‘a clear implication’ that [confidential], it must be stressed that no claim of that kind appears in those recitals and footnotes. Nor can it be claimed, prima facie, that the statement of facts, to which those recitals and notes are limited, reveal ‘a clear indication’ as regards [confidential].
73 Third, as regards recitals 117, 146 and 147 of the EIRD decision, the applicants maintain that it is inconsistent not to redact them, when the Commission had taken the decision not to publish information of a similar nature in order to prevent the identity of one of their former employees from being revealed.
74 In so far as the applicants allege an inconsistent approach on the part of the Commission, it is sufficient to note that, a priori, a request for confidentiality must be assessed on its own merits. Thus, reasoning based exclusively on analogy cannot suffice to establish a prima facie case.
75 Furthermore, it is common knowledge that the person concerned was allegedly involved in the transactions which were penalised by the EIRD decision. Similarly, his professional background is well known. Consequently, it cannot be claimed, at first sight, that the refusal to redact certain parts of the EIRD decision could have any bearing on the possibility of identifying the individual in question.
76 Fourth, as regards recital 465 of the EIRD decision, the applicants argue that its publication would damage their reputation and that of the persons concerned.
77 To the extent to which damage to the applicants’ reputation is invoked, it should first of all be recalled that it was concluded in recital 465 of the EIRD decision, in the context of the review supporting the operative part of that decision, that, in the circumstances of the present case, it should be presumed that the [confidential] of the applicants was aware, or should have been aware, of the allegedly infringing conduct of their employees.
78 Next, it is well known that the applicants are presumed to have participated in an infringement of Article 101 TFEU, penalised by the EIRD decision, a fact which, in itself, is liable to cause damage to their reputation.
79 Thus, prima facie, it cannot be stated, and the applicants do not present any argument to that end, that the publication of recital 465 is liable to aggravate that damage or to cause damage to their distinct reputation.
80 Furthermore, it is apparent from the case-law mentioned in paragraph 35 above that the interest of an undertaking on which the Commission has imposed a fine for breach of competition law in non-disclosure to the public of the details of the alleged unlawful conduct of which it is accused does not, in principle, merit any particular protection, regard being had to the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing what conduct is likely to expose them to penalties, and the interest of persons harmed by the infringement in knowing the details in order to be able to assert, if necessary, their rights against the undertakings penalised, and taking into account the possibility for that undertaking to submit such a decision to judicial review. However, the applicants merely assert that publication of the EIRD decision would undermine their reputation, without providing any additional elements that allow for exceptions to the principle of disclosure of the information relating to the infringement found in the EIRD decision.
81 To the extent to which damage to the reputation of individuals is alleged, it should be recalled that recital 465 of the EIRD decision simply refers to the applicants’ [confidential], without identifying any individual and without even specifying the level of hierarchy concerned. Furthermore, the applicants, while claiming damage to the reputation of certain individuals, do not name those individuals who, according to the applicants, would suffer damage to their reputation, thus making the claim unverifiable in fact.
82 Consequently, it cannot, on the face of it, be concluded that the applicants have established a prima facie case regarding the alleged damage to their reputation or to the reputation of individuals.
83 Fifth, the applicants claim that recitals 695, 696 and 698 to 700 of the EIRD decision reveal information concerning their business structure, their internal organisation, their models used to evaluate market shares, their dealings with third parties and their accounting practices.
84 In the present case, the applicants do not dispute the fact that the information in question is more than five years old.
85 It follows, however, from the case-law that information which was secret or confidential, but which is at least five years old, must as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party pleading that nature shows that, despite its age, that information still constitutes essential elements of its commercial position or of that of interested third parties. Those considerations, which give rise to a rebuttable presumption, are valid both in the context of requests for confidential treatment in respect of parties intervening in actions before the EU Courts and in the context of requests for confidentiality with a view to the publication by the Commission of a decision finding an infringement of competition law (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).
86 However, according to the applicants, the information is ‘current’ or ‘indicative’ of their current commercial practice.
87 First, the applicants argue that the information has not, despite the passage of time, lost its confidential nature. However, they provide no argument to substantiate that claim. The mere fact that the information is ‘current’ or ‘indicative’ of their current activity is not sufficient. This is particularly true given that the alleged infringement relates to a period prior to the financial crisis which led to the introduction of substantial changes within the banking sector.
88 Second, the applicants claim that recitals 699 and 700 of the EIRD decision reveal information concerning ‘details about the internal metrics used and approaches [taken] in assessing market share (as at 2015, when [they] submitted [their] Response to the Statement of Objections)’. However, a simple reading of those recitals demonstrates that the applicants’ claims are not, a priori, supported in the wording.
89 For the reasons set out in paragraphs 68 to 88 above, it is, at first sight, clear that the third plea cannot succeed.
90 By their fourth plea, the applicants maintain that the contested decision is unlawful in so far as it rejects the requests for confidentiality relating to recitals 117, 146, 147 and 465 of the EIRD decision and thereby infringes the right of individuals to protection of their private life and reputation.
91 As regards that plea, suffice it to note that the applicants merely repeat, under a separate heading, arguments which have previously been rejected in the context of the third plea, as is clear from paragraphs 73 to 82 above.
92 Thus, prima facie, the fourth plea clearly cannot succeed.
93 Since the applicants have not raised against the contested decision complaints other than those connected with confidentiality examined in paragraphs 39 to 92 above, it follows from all of the foregoing that the application for interim measures must be dismissed because there is no prima facie case, without there being any need to examine the condition relating to urgency or the balance of interests or to deal with issues of admissibility relating to the applicants’ request that the Court order the Commission to refrain from publishing the EIRD decision until it has given a ruling on the action brought in Case T‑106/17.
94 Since the present order terminates the proceedings for interim measures, it is necessary to cancel the order of 11 July 2018, JPMorgan Chase and Others v Commission (T‑420/18 R), adopted on the basis of Article 157(2) of the Rules of Procedure, under which the Commission had been ordered, in particular, to suspend the operation of the contested decision.
95 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 order of 11 July 2018, JPMorgan Chase and Others v Commission (T‑420/18 R), is cancelled.
3. The costs are reserved.
Luxembourg, 25 October 2018.