Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE VICE-PRESIDENT OF THE COURT

7 March 2019 (*)

(Interlocutory proceedings — Appeal — Articles 278 and 279 TFEU — Application for suspension of operation — Application for interim measures — Article 160(7) of the Rules of Procedure of the Court — Publication of documents concerning the marketing authorisation procedure for plant protection products — Application for confidential treatment — Rejection)

In Case C‑163/19 P(R)-R,

APPLICATION for suspension of operation and other interim measures under Articles 278 and 279 TFEU, brought on 25 February 2019,

Trifolio-M GmbH, established in Lahnau (Germany),

Oxon Italia SpA, established in Milan (Italy),

Mitsui AgriScience International SA, established in Woluwe-Saint-Pierre (Belgium),

represented by C. Mereu and S. Englebert, avocats,

appellants,

the other party to the proceedings being:

European Food Safety Authority (EFSA),

defendant at first instance

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By application lodged at the Court Registry on 22 February 2019, Trifolio-M GmbH, Oxon Italia SpA and Mitsui AgriScience International SA sought the setting aside of the order of the President of the General Court of the European Union of 5 February 2019, Trifolio-M and Others v EFSA (T‑675/18 R, not published, ‘the order under appeal’, EU:T:2019:64), by which the General Court, first, dismissed their application for suspension of operation of Decision EFSA/LA/DEC/19777743/2018 of the Executive Director of the European Food Safety Authority (EFSA) of 11 September 2018 concerning an application for confidential treatment of the EFSA peer review of the risk assessment of the active substance azadirachtin (‘the contested decision’), and, secondly, annulled its order of 20 November 2018, Trifolio-M and Others v EFSA (T‑675/18 R).

2        By separate document lodged at the Court Registry on 25 February 2019, the appellants, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Court’s Rules of Procedure, brought the present application for interim measures, in which they claim that the Court should:

–        suspend the operation of the order under appeal;

–        suspend the implementation of the contested decision;

–        reinstate the order of the President of the General Court of 20 November 2018, Trifolio-M and Others v EFSA (T‑675/18 R);

–        grant any other interim relief considered necessary; and

–        order EFSA to pay the costs.

3        In accordance with Article 160(7) of the Rules of Procedure, the judge hearing an application for interim measures may grant that application even before the observations of the opposite party have been submitted. That decision may be varied or cancelled even without any application being made by any party.

4        According to the Court’s case-law, in particular where it is desirable in the interests of the proper administration of justice that the interlocutory proceedings are not deprived of their substance and effect, Article 160(7) of the Rules of Procedure permits the judge hearing an application for interim measures to adopt such measures, as a precautionary measure, until either an order has been made terminating those interlocutory proceedings or until the main proceedings are terminated, if this should take place first (orders of the Vice-President of the Court of 11 March 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R)-R, not published, EU:C:2016:164, paragraph 4, and of the Vice-President of the Court of 16 January 2019, JPMorgan Chase and Others v Commission, C‑1/19 P(R)-R, not published, EU:C:2019:41, paragraph 4).

5        When assessing the need for such an order, the judge hearing the application for interim measures must examine the circumstances of the specific case at hand (orders of the Vice-President of the Court of 11 March 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R)-R, not published, EU:C:2016:164, paragraph 5, and of the Vice-President of the Court of 16 January 2019, JPMorgan Chase and Others v Commission, C‑1/19 P(R)-R, not published, EU:C:2019:41, paragraph 5).

6        In the present case, the contested decision, the operation of which was not suspended by the order under appeal, in essence, allows EFSA to publish documents in respect of which the appellants had requested confidential treatment. The appellants request that EFSA be ordered to suspend publication of those documents and to withdraw them immediately from its website. It is apparent from the documents on the file submitted to the Court that on 25 February 2019 EFSA published the documents on its website and stated that they would be kept online until the Court adopts an order suspending operation of the order under appeal.

7        In those circumstances, in order to ensure that the interlocutory proceedings are not deprived of any substance and effect, the Vice-President of the Court considers, even before the other party has submitted its observations, that it is in the interests of the proper administration of justice to order that the operation of the contested decision be suspended and that EFSA be ordered to refrain from publishing the peer review referred to in paragraph 1 of the present order and to immediately remove that review from its website, until the adoption of an order bringing an end to the present interlocutory proceedings or ruling on the appeal in Case C‑163/19 P(R), whichever is the earlier. In the light of the foregoing considerations, there is no need to suspend the operation of the order under appeal.

On those grounds, the Vice-President of the Court hereby orders that:

–        The operation of Decision EFSA/LA/DEC/19777743/2018 of the Executive Director of the European Food Safety Authority (EFSA) of 11 September 2018 concerning a request for confidential treatment of the EFSA peer review of the risk assessment of the active substance azadirachtin is suspended, and

–        EFSA shall refrain from publishing the peer review referred to in paragraph 1 and remove it with immediate effect from its website,

until the adoption of an order bringing an end to the present interlocutory proceedings or an order ruling on the appeal in Case C‑163/19 P(R), whichever is the earlier.

2.      The costs are reserved.

Luxembourg, 7 March 2019.

*      Language of the case: English.

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