ORDER OF THE VICE-PRESIDENT OF THE COURT
6 September 2024 (*)
( Appeal – Interim relief – Approximation of laws – Regulation (EU) 2022/2065 – Single market for digital services – Additional online advertising transparency – Decision to designate as a very large online platform – Action for annulment – Balancing of competing interests )
In Case C‑511/24 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 22 July 2024,
Aylo Freesites LTD, established in Nicosia (Cyprus), represented by A. Bray, avocate, J. Beckedorf, A. Ghalamkarizadeh, Rechtsanwälte, and C. Thomas, avocat,
appellant,
the other party to the proceedings being:
European Commission, represented by O. Gariazzo and P.-J. Loewenthal, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its appeal, Aylo Freesites LTD seeks to have set aside the order of the President of the General Court of the European Union of 2 July 2024, Aylo Freesites v Commission (T‑138/24 R, ‘the order under appeal’, EU:T:2024:431), by which the President dismissed its application for suspension of operation of Commission Decision C(2023) 8842 final of 20 December 2023 designating Pornhub as a very large online platform in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ 2022 L 277, p. 1) (‘the decision at issue’).
Background to the dispute
2        The background to the dispute is set out in paragraphs 2 to 5 of the order under appeal. For the purposes of the present proceedings, that background may be summarised as follows.
3        Aylo Freesites operates the adult content online platform Pornhub, which enables users to watch adult videos uploaded and shared by verified users.
4        By the decision at issue, the European Commission designated Pornhub as a very large online platform on the basis of Article 33(4) of Regulation 2022/2065.
The proceedings before the General Court and the order under appeal
5        By application lodged at the Registry of the General Court on 1 March 2024, Aylo Freesites brought an action for annulment of the decision at issue.
6        By a separate document lodged at the Court Registry on the same date, Aylo Freesites brought an application for interim measures seeking suspension of operation of that decision, in so far as the effect thereof is to require it to make an advertisement repository publicly available under Article 39 of Regulation 2022/2065.
7        By the order under appeal, the President of the General Court dismissed that application.
8        After finding, in paragraphs 48 and 90 of that order, that there was a prima facie case and that the condition relating to urgency was satisfied, he nevertheless held, in paragraph 120 of that order, that the interests defended by the EU legislature prevailed, in the present case, over the interests of the applicant, of performers and of other natural persons, with the result that the weighing-up thereof leaned in favour of dismissing the application for interim measures.
Forms of order sought
9        Aylo Freesites claims that the Court should:
–        set aside the order under appeal;
–        suspend the operation of the decision at issue, in so far as the effect thereof is to require it to make an advertisement repository publicly available under Article 39 of Regulation 2022/2065, as regards the information referred to in Article 39(2)(b) and (c) of that regulation, in so far as that information relates to natural persons, and
–        order the Commission to pay the costs.
10      The Commission contends that the Court should:
–        dismiss the appeal; and
–        order Aylo Freesites to pay the costs.
The appeal
11      Aylo Freesites puts forward two grounds in support of its appeal, alleging, first, errors of law in the assessment of the risks to which performers and other natural persons are exposed and, second, a failure to provide a proper statement of reasons and an error of law in the assessment of the relevance of the challenge to the decision to designate Aylo Freesites as a very large online platform.
The first ground of appeal
The first part of the first ground of appeal
–       Arguments
12      By the first part of its first ground of appeal, Aylo Freesites submits that paragraph 111 of the order under appeal is vitiated by an error of law, since the substance of the grounds put forward to establish a prima facie case is irrelevant to the weighing-up of the interests involved. The interests concerned by a potential suspension of operation of the decision at issue should be taken into consideration for the purposes of that weighing-up, without the matter of whether or not they may relate to a ground put forward in support of the action for annulment of that decision being decisive.
13      Consequently, Aylo Freesites submits that it could rightly rely on the risk of violation of the performers’ right to privacy for the purposes of the assessment of the condition relating to urgency and the weighing-up of interests, even though it did not rely on that risk in support of its action for annulment of the decision at issue.
14      The Commission contends that the first part of the first ground of appeal should be rejected as ineffective or, in the alternative, as unfounded.
–       Assessment
15      It should be noted, as a preliminary point, that even if the first part of the first ground of appeal were to be construed as inter alia establishing that the damage to which the natural persons whose names are required to be included in the advertisement repository referred to in Article 39 of Regulation 2022/2065 which Pornhub must make publicly available in accordance with the decision at issue had to be taken into account for the purposes of the assessment of the condition relating to urgency, such an argument would have to be rejected as inadmissible, because it was not put forward at first instance and because, in an appeal, a party cannot raise for the first time before the Court of Justice an argument that it did not put forward before the General Court (order of the Vice-President of the Court of 17 December 2020, Anglo Austrian AAB and Belegging-Maatschappij ‘Far East’ v ECB, C‑207/20 P(R), EU:C:2020:1057, paragraph 72 and the case-law cited).
16      Given that clarification, it should be noted that, in the weighing-up of the interests involved, the President of the General Court found, in the first sentence of paragraph 111 of the order under appeal, that none of the four pleas put forward by Aylo Freesites to establish a prima facie case for the interim relief application was based on a breach of the privacy of performers who advertise on Pornhub or referred to Article 7 of the Charter of Fundamental Rights of the European Union.
17      To that end, it should be recalled that Article 156(4) of the Rules of Procedure of the General Court 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. Thus, according to settled case-law of the Court of Justice, the court hearing an application for interim relief may order the suspension of operation of an act, or 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 damage to the interests of the party making the application, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that applications for interim measures must be dismissed if any one of them is not satisfied. The court hearing an application for interim relief must also, where appropriate, weigh up the interests involved (order of the Vice-President of the Court of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 66 and the case-law cited).
18      It is clear that, in most interim proceedings, the decision to grant or to refuse the suspension of operation sought is likely to produce, to a certain extent, certain definitive effects and it is for the court hearing the application for interim relief to weigh up the risks attaching to each of the possible solutions. In practical terms, this involves, in particular, examining whether or not the interest of the applicant for interim measures in obtaining suspension of the operation of the contested act outweighs the interest in that act’s immediate implementation. In that examination, it must be determined whether the possible annulment of that act by the judgment on the substance would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of its operation would be such as to impede the objectives pursued by the contested act in the event of the action in the main proceedings being dismissed (see, to that effect, order of the Vice-President of the Court of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 143 and the case-law cited).
19      It follows from the case-law referred to in paragraphs 17 and 18 above that the weighing-up of the interests involved constitutes, for the purposes of potentially granting interim relief, a separate and distinct step from the examination of whether there is a prima facie case.
20      For the purposes of that weighing-up, it is for the court hearing the application for interim relief to assess the foreseeable consequences for the interests involved that would result from granting or not granting interim relief.
21      The consequences of a suspension of operation or, conversely, an immediate operation of a contested decision do not, in principle, differ depending on which plea is upheld to establish that there is a prima facie case, which is why there is not necessarily a link between the interests that will be affected by the decision of the court hearing the application for interim relief and the pleas on which the applicant for interim measures relies in order to establish a prima facie case.
22      Consequently, the fact that the applicant for interim measures did not rely on a breach of certain interests in order to establish a prima facie case is not such as to preclude those interests from actually being affected by the forthcoming decision to be delivered by the court hearing the application for interim relief and thereby justify that that court disregard that breach in weighing up the interests involved.
23      It follows that the President of the General Court erred in law, in paragraph 111 of the order under appeal, in basing himself, in order to assess the relevance of the argument put forward by Aylo Freesites relating to the risk of breach of the performers’ privacy, on the fact that none of the pleas put forward to establish a prima facie case was based on such a breach.
24      It must nonetheless be recalled that, if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part thereof can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (order of the Vice-President of the Court of 27 June 2024, ID Parti v Authority for European Political Parties and European Political Foundations, C‑332/24 P(R), EU:C:2024:566, paragraph 54 and the case-law cited).
25      That is the case here.
26      In that regard, it should be noted that paragraph 111 of the order under appeal relates solely to the argument put forward by Aylo Freesites to the effect that there is a significant risk that the advertisement repository will be used as a ‘doxing’ list, since it makes publicly available the identities of individuals such as performers advertising their OnlyFans channels or individuals engaged in affiliate marketing, thereby breaching the privacy of the persons concerned by exposing them to acts of harassment and discrimination.
27      However, as observed by the President of the General Court in paragraph 110 of the order under appeal, whilst the possibility cannot be ruled out that the interests of third parties may be taken into account in the weighing-up of the interests involved (see, to that effect, order of 22 May 1978, Simmenthal v Commission, 92/78 R, EU:C:1978:106, paragraph 9), the applicant for interim relief may not rightfully rely, for the purposes of that weighing-up, on the fact that the immediate operation of the decision at issue risks causing third parties damage distinct from that relied on in order to demonstrate that the condition relating to urgency was satisfied.
28      If the court hearing the application for interim relief were to find, taking account of such a risk, that the interests justifying the grant of an interim measure were to prevail, that interim measure would ultimately be based, decisively, on the need to prevent the occurrence of damage, the serious and irreparable nature of which has not been proven, even though such proof is, in principle, a prerequisite for the grant of interim relief (see, to that effect, order of the Vice-President of the Court of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 120 and the case-law cited).
29      The Court’s case-law is, moreover, to the effect that the condition relating to urgency and the weighing up the interests involved are closely linked, since the very purpose of that weighing-up is to assess whether, despite the adverse effect on the interests of the applicant, which is at risk of suffering serious and irreparable damage, the taking into account of the interests in the immediate implementation of the decision at issue is such as to justify the refusal to grant the interim measures sought (see order of the Vice-President of the Court of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 150 and the case-law cited).
30      In the present case, it is apparent from paragraphs 49 to 56 and 82 to 90 of the order under appeal, which are not contested in the context of the present appeal, that at first instance Aylo Freesites alleged solely damage of a pecuniary nature, with the result that the President of the General Court examined the condition relating to urgency only in the light of that damage.
31      Although Aylo Freesites did refer in its application for interim relief to the fact that the operation of the decision at issue would enable the public to identify the natural persons advertising on Pornhub, it relied on that fact not in order to establish a risk of occurrence of a non-pecuniary loss consisting in breach of those persons’ privacy, but solely in order to establish the existence of a risk of occurrence of financial damage that would result from those persons’ ceasing to advertise on Pornhub so as to avoid any and all breaches of their privacy.
32      In those circumstances, given the procedural choices for which it itself opted, Aylo Freesites may not, in order to establish that the weighing-up of the interests involved warrants granting the suspension of operation sought, rely on the risk that the immediate operation of the decision at issue may cause damage of a non-pecuniary nature to certain natural persons advertising on Pornhub.
33      Moreover, in so far as the argument put forward by Aylo Freesites to the effect that there is a significant risk that the advertisement repository will be used as a ‘doxing’ list must be construed as being put forward to establish the seriousness of the pecuniary damage to which it would be exposed in the event of the immediate operation of the decision at issue, it is clear that Aylo Freesites has not adduced any evidence relating to the share of its earnings derived from advertising by natural persons and that it accordingly fails to establish that its long-term existence or development is compromised due to that risk.
34      Consequently, the first part of the first ground of appeal must be rejected as ineffective.
The second and third parts of the first ground of appeal
–       Arguments
35      By the second part of its first ground of appeal, Aylo Freesites submits that the assessment in the second sentence of paragraph 111 of the order under appeal, to the effect that Aylo Freesites did not specify whether the information referred to in Article 39(2)(b) and (c) of Regulation 2022/2065 suffices to identify the natural persons in the advertisement repository referred to in Article 39 of that regulation, is vitiated by a distortion of its pleadings at first instance and a number of errors of law.
36      By the third part of its first ground of appeal, Aylo Freesite submits that paragraph 112 of the order under appeal is vitiated by a distortion of the evidence adduced at first instance, a contradictory set of reasons, a failure to provide a proper statement of reasons and an error of law.
37      The Commission contends that the second and third parts of the first ground of appeal should be rejected as ineffective or, in the alternative, as unfounded.
–       Assessment
38      It is apparent from the present appeal that the second and third parts of the first ground of appeal thereof criticise solely the second sentence of paragraph 111 and paragraph 112 of the order under appeal, which are intended to respond to the argument put forward by Aylo Freesites to the effect that there is a significant risk that the advertisement repository will be used as a ‘doxing’ list, since it makes publicly available the identities of individuals such as performers advertising their OnlyFans channels or individuals engaged in affiliate marketing, thereby breaching the privacy of the persons concerned by exposing them to acts of harassment and discrimination.
39      However, given that, as is apparent from paragraphs 26 to 34 above, such an argument could not, in any event, be taken into account by the President of the General Court in the proceedings at first instance for the purpose of weighing up the interests involved, the second and third parts of the first ground of appeal must be rejected as ineffective, without it being necessary to consider their merits.
The second ground of appeal
Arguments
40      By its second ground of appeal, Aylo Freesites submits, first, that the President of the General Court failed, incorrectly, to respond to the argument to the effect that the fact that Pornhub does not satisfy the criteria for being defined as a very large online platform was decisive for the purposes of assessing the weighing-up of the interests involved.
41      Second, Aylo Freesites submits that the President of the General Court erred in law by presuming, for the purposes of that weighing-up, that Pornhub had to be deemed to be a very large online platform, whereas that categorisation had been formally contested by Aylo Freesites. That categorisation had, moreover, been decisive, since the reasons set out in paragraphs 113 to 119 of the order under appeal are based on the specificities of the rules applicable to very large online platforms.
42      The Commission contends that the second ground of appeal must be rejected as being inadmissible or, in the alternative, as being unfounded.
Assessment
43      In the first place, in so far as the second ground of appeal criticises the President of the General Court for having omitted to respond to the line of argument put forward by Aylo Freesites aimed at establishing that the fact that Pornhub does not satisfy the criteria to be defined as a very large online platform was decisive for the purposes of the assessment of the weighing-up of the interests involved, it should be noted, first, that, in the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the ground of appeal alleging that the General Court failed to rule on arguments relied on at first instance amounts essentially to relying on a breach of the obligation to state reasons, which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (order of the Vice-President of the Court of 2 February 2024, Mylan Ireland v Commission, C‑604/23 P(R), EU:C:2024:117, paragraph 28 and the case-law cited).
44      That obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (order of the Vice-President of the Court of 2 February 2024, Mylan Ireland v Commission, C‑604/23 P(R), EU:C:2024:117, paragraph 29 and the case-law cited).
45      In the present case, the reasons set out in detail in paragraphs 113 to 119 of the order under appeal in order to establish that the application to Pornhub of the obligations laid down in Article 39 of Regulation 2022/2065 was necessary in order to achieve the objectives pursued by the European Union legislature enable Aylo Freesites to know why the President of the General Court did not uphold its line of argument to the effect that the application to Pornhub of only the obligations laid down in Article 40 of that regulation suffices to achieve those objectives and provides the Court of Justice with sufficient material for it to exercise its power of review in that regard.
46      In those circumstances, given that the argument referred to in paragraph 43 above was merely one of the elements put forward by Aylo Freesites in support of that line of argument, the President of the General Court could, in accordance with the case-law referred to in paragraph 44 above, reject that argument implicitly by emphasising the necessity of applying to Pornhub the obligations laid down in Article 39 of Regulation 2022/2065 in order to achieve those objectives.
47      In the second place, in so far as the second ground of appeal criticises the President of the General Court for having based himself on the Commission’s assessment, in the decision at issue, according to which Pornhub constitutes a very large online platform, it is true that, in accordance with the settled case-law of the Court, the court hearing an application for interim relief must postulate, solely for the purposes of assessing urgency, without this involving it taking any position as regards the merits of the complaints put forward in the main action by the applicant for interim relief, that those complaints might be upheld. The serious and irreparable damage whose likely occurrence must be established is that which would result, where relevant, from a refusal to grant the interim measures sought in the event that the action in the main proceedings was subsequently successful (order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 61 and the case-law cited).
48      However, paragraphs 113 to 119 of the order under appeal, at which the second ground of appeal is directed, relate not to the condition relating to urgency but to the assessment, carried out in the context of the weighing-up of the interests involved, of the interest relating to the immediate operation of the decision at issue.
49      As is apparent from the case-law cited in paragraph 18 above, the purpose of that assessment is to determine whether the suspension of the operation of the decision at issue is such as to impede its full effect in the event that the substantive action is dismissed.
50      It follows that that assessment must be carried out based on the assumption that the complaints put forward by the applicant for interim relief will not likely be upheld, with a view to assessing the consequences of delay in the operation of the decision at issue that would result from granting interim measures in the event that the court hearing the substantive action ultimately rules that the unlawfulness of that decision has not been established.
51      It follows that the President of the General Court did not err in law in basing himself implicitly, in paragraphs 113 to 119 of the order under appeal, on the Commission’s assessment according to which Pornhub constitutes a very large online platform.
52      The second ground of appeal must accordingly be rejected as unfounded, in consequence of which the appeal must be dismissed in its entirety.
Costs
53      In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
54      Under Article 138(1) of those rules, which applies to appeal proceedings 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.
55      Since the Commission has applied for costs and Aylo Freesites has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Vice-President of the Court hereby orders:
1.      The appeal is dismissed.
2.      Aylo Freesites LTD shall pay the costs.
Luxembourg, 6 September 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
Vice-President
*      Language of the case: English.