Information;Order — ECLI:EU:C:2025:205
Date: 2025-03-21
Language of the case: English
Court formation: Vice-President
Subject matter: External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded;Application for interim measures
Origin: Belgium;Poland

summary of those pleas in law. The present appeal appears to be sufficiently clear and precise in itself to enable the Commission to prepare its observations and the judge hearing the application to rule on it. Consequently, that argument must be rejected. 21 In the second place, the Commission contends that the suspension request set out in point 2 of the form of order sought in the appeal is inadmissible or ineffective, on the ground that it does not refer to all the requests for access to the electronic correspondence at issue which were sent by the Commission and which were the subject of the action for annulment before the General Court. The Commission submits in particular that that suspension request does not relate to the requests for access to that correspondence which it sent on 23 and 24 April 2024, respectively, to InsTech Netherlands and to Nuctech Warsaw Company Limited. 22 In that regard, even though, as the Commission states, the appellants are not seeking, in point 2 of the form of order sought, the suspension of all of the requests for access to the electronic correspondence at issue that it sent and that were the subject of that action for annulment, that finding has no bearing on the admissibility of the appeal. It would, by contrast, be relevant in the event that the Court of Justice sets aside the order under appeal, and, as the case may be, itself disposes of the case. 23 Furthermore, it should be stated that, in point 1 of the form of order sought by the appellants, they have indeed claimed that the order under appeal should be set aside. 24 Consequently, the appeal is admissible. The second ground of appeal, alleging errors of law when assessing the condition relating to urgency 25 The second ground of appeal, relating to the condition of urgency, which it is appropriate to examine first, consists of two parts. First part of the second ground of appeal – Arguments 26 By the first part of their second ground of appeal, the appellants submit that the order under appeal is vitiated by an error of law inasmuch as the President of the General Court treated, in paragraph 71 of that order, the administrative penalties of a pecuniary nature which could be imposed by the public authorities of a third country, in the present case China, for infringing that country’s law in the event of the electronic correspondence at issue being sent to the Commission, as damage of a purely financial nature. 27 The appellants refer to the principles stemming from the order of the Vice-President of the Court of 11 April 2024, Lagardère v Commission (C‑89/24 P(R), EU:C:2024:312, paragraphs 75, 77 and 78), in order to argue that those penalties expose them to serious and irreparable damage. According to the appellants, by analogy with what the General Court held, in the field of competition law, in paragraph 95 of the judgment of 12 April 2013, CISAC v Commission (T‑442/08, EU:T:2013:188), the fact that those penalties are imposed by public authorities attaches stigma to them, in the same way as criminal convictions. 28 The appellants further state that, in any event, the administrative penalties that could be imposed in the present case for infringing Chinese law are not only pecuniary penalties, but could consist in a business suspension or a licence revocation. In addition, the individuals directly liable for those infringements could also be subject to financial and criminal sanctions. 29 The Commission contends that that line of argument is unfounded. – Assessment 30 According to settled case-law of the Court of Justice, the purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Court. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking the interim relief. It is for that party to prove that it cannot await for the outcome of the main proceedings without suffering such damage (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 40). 31 While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 75 and the case-law cited). 32 Furthermore, the court hearing the application for interim relief must have concrete and precise indications, supported by detailed documents which demonstrate the situation of the party seeking the interim measures and enable the precise effects which would probably follow if the measures sought were not granted to be examined. That party is therefore required to provide, with supporting documentation, evidence and information allowing an accurate overall picture of its financial situation to be established (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 41 and the case-law cited). 33 Those requirements apply in particular where the damage alleged is damage of a pecuniary nature, which cannot, other than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he or she suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P (R), EU:C:2021:631, paragraph 42 and the case-law cited). 34 In the first place, it should be pointed out that, where the harm relied upon is of a financial nature, the interim measures sought will be justified if it appears that, without such measures, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be substantially affected in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (order of the Vice-President of the Court of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 54). 35 In the present case, as regards the administrative penalties of a pecuniary nature that would, it is alleged, be imposed by the Chinese authorities in the event of the electronic correspondence at issue being sent to the Commission, it must be stated, first of all, that the appellants have not asserted that the President of the General Court made an error of assessment in finding, in paragraphs 67 and 68 of the order under appeal, that they had not established or even claimed that they were in a position that would imperil their financial viability and that they had not provided any figures regarding the financial situation of the group of companies to which they belong, from accounts or otherwise, capable of substantiating the existence of serious and irreparable damage. 36 Next, as regards the appellants’ argument that there is stigma attached to such penalties, which, according to them, warrants the application of the principles stemming from the order of the Vice-President of the Court of 11 April 2024, Lagardère v Commission (C‑89/24 P(R), EU:C:2024:312), it must be recalled that, in paragraphs 75 and 77 of that order, the Vice-President of the Court of Justice stated that damage resulting from the fact that an undertaking is compelled to adopt conduct which could, in all likelihood, justify its criminal liability and therefore make it subject to criminal sanctions, had to be regarded as serious, in particular having regard to the stigma attached to a criminal conviction and the breach of the bond of trust with the company officers and the employees which could arise, in that case, from the commission of criminal offences against those persons. 37 Administrative penalties cannot be treated in the same way as such criminal penalties on the ground that they would be imposed by the administrative authorities of a third country. It follows that that fact is not such as to warrant the application by analogy of the principles stemming from the order of the Vice-President of the Court of 11 April 2024, Lagardère v Commission (C‑89/24 P(R), EU:C:2024:312), to the appellants. The fact, referred to by them, that the General Court was able to state, in paragraph 95 of the judgment of 12 April 2013, CISAC v Commission (T‑442/08, EU:T:2013:188), that a Commission decision finding an infringement of EU competition law constitutes ‘non-negligible stigma’ vis-à-vis the persons concerned does not appear to be such as to call this analysis into question. 38 Consequently, by holding, in paragraph 71 of the order under appeal, that the financial damage resulting from the imposition of administrative penalties of a pecuniary nature by the Chinese authorities cannot, otherwise than in exceptional circumstances, be regarded as irreparable, the President of the General Court did not vitiate that order by an error of law. 39 In the second place, the appellants further claim, ‘for the sake of completeness’, that the administrative penalties that could be imposed by the Chinese authorities in the event of the electronic correspondence at issue being sent to the Commission, in breach of Chinese law, could also be non-pecuniary in nature, such as a business suspension or a licence revocation, and that penalties could be imposed on the individuals directly concerned. 40 In that regard, it is important to state, as a preliminary point, that the appellants merely refer to the general description of penalties set out in paragraph 54(a) to (c) of their application for interim measures and in a legal opinion from a law firm, annexed to that application and to the present appeal. 41 In addition, and above all, as regards the administrative penalties consisting in a business suspension or a licence revocation, the appellants have not provided any information making it possible to show that the harm that could result from such administrative penalties liable to be adopted by the Chinese authorities would be such as to imperil their financial viability and could not be remedied by an action for damages, in accordance with the requirements of the case-law referred to in paragraphs 32 and 33 above. 42 It follows that the appellants have not established that the President of the General Court made an error of assessment by failing to find, in the order under appeal, that, at least in respect of administrative penalties consisting in a business suspension or a licence revocation, the damage liable to be sustained was serious and irreparable. 43 As for the criminal penalties, described in the legal opinion referred to in paragraph 40 above, they would be imposed, it is argued, on the individuals regarded as directly liable for the infringement of Article 28 of the Chinese Law on Safeguarding State Secrets, which prohibits data containing State secrets from being sent to the Commission without the approval of the competent authority. 44 However, the appellants have not put forward any argument making it possible to establish that the President of the General Court erred in law by holding, in paragraph 73 of the order under appeal, that they had failed to demonstrate that the electronic correspondence at issue actually contained State secrets or that they or Nuctech Technology had taken the necessary steps to obtain the required authorisation for its disclosure under that law and that that request had been refused. 45 It is apparent, by contrast, from paragraph 50 of the appeal that the appellants claim that the question whether or not they requested, under the Chinese Law on Safeguarding State Secrets, that the electronic correspondence at issue be communicated is ‘no longer relevant’, contrary to what the President of the General Court found, in paragraph 73 of the order under appeal, since they have established that sending that correspondence to the Commission would infringe Chinese Data Security Law and the Chinese Personal Information Protection Law. 46 Accordingly, the appellants have not established that the President of the General Court erred in law by finding, in paragraph 74 of the order under appeal, that, in the light of the evidence submitted to him in the context of the proceedings for interim relief, the appellants had not established to the requisite legal standard that they would be compelled, in order to give effect to the decision at issue, to take actions in respect of which they would probably incur criminal liability and, consequently, be subject to criminal sanctions. 47 The first part of the second ground of appeal must therefore be rejected as unfounded. Second part of the second ground of appeal – Arguments 48 By the second part of their second ground of appeal, the appellants submit that the President of the General Court failed to examine any of the supplementary evidence submitted by them, in three supplemental submissions, the first two dated 28 June 2024 and the third dated 12 July 2024, in order to establish that both the appellants and Nuctech Technology had in fact applied for authorisation from the competent Chinese authorities to send the electronic correspondence at issue to the Commission and that their applications had been rejected. According to the appellants, if the President of the General Court had examined that evidence, he would have had to find that sending that correspondence to the Commission would infringe Chinese law and subject the appellants and the individuals directly responsible to administrative penalties, which warranted a finding of urgency. 49 The appellants further state that no reason was provided by the President of the General Court, in the order under appeal, for ignoring the supplementary evidence. 50 The Commission contends that the second part of the second ground of appeal is ineffective and unfounded. – Assessment 51 It must be noted, first of all, that it is in no way apparent from the information provided by the appellants in the second part of their second ground of appeal that the supplemental submissions to which they refer concern steps that they themselves, or Nuctech Technology, had taken vis-à-vis the Chinese authorities pursuant to the Chinese Law on Safeguarding State Secrets. 52 Next, the fact that the appellants and Nuctech Technology took steps to obtain the authorisations required under the Chinese Data Security Law and the Chinese Personal Information Protection Law is not such as to vitiate the order under appeal by an error of law as regards the assessment by the President of the General Court of the condition relating to urgency and is, therefore, ineffective. 53 The analysis of the President of the General Court to the effect that the administrative penalties imposed in the event of infringement of those laws did not make it possible to establish urgency is based to the requisite legal standard on the finding, in paragraph 71 of the order under appeal, that the appellants had failed to demonstrate that those penalties would result in irreparable damage. 54 Lastly, in so far as the appellants claim that the order under appeal is vitiated by a failure to comply with the obligation to state reasons on the ground that the President of the General Court did not expressly refer to the supplementary evidence adduced in the three supplemental submissions, it must be borne in mind that, according to settled case-law, the judge hearing an application for interim measures cannot be required to reply explicitly to all of the points of fact and law raised in the course of the interlocutory proceedings. It is sufficient that the reasons given validly justify his order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review (order of the President of the Court of 31 August 2010, Artisjus v Commission, C‑32/09 P(R), EU:C:2010:473, paragraph 17 and the case-law cited). 55 In the present case, the President of the General Court set out to the requisite legal standard, in the order under appeal, the reasons why the condition relating to urgency was not satisfied. 56 Consequently, the second part of the second ground of appeal must be rejected as in part ineffective and in part unfounded and, accordingly, the second ground of appeal must be rejected in its entirety. 57 In those circumstances, it does not appear necessary to examine the first and third grounds of appeal, relating, respectively, to a prima facie case and to the weighing up of interests, since the operative part of the order under appeal, which dismisses the appellants’ application for interim measures, is based to the requisite legal standard on the ground that the condition relating to urgency is not, in any event, satisfied. 58 Since, in accordance with the provisions of Article 160(3) of the Rules of Procedure, the conditions relating to a prima facie case and to urgency are distinct and cumulative (see, to that effect, order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 41 and the case-law cited), the absence of urgency, correctly observed by the President of the General Court, has as its consequence that even a potential error of law committed by the President of the General Court in the assessment of the prima facie case or in the weighing up of interests would not lead to the order under appeal being set aside. 59 Accordingly, the appeal must be dismissed in its entirety. Costs 60 In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. 61 Under Article 138(1) of the Rules of Procedure, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 62 Since the appellants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, the Vice-President of the Court of Justice hereby orders: 1. The appeal is dismissed. 2. Nuctech Warsaw Company Limited sp. z o.o and InsTech Netherlands BV shall pay, in addition to their own costs, those incurred by the European Commission. Luxembourg, 21 March 2025. A. Calot Escobar T. von Danwitz Registrar Vice-President * Language of the case: English.