Order — ECLI:EU:C:2004:566
Date: 2004-09-27
Language of the case: English
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Investigations
Procedure: Action for annulment;Appeal - unfounded;Application for interim measures - unfounded;Appeal - successful
Origin: United Kingdom

Summary of the Order 1. Applications for interim measures – Interim measures – Conditions for granting – Prima facie case – Serious and irreparable damage – Cumulative nature (Art. 243 EC; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2)) 2. Competition – Administrative procedure – Commission’s powers of investigation – Decision to order an investigation or not to allow professional privilege for documents copied during an investigation – Annulment by the Community judicature – Effects – Commission prohibited from using the information and documents obtained unlawfully (Council Regulation No 17, Art. 14(3)) 3. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Serious and irreparable damage – Damage resulting from a Commission decision rejecting a request for confidential treatment for documents copied during an investigation on the basis of Article 14 of Regulation No 17 – None (Arts 242 EC and 243 EC; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2)) 1. Interim measures may be ordered only 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 it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent. (see para. 28) 2. If a decision by the Commission to order an investigation were annulled by the Community judicature, the Commission would in that event be prevented from using, for the purposes of proceeding in respect of an infringement of the Community competition rules, any documents or evidence which it might have obtained in the course of that investigation, as otherwise the decision on the infringement might, in so far as it was based on such evidence, be annulled by the Community judicature. The same principles apply where a decision of the Commission not to allow professional privilege for one or more documents is at issue and that decision is annulled by the Community judicature. (see paras 37-38) 3. 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 of Justice. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief. The condition relating to urgency is not satisfied by an application for suspension of operation of a Commission decision to look at documents which were copied during an investigation on the basis of Article 14(3) of Regulation No 17 and placed in a sealed envelope, documents which an undertaking claims are protected by professional privilege. Since, if that decision were subsequently held to be unlawful, the Commission would be required to remove from its file the documents affected by that unlawfulness and would therefore be unable to use them as evidence, the possibility of their unlawful use in proceedings for infringement of the Community competition rules brought by the Commission is purely theoretical, and in any event improbable. Moreover, while the mere reading by the Commission of the information in those documents, without that information being used in proceedings for the infringement of the Community competition rules, may possibly be capable of affecting professional privilege, that circumstance, in view of an undertaking by the Commission not to allow third parties to have access to the documents, is not in itself sufficient to show that the condition of urgency is satisfied. The damage which might possibly result from a more detailed reading of those documents, which the Commission’s officials have already examined summarily during the investigation, is not sufficient to establish the existence of serious and irreparable harm, since the Commission is prevented from using the information thus obtained. (see paras 36, 39-44)