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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

2 April 2019 (*)

(Application for interim measures — Competition — Settlement procedure — Access to documents — No urgency)

In Case T‑79/19 R,

Lantmännen ek för, established in Stockholm (Sweden),

Lantmännen Agroetanol AB, established in Norrköping (Sweden),

represented by S. Perván Lindeborg, A. Johansson, lawyers, and R. Bachour, Solicitor,

applicants,

v

European Commission, represented by F. Jimeno Fernández, G. Conte and C. Urraca Caviedes, acting as Agents,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking the suspension of the operation of the decision of the European Commission C(2019) 743 final of 28 January 2019 on an objection to disclosure submitted by Lantmännen ek för and Lantmännen Agroetanol AB pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the functioning and terms of reference of the hearing officer in certain competition proceedings (Case AT.40054 — Ethanol Benchmarks),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute, procedure and forms of order sought by the parties

1        The first applicant, Lantmännen ek för, is a company based in Stockholm, Sweden. The second applicant, Lantmännen Agroetanol AB, is the subsidiary of the first applicant and is also based in Sweden (together, ‘the applicants’).

2        On 7 December 2015, the Commission initiated proceedings in Case AT.40054 — Ethanol Benchmarks against the applicants and two other groups of companies.

3        On 27 April 2016, the Commission invited the applicants to consider proceeding via the settlement procedure.

4        On 21 June 2016, a first settlement meeting took place, during which the Commission invited the applicants to submit written comments on the Commission’s case overview (referred to as ‘non-papers’).

5        On 31 August 2016, the applicants submitted their first non-paper.

6        On 3 October 2016, the applicants submitted their second non-paper.

7        On 18 December 2016, the applicants submitted their third non-paper (together, ‘the non-papers’).

8        On 28 February 2018, the Commission informed the applicants that the other two groups of companies under investigation had abandoned the settlement procedure. The applicants decided to continue the settlement procedure.

9        On 16 July 2018, the applicants submitted their settlement submission.

10      On 24 July 2018, the Commission adopted a statement of objections addressed to the two other groups of companies which had finally abandoned the settlement procedure. Those companies received access to the Commission’s case file, including to the applicants’ settlement submission in the manner provided for in point 35 of the Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1) (‘the settlement notice’).

11      On 14 September 2018, one of the groups of companies made a further request to the Commission to access the documents exchanged between the Commission and the applicants in the course of the settlement procedure until the settlement submission (‘the settlement documents’).

12      On 21 September 2018, the Commission rejected that request.

13      On 25 September 2018, the matter was referred to the Hearing Officer.

14      On 9 November 2018, the Commission informed the applicants that the Hearing Officer intended to approve the disclosure of the settlement documents and requested that they provide non-confidential versions of the documents in question.

15      On 20 November 2018, the applicants provided non-confidential versions of some of the settlement documents, but refused to consent to the disclosure of the non-papers and of the documents constituting the minutes of the meetings or calls of 26 May, 21 June, 9 September 2016 and 7 March 2018 (‘the minutes’).

16      On 22 November 2018, the Commission repeated its request that the applicants should provide non-confidential versions of the non-papers and of the minutes.

17      On 30 November 2018, the applicants provided non-confidential versions of the non-papers (‘the redacted non-papers’), however they did not provide non-confidential versions of the minutes.

18      On 5 December 2018, the applicants referred their objections to the disclosure of the redacted non-papers and the minutes to the Hearing Officer.

19      On 28 January 2019, on behalf of the European Commission, the Hearing Officer took Decision C(2019) 743 final on an objection to disclosure submitted by Lantmännen ek för and Lantmännen Agroetanol AB pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the functioning and terms of reference of the hearing officer in certain competition proceedings (Case AT.40054 — Ethanol Benchmarks; ‘the contested decision’).

20      According to the contested decision, the Commission was entitled to proceed with the planned restricted disclosure, in application of point 35 of the settlement notice, of the redacted non-papers and of the minutes.

21      By application lodged with the Registry of the General Court on 12 February 2019, the applicant sought the annulment of the contested decision.

22      By separate document lodged with the Court Registry on the same day, the applicants made an application for interim measures, pursuant to Articles 278 and 279 TFEU, in which they claim, in essence, that the President of the General Court should:

–        suspend the operation of the contested decision;

–        order the Commission to pay the costs.

23      On 14 February 2019, upon that application and without hearing the Commission, the President of the General Court adopted an order on the basis of Article 157(2) of the Rules of Procedure of the General Court by which he ordered the Commission to suspend the operation of the contested decision.

24      In its observations on the application for interim measures, lodged at the Court Registry on 5 March 2019, the Commission contends that the President of the Court should:

–        reject the application for interim measures;

–        order the applicants to pay the costs.

25      On 22 February 2019, Alcogroup SA and Alcodis SA and, on 19 March 2019, Abongoa SA made an application for leave to intervene in support of the form of orders sought by the Commission.

 Law

26      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).

27      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’.

28      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).

29      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).

30      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’.

31      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).

32      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 Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).

33      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, generally, that assessment, relating to the question of 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).

34      In fact, 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).

35      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).

36      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).

37      In the present case, however, the applicants have not alleged, in order to establish their prima facie case, that the redacted non-papers and the minutes contain business secrets or that these documents reveal information that, by its very nature, is confidential.

38      Instead, the applicants argue that the documents should not be disclosed on grounds that are entirely unrelated to the content of the documents.

39      In those circumstances, the assessment as to whether there is a risk of serious and irreparable harm to the interests of the party seeking interim relief does not overlap with the assessment of whether there is a prima facie case as to the confidential nature of the information.

40      Consequently, in the present case, it must be held that, without it being necessary to examine whether the condition of a prima facie case is met, the judge hearing the application for interim measures is not required, when examining the condition of urgency, to start from the premiss that the information is confidential.

41      In any event, even if the assessment had to start from the premiss that the documents in question contain business secrets or are otherwise confidential, the present application for interim relief cannot succeed as the applicants manifestly fail to demonstrate the condition of urgency.

42      In that respect it must be noted that it is true that the disclosure of the documents in question is irreversible, in so far as the annulment of the contested decision cannot reverse the effects of their disclosure, since knowledge of that information is acquired immediately and irreversibly by those who read it (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 35).

43      However, in order to satisfy the conditions for granting interim measures and, in particular, the condition relating to urgency, the irreversible nature of the disclosure of such information must also be likely to cause serious and irreparable damage to the applicants (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 36).

44      In the present case, the applicants state that they would suffer serious and irreparable harm. In essence, the applicants fear that the person to whom the documents will be disclosed could misuse the information contained therein against them and could even spread that information to third parties, increasing further the potential damage for the applicants.

45      However, the applicants fail to substantiate that claim and do not adduce any supporting evidence.

46      In the first place, the applicants, whilst pleading that the disclosure of the documents in question would cause serious and irreparable harm, do not take into account that their settlement submission has already been disclosed in the manner provided for in point 35 of the settlement notice, as recalled in paragraph 10 above.

47      According to settled case-law, when suspension of the operation of a European Union act is sought, the grant of the interim measures requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable harm (see order of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 41 and the case-law cited).

48      In this case, the applicants, by not identifying any new elements of information that would be revealed through the disclosure of the documents in question compared with the information that was already disclosed in the settlement submission, make it impossible to verify whether disclosure of the documents in question would constitute the decisive cause of the alleged serious and irreparable harm.

49      In the second place, the applicants have not identified any specific information contained in the documents in question the disclosure of which could potentially harm their interests. Instead, the applicants seem to refer broadly, and without any distinction, to the settlement documents. In particular, it appears that the applicants have not taken into account in their plea the fact that the confidential version of the non-papers will not be disclosed; it is only the disclosure of the redacted non-papers and of the minutes that is at issue.

50      In the third place, the applicants have not produced the documents in question, making it impossible for the judge hearing the application for interim measures to verify the accuracy of the applicants’ contentions.

51      As regards the redacted non-papers, it must be noted that the Commission had invited the applicants to produce non-confidential versions of the non-papers, which they eventually did. Accordingly, the implication of the applicants’ contentions is that those documents, notwithstanding that they were redacted by them, still contain information which might be harmful to their interests.

52      In the absence of any explanation by the applicants, it is impossible for the judge hearing the application for interim measures to assess whether and to what extent the non-papers, as redacted by the applicants, might still contain information the disclosure of which could harm their interests and, if so, whether this is not due to their negligence when redacting the non-papers.

53      Finally, and most importantly, although they have produced the non-papers, the applicants have not produced the redacted non-papers and the minutes, thereby making it impossible for the President of the General Court to verify the applicants’ contentions.

54      It follows from all of the foregoing that the application for interim measures must be dismissed for lack of urgency, without there being any need to examine the condition relating to a prima facie case or the balance of interests or to adjudicate on the applications by, on the one hand, Alcogroup SA and Alcodis SA and, on the other, by Abengoa SA for leave to intervene in support of the Commission.

55      Since the present order terminates the proceedings for interim measures, it is necessary to cancel the order of 14 February 2019, Lantmännen and Lantmännen Agroetanol v Commission (T‑79/19 R) adopted on the basis of Article 157(2) of the Rules of Procedure, under which the Commission had been ordered to suspend the operation of the contested decision.

56      Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The order of 14 February 2019, Lantmännen and Lantmännen Agroetanol v Commission (T‑79/19 R), is cancelled.

3.      The costs are reserved.

Luxembourg, 2 April 2019.

*      Language of the case: English.

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