ORDER OF THE VICE-PRESIDENT OF THE COURT
31 March 2023 (*)
(Interim relief – Articles 278 and 279 TFEU – Appeal – Application for suspension of operation and other interim measures – Public procurement – Confidentiality)
In Case C‑141/23 P(R)-R,
APPLICATION for suspension of operation and other interim measures under
Articles 278 and 279 TFEU, brought on 9 March 2023,
Telefónica de España SA, established in Madrid (Spain), represented by J. Blanco Carol and F. González Díaz, abogados, and P. Stuart, Barrister,
appellant,
the other parties to the proceedings being:
European Commission, represented by L. André and M. Ilkova, acting as Agents,
defendant at first instance,
BT Global Services Belgium BV, established in Machelen (Belgium),
intervener at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its application for interim measures, Telefónica de España SA claims, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice, that the Court should:
–        order the suspension of operation of the order of the Vice-President of the General Court of the European Union of 28 February 2023, Telefónica de España v Commission (T‑170/22 R-RENV, not published, EU:T:2023:89), by which the General Court dismissed its application seeking, first, suspension of the operation of the decision of the European Commission of 21 January 2022 relating to the call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, informing the appellant that its tender had not been successful in the procurement procedure and announcing the imminent signing of a contract with the successful tenderer and, secondly, an order requiring the Commission to suspend the signing of that contract; or
–        order the Commission to suspend the award of contracts in the call for tenders DIGIT/A 3/PR/2019/010 pending a ruling from the General Court in Case T‑170/22;
–        order the Commission to suspend the signing of a contract in that call for tenders;
–        grant any other appropriate interim measures, and in any event
–        order the Commission to pay the costs.
2        That application was made at the same time as Telefónica de España brought an appeal on 8 March 2023, pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, seeking to have set aside the order of the Vice-President of the General Court of the European Union of 28 February 2023, Telefónica de España v Commission (T‑170/22 R-RENV, not published, EU:T:2023:89).
3        By document lodged at the Registry of the Court of Justice on 14 March 2023, Telefónica de España requested that the Court treat as confidential, vis-à-vis BT Global Services Belgium BV, intervener at first instance, part of paragraph 179 of its application for interim measures and part of Annexes P.10 and P.11 to that application, which correspond to the observations submitted by the Commission in Case T‑170/22 R and in Case C‑478/22 P(R)-R respectively. To that end, Telefónica de España produced a non-confidential version of that application for interim measures
and of those annexes.
4        In that regard, it should be noted that, by document lodged at the Registry of the General Court on 1 July 2022 in Case T‑170/22 R, Telefónica de España requested that the General Court treat part of its application for interim measures and the annexes thereto as confidential vis-à-vis BT Global Services Belgium.
5        By order of 14 December 2022, Telefónica de España v Commission (T‑170/22 R-RENV, not published), the Vice-President of the General Court decided to reserve his decision on that request for confidential treatment and to order, provisionally, the Registrar of the General Court to serve, on BT Global Services Belgium, a non-confidential version of each of the procedural documents served on the other parties.
6        In that context, it must be noted, first of all, that Article 160(5) of the Rules of Procedure of the Court of Justice provides that the application for interim measures is to be served on the opposite party, and the President is to prescribe a short time limit within which that party may submit written or oral observations. Next, Article 171(1) of those rules provides that the appeal is to be served on the other parties to the relevant case before the General Court. Lastly, in accordance with
Article 172 of those rules, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service, on that party, of the appeal. It follows from those provisions that an application for interim measures made at the same time as an appeal is brought, and the other procedural documents lodged before the Court of Justice, are to be served, in principle, on the parties granted leave to intervene before the General Court.
7        However, where a party is requesting, vis-à-vis a party that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis that same party in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (order of the President of the Court of Justice of 19 January 2023, Google and Alphabet v Commission, C‑738/22 P, not published, EU:C:2023:44, paragraph 5 and the case-law cited).
8        Although, in the present case, the Vice-President of the General Court did not give a definitive ruling on the request for confidential treatment made by Telefónica de España and referred to in paragraph 4 of the present order, the measures which he decided to adopt in his order of 14 December 2022, Telefónica de España v Commission (T‑170/22 R-RENV, not published), in practice ensure, provisionally, that the elements in the file which are covered by that request are given confidential treatment which should, in principle, be maintained for the purposes of the proceedings before the Court of Justice.
9        It must be stated that the information in paragraph 179 of the application for interim measures and in Annexes P.10 and P.11 to that application which, by way of the present request, Telefónica de España wishes to prevent being disclosed to BT Global Services Belgium, forms part of the information covered by the request for confidential treatment made at first instance by Telefónica de España.
10      In addition, since Annex P.11 to Telefónica de España’s application for interim measures corresponds to the Commission’s observations lodged in Case C‑478/22 P(R)-R, it must be pointed out that, in accordance with the order of the Vice-President of the Court of Justice of 4 October 2022, Telefónica de España v Commission (C‑478/22 P(R)-R, not published, EU:C:2022:802), only a non-confidential version of those observations was served on BT Global Services Belgium in the proceedings in that case.
11      In the light of the foregoing, it is necessary to grant Telefónica de España’s request that the information redacted in the non-confidential version of Telefónica de España’s application for interim measures and in Annexes P.10 and P.11 to that application be treated as confidential vis-à-vis BT Global Services Belgium, intervener at first instance. Accordingly, only the non-confidential version of that application for interim measures and of those annexes shall be disclosed by the Registrar to BT Global Services Belgium.
On those grounds, the Vice-President of the Court hereby orders:
1.      The information redacted in the non-confidential version of the application for interim measures and of Annexes P.10 and P.11 to that application, which were lodged at the Court Registry by Telefónica de España SA on 14 March 2023, shall be treated as confidential vis-à-vis BT Global Services Belgium BV, and only that non-confidential version shall be required to be served by the Registrar on BT Global Services Belgium.
2.      The costs are reserved.
Luxembourg, 31 March 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
Vice-President
*      Language of the case: English.