ORDER OF THE PRESIDENT OF THE GENERAL COURT
12 October 2018(*)(1)
(Application for interim measures — Plant protection products — Regulation (EC) No 1107/2009 — Publication of the conclusion of the examination carried out by EFSA on the review of the approval of the active substance thiram — Claim for confidential treatment of certain sections — Refusal to grant confidentiality — Application for interim measures — Lack of urgency)
In Case T‑621/17 R,
Taminco BVBA, established in Ghent (Belgium),
represented by C. Mereu and M. Grunchard, lawyers,
applicant,
v
European Food Safety Authority (EFSA), represented by D. Detken and S. Gabbi, acting as Agents, and by R. van der Hout and C. Wagner, lawyers,
defendant,
supported by
European Commission, represented by G. Koleva and I. Naglis, acting as Agents,
intervener,
APPLICATION based on Articles 278 and 279 TFEU, seeking suspension of the operation of the decision of EFSA of 18 July 2017 rejecting the claims for confidential treatment made in the context of the application for the renewal of the approval of the active substance thiram,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1        The applicant, Taminco BVBA, is a company established under Belgian law belonging to the Eastman group of companies. Taminco is, together with Arysta LifeScience Great Britain Ltd, the main proprietor of a set of toxicological data. In addition, the applicant is the holder of registrations for foliar treatments and seed treatments used to protect crops. As such, the applicant manufactures, inter alia, the active substance thiram.
2        On 28 January 2002, Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1) was adopted. The European Food Safety Authority (EFSA) is a decentralised EU body. Article 22(2) of Regulation No 178/2002 entrusts EFSA with providing scientific advice and scientific and technical support for the Union’s legislation and policies in all fields which have a direct or indirect impact on food and feed safety. It states, moreover, that EFSA is to provide independent information on all matters within those fields and communicate on risks.
3        Pursuant to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation (EC) No 1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (OJ 2011 L 153, p. 1), thiram was listed in Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1). The approval of thiram is subject to the standard regulatory renewal of approval process under Article 14 et seq. of Regulation (EC) No 1107/2009 of the Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).
4        In accordance with Article 1 of Commission Implementing Regulation (EU) No 844/2012 of 18 September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation No 1107/2009 (OJ 2012 L 252, p. 26), the renewal of approval was subject to an initial evaluation by the Rapporteur Member State, the French Republic, and the co-rapporteur Member State, the Kingdom of Belgium, which concluded that there was to be no change in the classification of thiram and proposed that it be renewed. EFSA received the result of the evaluation on 20 January 2016.
5        On 15 March 2016, pursuant to Article 12 of Regulation No 844/2012, EFSA sent the initial evaluation to the Member States and to the Thiram Task Force (of which the applicant is a member) for observations.
6        On 1 February 2017, EFSA sent the applicant four documents (its overall conclusion report, the list of endpoints, the peer review report and the renewal assessment report), which contained, inter alia, the conclusions of the discussion of its experts on the potential carcinogenicity of thiram.
7        In accordance with Article 63 of Regulation No 1107/2009, the applicant was offered the opportunity to submit redacted versions of the documents included in the report if they sought to claim that information contained in them was confidential. On 15 February 2017, the applicant sent EFSA the redacted versions of four documents.
8        By email of 16 February 2017, EFSA rejected the requests referred to as regards the publication of the conclusion and of the list of endpoints for thiram on the ground that it was its standard procedure to make publicly available the results of a peer review process. In addition, it specifies that the conclusion clearly reports why the classification had been proposed and on what basis. On 20 July 2017, after several exchanges between the parties concerning the publication of that conclusion, EFSA notified the applicant of its decision of 18 July 2017 to publish a provisional redacted version of its conclusion on its website before publishing it in its entirety, including the mention of thiram’s classification as a carcinogen, on the expiry of the time limit for bringing an action before the General Court, namely, on 20 September 2017 (‘the contested decision’). It consists of the publication of certain parts of EFSA’s conclusion on the peer review of the renewal of authorisation of the active substance thiram and of the list of endpoints that relates to it (‘the information concerned’ or ‘the documents at issue’).
9        By application lodged at the Registry of the General Court on 14 September 2017, the applicant brought an action, primarily, for annulment of the contested decision. In support of that action, it argues, inter alia, that the contested decision undermines its commercial interests and thus constitutes an infringement of Article 63 of Regulation No 1107/2009 protecting confidential information.
10      By separate document lodged at the Court Registry on the same day, the applicant lodged an application for interim measures, in which it claims, in essence, that the President of the General Court should:
–        suspend with immediate effect the implementation of the contested decision in accordance with Article 157(2) of the Rules of Procedure of the General Court until the Court has given judgment in the main proceedings;
–        order any other interim measures as appropriate and hold an oral hearing as needed;
–        order EFSA to pay the costs.
11      By order of 19 September 2017, the President of the General Court granted the applicant’s request and suspended, pursuant to Article 157(2) of the Rules of Procedure, the effects of the contested decision, before EFSA’s submission of its observations.
12      In its observations on the application for interim measures, which were lodged at the Court Registry on 6 October 2017, EFSA contends that the President of the General Court should:
–        dismiss the application for interim measures;
–        order the applicant to bear its own costs and to pay those incurred by EFSA in connection with the interlocutory proceedings.
13      On 10 January 2018, the European Commission was granted leave to intervene in support of the form of order sought by EFSA in the main proceedings.
14      In its statement in intervention of 29 January 2018, lodged in the present case, the Commission raised objections regarding whether the conditions for the grant of interim measures in the present case were met and requested the President of the General Court, first, to dismiss the application for interim measures and, second, to order the applicant to pay the costs of the proceedings.
15      EFSA and the applicant lodged their observations on the Commission’s statement in intervention on 30 January and 12 February 2018, respectively.
16      By letter of 19 January 2018, the applicant requested that the interlocutory proceedings be suspended until a decision was taken in the main proceedings.
17      In its observations of 25 January 2018 on the request for suspension of the interlocutory proceedings, EFSA requested the President of the General Court:
–        primarily, to reject the applicant’s request for suspension of the interlocutory proceedings;
–        in the alternative, to cancel the order of 19 September 2017.
18      By decision of 6 February 2018, the President of the General Court decided not to grant the request for suspension of the interlocutory proceedings.
Law
General considerations
19      It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 17 and the case-law cited).
20      The first sentence of Article 156(4) of the Rules of Procedure 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 measures applied for’.
21      Accordingly, the judge hearing an application for interim relief may order 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 harm to the applicant’s interests, it must 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. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
22      In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
23      Having regard to the material in the case file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
24      In the circumstances of the present case, it is appropriate to examine first the subject matter of the application for interim measures and the nature of the information concerned.
Subject matter of the application for interim measures and the nature of the information concerned
25      By its application for interim measures, in order to avoid damage to its commercial interests, the applicant seeks to prevent the publication of the information concerned.
26      In that regard, in the first place, it is appropriate to note that, in its order of 12 June 2018, Nexans France and Nexans v Commission (C‑65/18 P(R), EU:C:2018:426), the Vice-President of the Court of Justice underlined that it is insufficient, for the purposes of being granted interim measures, to have claimed 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 (order of 12 June 2018, Nexans France and Nexans v Commission, C‑65/18 P(R), EU:C:2018:426, paragraph 22).
27      In the present case, in demonstrating the fulfilment of that condition, the applicant relies on four pleas in law, namely (i) the lack of legal basis justifying EFSA’s publication of the information concerned under Regulations No 1107/2009 and No 178/2002 and Implementing Regulation No 844/2012, (ii) the commission by EFSA of an act ultra vires to the extent that Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1) does not confer any competence on EFSA for the classification of substances, (iii) violation of its rights of defence, the applicant not having, in its view, been given a full, proper and effective opportunity to submit comments on the proposed reclassification of its substance, and (iv) infringement of Article 63 of Regulation No 1107/2009 concerning the possibility to assert the confidentiality of certain information submitted under that regulation.
28      It is thus apparent from the foregoing that the first three pleas raise questions of procedure that do not pertain to the nature of the information concerned. Only the last plea, relating to the alleged infringement of Article 63 of Regulation No 1107/2009, concerns, indirectly, the determination of the confidentiality of the information concerned.
29      However, the arguments put forward concern the possibility of requesting confidential treatment and not the assessment of the confidentiality of that information as such. Moreover, it is not apparent, at first sight, from the examination of the arguments on the alleged infringement of Article 63 of Regulation No 1107/2009 that those arguments are such as to convince the judge hearing the application for interim measures as to the existence of a prima facie case in that regard.
30      First, it should be noted, first of all, that, pursuant to Article 63(1) of Regulation No 1107/2009, confidential treatment can be requested for information submitted under that regulation. It does not seem, a priori, possible to categorise the information concerned in the case at hand as such in so far as it was prepared by EFSA in the context of the assessment of the application for the renewal of the approval of the substance at issue. In the English-language version of that regulation (annexes included), the verb ‘submit’ and derivations thereof (‘submitted’, ‘submitting’ and ‘submission’), understood in the same sense as that of Article 63 of Regulation No 1107/2009, appear 92 times, and are used 72 of those times in reference to the production by interested parties (applicants, third parties) of the dossier for applying for approval of an active substance or for an amendment to the conditions of an approval or of the list of tests and studies. The other instances concern for the most part the Member State Rapporteur, the other Member States and, very rarely, the Commission.
31      Next, contrary to what the applicant claims in the application for interim measures and in its observations on the Commission’s statement in intervention, it appears, at first sight, that Article 63(2)(b) of Regulation No 1107/2009 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.
32      Last, in its observations on the Commission’s statement in intervention, the applicant states that a combined reading of the relevant provisions should be adopted and, to that end, refers to Article 13(2) of Implementing Regulation No 844/2012.
33      Article 13(2) of Implementing Regulation No 844/2012 provides that, after giving the applicant two weeks to request, pursuant to Article 63 of Regulation No 1107/2009, that certain parts of the conclusion be kept confidential, EFSA is to make its conclusion available to the public, excluding any information in respect of which confidentiality has been granted by EFSA, unless there is an overriding public interest in its disclosure.
34      The applicant considers it apparent from a reading of Article 13(2) of Implementing Regulation No 844/2012 that the legislation allows the parties to request confidentiality for conclusions such as the one at issue in the present case. However, it appears, at first sight, that Article 13(2) of Implementing Regulation No 844/2012 merely refers to Article 63 of Regulation No 1107/2009 which allows, in line with what has been noted in paragraphs 30 and 31 above, confidential treatment to be requested for information submitted by interested parties which, in the case referred to in Article 13(2) of Implementing Regulation No 844/2012, appears in the conclusion referred to and not, as the applicant claims, that treatment to be applied to the conclusion itself. In other words, only ‘certain parts’ of that conclusion, namely, ‘any information in respect of which confidentiality has been granted’, under the understanding accorded to it in paragraphs 30 and 31 above, are covered by that provision.
35      Second, in its observations on the application for interim measures, EFSA indicates that it has nevertheless analysed the potential for the applicant’s commercial interests to be undermined following the disclosure of the information referred to — a prerequisite for being granted confidential treatment under Article 63 of Regulation No 1107/2009 — and concluded that it was not sufficient to impede the publication of the information concerned, especially in the light of the overriding factor of public health, in accordance with Article 39(3) of Regulation No 178/2002.
36      It must be pointed out that, in its observations on the Commission’s statement in intervention submitted in support of the EFSA’s conclusion, highlighting inter alia the relevance of Article 63 of Regulation No 1107/2009 in the context of this case, the applicant elected not to address that argument, merely stating that the fact that certain parts of that statement had not been refuted or commented on did not mean that it accepted them.
37      In the second place, and in any event, supposing that, first, the information concerned could have been subject to a request for confidentiality under Article 63 of Regulation No 1107/2009 and, second, EFSA had considered that information not to be of a confidential nature following its analysis in the context of the procedure established by that provision, the fact remains that the nature of the information concerned does not correspond to that for which the judge hearing the application for interim measures granted interim protection on numerous occasions in the context of requests relating to the disclosure of scientific data (see, to that effect, orders of 1 March 2017, EMA v PTC Therapeutics International, C‑513/16 P(R), not published, EU:C:2017:148; of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149; of 13 February 2014, Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission, T‑578/13 R, not published, EU:T:2014:103; and of 25 July 2014, Deza v ECHA, T‑189/14 R, not published, EU:T:2014:686).
38      In the cases that gave rise to the orders cited in paragraph 37 above, the judge hearing the application for interim measures was careful to recall that, 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 (order of 29 February 2016, Chemtura Netherlands v EFSA, T‑725/15 R, not published, EU:T:2016:128, paragraph 30).
39      However, the solutions adopted in the cases that gave rise to those orders 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 (order of 29 February 2016, Chemtura Netherlands v EFSA, T‑725/15 R, not published, EU:T:2016:128, paragraphs 34 and 35).
40      Such is the case here, with the applicant merely arguing 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 the substance at issue is characterised — erroneously in its view — as presenting a health risk, with regards to its customers, users of that substance, the general public and regulatory authorities (see, to that effect, order of 29 February 2016, Chemtura Netherlands v EFSA, T‑725/15 R, not published, EU:T:2016:128, paragraph 34).
41      Consequently, in accordance with the principles set out in paragraphs 26, 38 and 39 above, it is appropriate to examine the arguments of the applicant aimed at establishing the urgency of the interim measures requested without starting from the premiss that the information concerned is confidential.
Urgency
42      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Court. For the purpose of attaining that objective, urgency must generally 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. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
43      In addition, according to well-established case-law, there is urgency only if the serious and irreparable damage feared by the party seeking the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 24 and the case-law cited).
44      Moreover, according to the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
45      Thus, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
46      It is also settled case-law that, in order to determine whether all the conditions referred to in paragraphs 42, 43 and 45 above are fulfilled, the judge hearing the application for interim measures must have concrete and precise indications, supported by detailed, certified documentary evidence, which show the situation in which the party seeking the interim measures finds itself and enable the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 27 and the case-law cited).
47      While the application for interim measures may be supplemented on specific points by references to documents annexed to it, those documents cannot compensate for the lack of essential information in that application. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, those matters contained in the annexes or in the main application lodged in the main proceedings which could support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for those measures would, moreover, render ineffective Article 156(5) of the Rules of Procedure, which requires the application for interim measures to be made by a separate document (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 28 and the case-law cited).
48      It is in the light of those criteria that it should be examined whether the applicant has managed to demonstrate urgency.
49      The applicant claims, in essence, serious and irreparable harm due to (i) the immediate effects the contested decision would have, if its operation was not suspended, on its business in Brazil, (ii) the risk of immediate and irreversible damage to its reputation and to that of its products, (iii) the effects on its sales and on its market share in the European Union the loss of which would be irreversible due to the presence of strong competitors and obstacles of a structural or legal nature, (iv) the effects on one of its manufacturing sites, and (v) the knock-on effects on its market position and on its sales in the European Union and in third countries.
Seriousness of the damage
50      In the first place, so far as concerns the alleged damage due to the loss of income relating to the sale of thiram and thiram-related products, the applicant regards the contested decision as initiating a process which will ultimately lead to the withdrawal of that substance from the EU market, with the consequence that the applicant will lose, first, the entirety of its income and market share in the European Union relating to that substance and thiram-based products and, second, all of its customers of those products.
51      However, as EFSA rightly notes, it must be stated that, at EU level, there is no direct causal link between a decision such as the contested decision and the final decision on the renewal of the approval of an active substance. According to recital 19 and Article 3(12) of Regulation No 178/2002, the Commission is not bound by EFSA’s opinions. Suspension of operation of an EU act is justified only where that act constitutes the decisive cause of the alleged serious and irreparable harm (see, to that effect, order of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 41 and the case-law cited). At this stage and in view of the elements from the case file, the harm invoked, which would allegedly stem from a prohibition on the marketing of the substance at issue in the European Union, is thus purely hypothetical in nature, which, pursuant to the case-law recalled in paragraph 43 above, cannot justify the grant of interim measures.
52      In any event, it should be pointed out that the alleged loss of market in question would entail damage of a financial nature. Regarding the seriousness of the financial damage alleged, it is settled case-law that the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before final decision in the main action (see order of 30 April 2010, Xeda International v Commission, T‑71/10 R, not published, EU:T:2010:173, paragraph 42 and the case-law cited).
53      First, it is settled case-law that the assessment of the serious nature of such damage is carried out in the light of, inter alia, the size and turnover of the undertaking and the characteristics of the group to which it belongs (see order of 15 November 2011, Xeda International v Commission, T‑269/11 R, not published, EU:T:2011:665, paragraph 20 and the case-law cited; see also, to that effect, order of 15 April 1998, Camar v Commission and Council, C‑43/98 P(R), EU:C:1998:166, paragraph 36 and the case-law cited).
54      In addition, it must be recalled that, also according to settled case-law, it has been found, on the one hand, that, with regard to a loss corresponding to less than 10% of turnover of undertakings active in highly regulated markets, the financial difficulties which those undertakings risked suffering do not appear to be such as to threaten their very existence (order of 15 November 2011, Xeda International v Commission, T‑269/11 R, not published, EU:T:2011:665, paragraph 21; see also, to that effect, order of 11 April 2001, Commission v Bruno Farmaceutici and Others, C‑474/00 P(R), EU:C:2001:219, paragraph 106) and, on the other, regarding a loss representing almost two thirds of the turnover of those undertakings, while acknowledging that the financial difficulties they underwent could have been such as to threaten their very existence, it has nevertheless been underlined that, in a highly regulated sector where major investment is often required and the competent authorities may be led to intervene when public health risks become apparent, for reasons which cannot always be foreseen by the undertakings concerned, it was for those undertakings, if they were not to bear themselves the loss resulting from such intervention, to protect themselves against its consequences by adopting an appropriate policy (see order of 16 June 2016, ICA Laboratories and Others v Commission, C‑170/16 P(R), not published, EU:C:2016:462, paragraph 29 and the case-law cited).
55      In the case at hand, the applicant provides, inter alia, the figures reproduced in Table 1 below concerning the sales of the substance at issue.
Table 1
% turnover of the group
% turnover of the applicant
2015
EU: [0-5] (2) %
World: [0-5] %
EU: [5-10] %
World: [5-10] %
2014
EU: [0-5] %
World: [0-5] %
EU: [0-5] %
World: [5-10] %
56      In the light of that data, it is sufficient to recall that, in accordance with the case-law cited in paragraph 54 above, a loss corresponding to less than 10% of turnover does not appear to be such as to threaten the very existence of the company or group in question.
57      The turnover relating to the sale of the substance at issue thus represents a small part of the turnover assessed both as regards the applicant and as regards the group to which it belongs (see, to that effect and by analogy, order of 11 April 2001, Commission v Bruno Farmaceutici and Others, C‑474/00 P(R), EU:C:2001:219, paragraph 105).
58      Therefore, the loss of turnover or profit generated from those sales cannot alone suffice for the alleged damage to be regarded as serious within the meaning of the case-law cited in paragraph 53 above.
59      Second, as has been highlighted by the applicant, however, it was accepted, in the order of 28 April 2009, United Phosphorus v Commission (T‑95/09 R, not published, EU:T:2009:124, paragraph 69), that, when evaluating the seriousness of the damage, the judge hearing the application for interim measures cannot confine himself to having recourse, in a mechanical and rigid manner, solely to the relevant turnover, but must also examine the circumstances of each case and bring them into relation, when taking his decision, with the harm occasioned in terms of turnover.
60      In the analysis of the seriousness of the damage in that case, therefore, account was taken of the serious economic and financial crisis which afflicted the world economy for several months and impacted the value of the group to which the applicant company belonged. The judge hearing the application for interim measures thereby concluded that, in view of those special circumstances, the applicant company had established the gravity of the harm which it would suffer if the interim measures sought were not granted.
61      It has to be pointed out that the applicant does not invoke such an exceptional situation.
62      Nevertheless, even though the applicant does not clearly identify the circumstances which, in the case at hand, would be relevant in the examination of the seriousness of its damage, it seems that, amid its submissions relating to that aspect of the damage, it advances a certain number of elements which could be regarded as falling within those specific circumstances of the case at hand.
63      It is therefore appropriate to examine its claims relating to the envisaged consequences on its thiram-related business on account of, first, the application of the Brazilian legislation 7.802/89 and, second, the knock-on effects on its market position and on its sales in the European Union and in third countries.
64      Thus, the applicant claims, as a first step, that the proposal to classify thiram as a carcinogenic substance will result in the automatic withdrawal of its products from the Brazilian market.
65      In that regard, first, it should be noted that, in general, the reduction of sales in countries not belonging to the European Union as a consequence of the adoption of a decision banning or restricting the use of a substance, by reason of the fact that some non-member countries are likely to follow the EU rules cannot be taken into account in the assessment of the seriousness of the alleged damage, since such measures would be the direct consequence not of the contested decision, but of a decision taken by the authorities of each non-member country in the exercise of their absolute discretion (see, to that effect, order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 56 and the case-law cited). The same also applies, a fortiori, to the contested decision, which does not prejudge the final decision on the renewal of approval of the substance at issue, as has been found in paragraph 51 above.
66      Second, it must be stated that the applicant has not established that the interim measures sought, assuming they are granted, would prevent the Brazilian authorities from ordering the withdrawal of its products from their territory. Consequently, it has not demonstrated that suspension of operation of the contested decision would be liable to prevent the alleged damage from materialising (see, to that effect, order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 56 and the case-law cited).
67      In that context, it is worth noting that, as was highlighted by EFSA in the contested decision and recalled in its observations on the present application for interim measures, the Pest Management Regulatory Agency (PMRA, Canada) published, on 29 February 2016, a draft decision concluding that thiram posed a cancer risk.
68      Accordingly, the consequences expected by the applicant for its thiram-related business as a result of the application of the Brazilian legislation 7.802/89 do not constitute a special circumstance enabling a conclusion as to the seriousness of the damage.
69      The applicant claims, as a second step, that the full publication of the documents at issue, in accordance with the contested decision, will lead to a ‘domino effect’ in the European Union and in third countries as authorities within the Union and those of the United States and Canada will follow EFSA’s conclusion.
70      In that regard, it is sufficient to refer to the considerations set out in paragraphs 65 to 67 above, since, first, none of those authorities are legally bound by the contested decision and, second, the applicant puts forward nothing regarding the effects of the requested measures on the decision-making process of those authorities.
71      Accordingly, the consequences the applicant expects for its thiram-related business as a result of the ‘domino effect’ caused by the full publication of the documents at issue, in accordance with the contested decision, in the European Union and in third countries do not constitute a special circumstance enabling a conclusion as to the seriousness of the damage.
72      It must therefore be held that the case at hand does not exhibit any special circumstance which, assessed in the light of the relevant turnover, leads the judge hearing the application for interim measures to conclude as to the seriousness of the alleged damage due to the risk, for the applicant, of the loss of income relating to the sale of thiram and thiram-related products.
73      In the second place, so far as concerns the seriousness of the alleged damage due to the risk of adverse effects on its reputation, the applicant argues that the contested decision will harm the reputation of its products with the substance as a base at issue as well as its own reputation.
74      First, to the extent that the applicant fears that the contested decision, on the one hand, will compromise the reputation of its thiram-based products by stigmatising that substance and, on the other hand, calls into question more generally its reputation, that of its other products, its experience in the area of plant protection products and its ability to provide safe products of high quality, it should be noted that the withdrawal of a plant protection product from the market — and, a fortiori, the full publication of the documents at issue, in accordance with the contested decision, which does not prejudge the final decision concerning the renewal of approval of the substance at issue — is not necessarily harmful to the reputation of the undertaking concerned as a whole.
75      In that regard, it is common knowledge that many undertakings active in the market at issue have had their products withdrawn from the market, and those undertakings or their products cannot be deemed to be stigmatised. The regulatory authorities and the operators in the sector concerned, which are familiar with the regulatory framework, tend to view a decision not to authorise a plant protection product as a normal part of a regulatory procedure. Such a decision may be regarded as being simply the result of scientific developments and improvement in research methods (see, to that effect, order of 15 November 2011, Xeda International v Commission, T‑269/11 R, not published, EU:T:2011:665, paragraph 43 and the case-law cited). It is not apparent from the material in the case file, however, that those findings would be irrelevant in the context of the mere publication of the information concerned, when no final decision has yet been adopted on the renewal of approval of the substance at issue.
76      Second, it should be noted that, if full publication of the documents at issue did actually result in harm to the applicant’s reputation, it would likely have already been caused the day the redacted version of those documents was published in so far as, as EFSA highlights in its observations on the application for interim measures, although the blackened parts of the documents refer mostly to the proposal to classify the substance as a carcinogen category 2 H351, that conclusion could be drawn anyway from the overall context of the documents by a person familiar with the topic. In addition, it must be recalled that the PMRA published, on 29 February 2016, a draft decision concluding that thiram presented a cancer risk. In the application for interim measures, however, the applicantremained silent as to any effects the publication of that document might already have had on its reputation.
77      In that context, it should be pointed out that, contrary to what is required by the case-law mentioned in paragraphs 43 to 46 above, the applicant does not specify how a suspension of operation of the contested decision, ordered by the judge hearing the application for interim measures, would put an end to the fears that have already been caused by the publication both of the redacted version of the documents and of the PMRA’s draft decision (see, to that effect, order of 15 November 2011, Xeda International v Commission, T‑269/11 R, not published, EU:T:2011:665, paragraph 42 and the case-law cited).
78      Similarly, so far as concerns the applicant’s claim that, even in the absence of a formal regulatory limitation on the use of thiram and thiram-based substances which would be imposed following classification as a carcinogenic substance, the contested decision is highly likely to impact seriously on the confidence of users and customers in products with that substance as base and to raise significant concerns in the minds of consumers as to its safety, it is not apparent from the material in the case file that a suspension as an interim measure ordered by the judge hearing the application for those measures would be a measure that would prevent such a loss of confidence.
79      In that regard, the applicant merely asserts that there are already indications being given by downstream customers of a change in their purchasing behaviour and that, on the one hand, supermarkets will no longer include thiram in their list of approved active ingredients to be used by their supplier farmers and, on the other hand, if thiram is not included in the lists of supermarkets such as Tesco, Lidl or Aldi, or of organisations such as the Rainforest Alliance, Fairtrade or the Sustainable Agriculture Network, which issue global guidelines on what products farmers may use on their crops, farmers growing crops around the world will not be allowed to use thiram if they wish to continue supplying those supermarkets. As has been highlighted in paragraph 76 above, however, the identification of the thiram’s carcinogenicity precedes the adoption of the contested decision and, consequently, the applicant has failed to demonstrate that the publication in full of the information concerned could be regarded as the decisive cause of the consequences it describes.
80      Accordingly, the elements from the case file do not enable a conclusion as to the existence of damage as a result of harm of sufficient seriousness being caused to the applicant’s reputation, as is required by the case-law.
81      In the third and last place, so far as concerns the seriousness of the alleged damage due to the risk of impact on one of its manufacturing sites, the applicant states that it is the owner of a manufacturing site in [confidential], (3) which is largely dedicated to the production of thiram for use in the European Union and in third countries. It adds that that site operates [confidential], currently used to produce [confidential]. It asserts, however, that the site’s economic and industrial viability is at risk, that certain production units [confidential] since [confidential] will be affected, representing [confidential], that the global production costs of the site will increase, which will reduce the applicant’s competitiveness on the market and that the contested decision will have an impact on [confidential] of the site as well as on distributors, service providers for logistics, repacking, shipment and subcontracting.
82      As a preliminary point, it must be noted that the contested decision pertains to the publication in full of documents of which only redacted versions have currently been disseminated. The causal link between the implementation of that decision and the occurrence of the alleged harm in respect of the site, however, is not evident from the applicant’s submissions. The applicant appears to assimilate the effects of the publication of the documents at issue with those that might potentially be had following a ban on marketing the active substance thiram within the European Union. Thus, as has already been highlighted in paragraph 51 above, the contested decision does not equate to a decision rejecting the renewal of approval of the substance at issue. Consequently, the relationship between the contested decision and the harm feared by the applicant in regard to the effects on its manufacturing site in [confidential] appears, if not hypothetical, at least not sufficiently demonstrated within the meaning of the case-law cited in paragraphs 42 to 47 above.
83      In any event, supposing that such a relationship exists, the alleged harm due to the expected impact of the contested decision on the [confidential] manufacturing site is pecuniary in nature.
84      In that regard, it should be recalled that, in accordance with the case-law cited in paragraph 52 above, regarding the seriousness of such harm, the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before final decision in the main action.
85      First, however, the applicant’s fear is not about the imperilling of its existence, but about the viability of a manufacturing site. In that regard, contrary to what the case-law cited in paragraphs 43 to 46 above requires, the applicant provides no element indicating that there is any threat to its survival due to the alleged risks related to the site’s viability.
86      Second, the site concerned produces the substance at issue not exclusively for use within the European Union, but also for use outside the Union. In that regard, as has been indicated in paragraph 82 above, it may be noted, first of all, that the contested decision does not ban the production of the substance at issue within the Union and that the ban on selling both that substance and products with it as a basis is, at this stage, a hypothetical event. Furthermore, in the application for interim measures, the applicant provides a certain number of figures concerning the value of the sales related to that substance achieved outside the Union. Therefore, even in the event that the use of that substance should be limited, or indeed banned, within the Union, the production of thiram by that site for use outside the Union would not be affected. Contrary to the requirements set by the case-law recalled in paragraphs 43 to 46 above, however, the consequences of such a scenario on that site’s viability are not evident from the case file.
87      Third, and similarly, the applicant does not provide the judge hearing the application for interim measures with the essential material enabling him to examine the seriousness of the alleged impact, such as information regarding the possibilities of redeploying the staff concerned or of converting the manufacturing processes of its production chain within that site.
88      Therefore, the impact on one of its manufacturing sites cannot alone suffice for the alleged damage to be regarded as serious within the meaning of the case-law cited in paragraph 52 above.
89      Consequently, the applicant has not demonstrated the seriousness of the alleged financial damage due to the risk, first of all, of loss of its sales and market share, next, of harm to its reputation and, last, of impact on one of its manufacturing sites.
90      Furthermore, it should be pointed out that, while it is apparent from the case-law that it cannot be excluded that financial harm which is objectively significant and which allegedly results from the obligation to make a final commercial choice of some magnitude within a disadvantageous timescale could be considered as ‘serious’, or even that the seriousness of such harm could be considered as obvious, even in the absence of information concerning the size of the undertaking concerned (see, to that effect, order of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 33), the applicant does not put forward any specific matter in that regard. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, those matters. Consequently, the alleged damage due to the risk of (i) adverse effects on its turnover, (ii) loss of market share, and (iii) impact on one of its manufacturing sites cannot be categorised as financial harm which is objectively significant within the meaning of that case-law.
91      In the light of the foregoing, it must be concluded that the applicant has not established the seriousness of the damage alleged.
Irreparability of the damage
92      Neither does it appear, moreover, that the damage alleged in the present case can be categorised as irreparable.
93      As a preliminary point, it should be emphasised again that the causal link between the implementation of the contested decision and the occurrence of irreparable damage, as alleged by the applicant, is not always evident from the applicant’s submissions. Such damage often seems to stem from a prohibition on the marketing of the substance at issue, an effect separate from the contested decision (see paragraphs 51 and 82 above). Consequently, the arguments put forward to demonstrate the irreparable nature of the damage appear, for the most part, to have no connection whatsoever with the actual publication of the information concerned, in accordance with the contested decision.
94      In the first place, it is well-established case-law that damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even hardly reparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. Any such damage could, in particular, be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see orders of 28 November 2013, EMA v Intermune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 48 and the case-law cited, and of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 33 and the case-law cited).
95      In the event of such damage, the interim measure sought is justified if it appears that, without that measure, the applicant would be in a position that could imperil its existence before final decision in the main action (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 81 and the case-law cited). Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation (see order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 34 and the case-law cited).
96      In the present case, it is apparent from the analysis carried out by the judge hearing the application for interim measures in paragraphs 52 to 72 above, concerning the alleged damage due to the risk of adverse effects on its turnover, that the applicant is not in such a situation.
97      In the same way, so far as concerns the arguments raised in relation to the viability of the [confidential] manufacturing site, it has already been concluded that the application for interim measures did not contain certain essential information regarding the possibilities of redeploying [confidential] or of reconverting [confidential] within that plant. Such information is necessary for the examination by the judge hearing the application for interim measures of the irreparable nature of the damage alleged. In any event, only the applicant’s survival is relevant in the context of the assessment of the irreparable nature of the damage, in accordance with the case-law cited in paragraph 95 above. As has been noted in paragraph 85 above, however, the applicant’s fear is not about the imperilling of its existence, but about the viability of a manufacturing site.
98      In the second place, although, in the case-law, account was taken also of the fact that, were the measure sought not granted, the market share of the party seeking the measure would be irremediably affected, it must be made clear that that situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also serious in nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders (see order of 30 April 2010, Xeda International v Commission, T‑71/10 R, not published, EU:T:2010:173, paragraph 43 and the case-law cited). An applicant which invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that share is impossible by reason of obstacles of a structural or legal nature (see order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 35 and the case-law cited).
99      In the case at hand, in the analysis of the potential loss of the European Union market for thiram and thiram-based products in view of the sales generated by that business, it has been concluded that the market share the loss of which is feared by the applicant is small (see paragraphs 58 and 72 above).
100    In any event, the applicant has not demonstrated, to the requisite legal standard, the existence of obstacles of a structural or legal nature making impossible the regaining of a significant portion of that share.
101    First, although the applicant cites the existence of obstacles of a structural, legal and regulatory nature, they are presented so as to explain its inability to recoup the market share, turnover and income it claims it will lose even in the event that, after having withdrawn the approval for the applicant’s product, the Federative Republic of Brazil was to change its attitude and reinstate the product, thereby permitting the applicant to market thiram once again on the market. In that regard, it is thus sufficient to reiterate the fact that any decisions taken by the Brazilian authorities are, in that context, irrelevant (see paragraphs 63 to 68 above).
102    Second, in its pleadings on the obstacles of a structural or legal nature preventing it from regaining a significant proportion of its market share and recouping lost turnover and income, the applicant recalls that international organisations whose certifications are generally favoured, such as the Rainforest Alliance, will add thiram to the list of banned substances and ban or restrict its use worldwide, including within the European Union. In that connection, it should be recalled that as thiram was identified as carcinogenic before the adoption of the contested decision (see paragraph 67 above), evidence of the existence of such an obstacle should already exist. Contrary to what the case-law cited in paragraphs 43 to 46 above requires, however, the applicant simply makes mere allegations that are unsupported by solid documentary evidence (see paragraph 79 above).
103    In the third place, the applicant claims, in essence, that the publication of the information concerned and its continued availability to the public on the internet will irreversibly change the reputation of its products, which will be seen as dangerous by consumers and other regulators and will inevitably trigger a shift in the position of the substance at issue on the market.
104    It is necessary to recall that it has been concluded in paragraph 80 above that the elements from the case file do not enable a conclusion as to the existence of damage as a result of harm of sufficient seriousness being caused to the applicant’s reputation, as is required by the case-law. Therefore, even if the applicant were to sustain damage, it would be of a relative seriousness, which influences the means necessary for its possible repair.
105    In accordance with the case-law cited in paragraphs 43 to 46 above, it is for the party seeking the interim measures to provide the judge hearing the application for those measures the information necessary for it to carry out the assessment inter alia of the irreparable nature of the alleged damage. Thus, mere assertions do not suffice to satisfy those judicial criteria (see order of 15 November 2011, Xeda International v Commission, T‑269/11 R, not published, EU:T:2011:665, paragraph 38 and the case-law cited). In the present case, the applicant relies, exclusively, on documents concerning reactions relating to the conclusion that the chemical substance glyphosate is potentially carcinogenic. However, and without it being necessary to rule on the probative force that the documents provided could have, it is sufficient to note, as EFSA does in its observations on the application for interim measures, that the situation relating to that substance cannot be compared with that of the present case in so far as, first, it concerns a far more advanced stage of the procedure where it is a question of the effects of a decision adopted by the Commission and, second, no mention is made of the effects of the publication of EFSA’s peer review on that substance’s reputation.
106    Therefore, none of the documents made available to the judge hearing the application for interim measures enable, at first sight, the applicant’s assertions as to its impossibility of recouping the abovementioned market share to be confirmed. The applicant merely pleads difficulties in recovering market share because there may be a loss of confidence in its products yet does not, however, establish the existence of obstacles of a structural or legal nature that would prevent it from recovering that confidence from its customers and consumers and thus from regaining a significant proportion of that market share from them following the putting into place, in particular, of appropriate publicity measures (see, to that effect, order of 11 April 2001, Commission v Gerot Pharmazeutika, C‑479/00 P(R), EU:C:2001:224, paragraph 92). Thus, the applicant confines itself to a bald assertion that no advertising campaign would be successful at overcoming the negative publicity engendered by the contested decision. In that context, it must be observed that, despite the PMRA’s identification of a potential carcinogen in thiram (see paragraph 67 above), the applicant does not appear to have suffered a loss of confidence either from its clients or from its consumers. In the absence of any evidence in that regard, however, it is not evident whether the applicant took measures to mitigate such a risk following notification of the Canadian agency’s conclusions.
107    In the fourth place, the applicant considers that the loss of its market share will be irreversible in so far as its competitors have other products that will enable them to recoup that market share and its customers within the European Union, whereas it does not have substitute products. Moreover, those competitors have considerable financial resources which will allow them to conduct an aggressive trade and pricing policy in order to retain any customer they might gain when thiram is no longer available on the market.
108    In that regard, it is sufficient to note that, at first sight, the situation predicted by the applicant does not correspond to that with which it might possibly be confronted in the case at hand. The analysis of the allegedly irreparable nature of the damage it cites would make sense only if the contested decision ordered that the marketing of thiram within the European Union be banned. That is not the subject matter of the contested decision in the present case, however (see paragraph 93 above).
109    In the fifth and last place, it must nevertheless be pointed out that harm of a financial nature may be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (see order of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 49 and the case-law cited).
110    It is true that the uncertainty of obtaining compensation for pecuniary damage if an action for damages is brought cannot in itself be regarded as a factor capable of establishing that such damage is irreparable within the meaning of the case-law of the Court of Justice. At the interlocutory stage, the possibility of subsequently obtaining compensation for pecuniary damage if an action for damages is brought following annulment of the contested measure is necessarily uncertain. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the final future decision that will be made in the main action (in this case an action for annulment), to which the interlocutory proceedings are an adjunct (see order of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 50 and the case-law cited).
111    However, the situation is different where it is already clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that harm by bringing an action for damages (see order of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 51 and the case-law cited).
112    However, in the present case, first, it is not apparent from the case file that, in view of the nature and the foreseeable manner in which the alleged damage could occur, the latter may not be compensable since it is not possible for it adequately to be identified or quantified and that, in practice, it will not therefore be possible to make it good by bringing an action for damages. On the contrary, the applicant puts forward a certain amount of accounting information enabling, at first sight, that damage not only to be identified, but also to be quantified in an adequate manner.
113    Second, the applicant considers that compensation alone, obtained by bringing an action for damages, will not suffice to restore the applicant to the position it had. Restitutio in integrum is not possible in so far as, in the applicant’s view, no amount of damages can compensate it for the reputational damage its product will suffer during the period preceding the delivery of any judgment annulling the contested decision.
114    In that regard, and without it being necessary to rule on the alleged impossibility for the EU Court to issue a judgment in the context of an action for damages allowing such damage to be made good in an adequate manner, it is sufficient to recall that, first, it has been held in paragraph 80 above that the elements from the case file do not enable a conclusion that the damage allegedly suffered as a result of harm being caused to the applicant’s reputation was of sufficient seriousness, within the meaning of the case-law. Second, as is apparent from paragraphs 103 to 106 above, it has not been proved that, in the event that it were necessary, the applicant could not restore its position on the market by other means.
115    In the light of the foregoing, it is apparent that the applicant has not demonstrated that the condition relating to urgency, within the meaning of the case-law set out in paragraph 42 above, was satisfied.
116    In those circumstances, the conditions for granting suspension of operation and interim measures being cumulative, the application for interim measures must be rejected for lack of urgency, without it being necessary to examine in greater detail the condition relating to the establishment of a prima facie case, or to weigh up the interests involved.
117    By virtue of Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The order of 19 September 2017 delivered in Case T‑621/17 R is cancelled.
3.      The costs are reserved.
Luxembourg, 12 October 2018.
E. Coulon
M. Jaeger
Registrar
President
*      Language of the case: English.
1      The present order is published by extracts.
2      Confidential data omitted.
3      Confidential data omitted.