Order;Order (extracts) — ECLI:EU:T:2018:763
Date: 2018-10-12
Language of the case: English
Court formation: President of the Chamber
Subject matter: Agriculture and Fisheries;Plant health legislation
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Belgium;United Kingdom

Summary — Order of the President of the General Court, 12 October 2018 1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Assessment in litigation on the protection of confidential information — Necessity of satisfying the condition relating to the establishment of a prima facie case — Action against a decision of the European Food Safety Authority (EFSA) refusing confidential treatment of information prepared by it — Failure to establish the applicability of the confidential treatment procedure to the information concerned — No urgency (Arts 278 TFEU and 279 TFEU; European Parliament and Council Regulation No 1107/2009, Art. 63) 2. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Assessment in litigation on the protection of confidential information — Burden of proof with respect to the confidential nature of the information at issue (Arts 278 TFEU and 279 TFEU) 1. In interim proceedings, it is insufficient, for the purposes of being granted interim measures, to claim that the information which is to be disclosed is confidential where such a claim does not satisfy the condition relating to the establishment of a prima facie case. Thus, regarding an application seeking suspension of the operation of a decision of the European Food Safety Authority (EFSA) rejecting a claim for confidential treatment made in the context of the application for the renewal of the approval of an active substance, the condition relating to the establishment of a prima facie case is not satisfied, since the information concerned was prepared by EFSA in the context of the assessment of that application and it does not seem, a priori, capable of being defined as information for which confidential treatment may be claimed pursuant to Article 63(1) of Regulation No 1107/2009 concerning the placing of plant protection products on the market. Moreover, it is apparent, at first sight, that Article 63 of that regulation mentions a possible assessment by EFSA not to show that it can be granted confidential treatment, but to exclude the application of confidential treatment to information submitted by interested parties. (see paras 26, 30, 31) 2. Where an undertaking seeks interim measures in order to prevent the publication of information allegedly covered by the obligation of professional secrecy, the extent to which disclosure of such information will cause serious and irreparable harm depends on a combination of factors, such as, inter alia, how significant the information is in commercial and professional terms for the undertaking providing the information and its usefulness for other market participants which are liable to examine and use it subsequently. However, the solutions adopted by the judge hearing the application for interim measures in view, inter alia, of the non-quantifiable and therefore irreparable nature of the financial loss caused by a publication of allegedly confidential information does not apply where the applicant fails to identify, in the application for interim measures, information which, if the documents at issue were published in their entirety, could be especially useful for its current or future competitors, in that it could be used for commercial and competitive purposes, and that, in particular, the applicant does not refer to any specific element which constitutes, for the applicant, an intangible asset that may be used for competitive purposes, whose value could be seriously reduced, or even eliminated, if it did not remain secret. Such is the case here where the applicant merely argues that full publication of the documents in question would be liable to harm its reputation, its market share and its turnover, in so far as those documents concern a substance characterised, in its view, as presenting a health risk, with regards to its customers, users of that substance, the general public and regulatory authorities. (see paras 38-40)