ORDER OF THE VICE-PRESIDENT OF THE COURT
10 September 2019 (*)
(Appeal — Order for interim measures — Competition — Agreements, decisions and concerted practices — Market for biofuels — Manipulation of ethanol benchmarks — Settlement procedure — Access to allegedly confidential documents — Urgency — Serious and irreparable damage — Prima facie case)
In Case C–318/19 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 18 April 2019,
Lantmännen ek för, established in Stockholm (Sweden),
Lantmännen Agroetanol AB, established in Norrköping (Sweden),
represented by S. Perván Lindeborg and A. Johansson, advokater, and R. Bachour, Solicitor,
appellants,
the other party to the proceedings being:
European Commission, represented by F. Jimeno Fernández, G. Conte and C. Urraca Caviedes, 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 their appeal, Lantmännen ek för and Lantmännen Agroetanol AB seek to have set aside the order of the President of the General Court of the European Union of 2 April 2019, Lantmännen and Lantmännen Agroetanol v Commission (T‑79/19 R, not published, EU:T:2019:212; ‘the order under appeal’), by which he dismissed their application for suspension of the operation of Commission Decision C(2019) 743 final of 28 January 2019 on an objection to disclosure submitted by Lantmännen ek för and Lantmännen Agroetanol AB pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29) (Case AT.40054 — Ethanol Benchmarks; ‘the decision at issue’).
Background to the dispute, procedure before the General Court and the order under appeal
2        On 7 December 2015, the European Commission decided, pursuant to Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 (OJ 2008 L 171, p. 3) (‘Regulation No 773/2004’) to initiate proceedings in Case AT.40054 — Ethanol Benchmarks against the appellants and two other undertakings.
3        On 27 April 2016, the Commission asked the appellants whether they wished to enter into settlement discussions, pursuant to Article 10a of Regulation No 773/2004. On 10 May 2016, the appellants confirmed their interest in participating in such discussions.
4        On 21 June 2016, a first settlement meeting was held, during which the Commission invited the appellants to submit written comments on its overview in Case AT.40054 — Ethanol Benchmarks.
5        To this end, the appellants submitted, on 31 August, 3 October and 18 December 2016, respectively, three non-papers (‘the non-papers’).
6        On 28 February 2018, the Commission informed the appellants that the other two undertakings concerned by the Commission’s investigation in Case AT.40054 — Ethanol Benchmarks had decided to withdraw from the settlement procedure.
7        On 16 July 2018, the appellants submitted their settlement submission to the Commission.
8        On 24 July 2018, the Commission adopted a statement of objections addressed to the other two undertakings which had decided to withdraw from the settlement procedure. They had access to the Commission’s file, including the appellants’ settlement submission, under the conditions provided for in point 35 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1; ‘the settlement notice’).
9        On 14 September 2018, one of those undertakings made a request to the Commission to access all of the documents exchanged between the Commission and the appellants in the course of the settlement procedure until the appellants submitted their settlement submission.
10      On 21 September 2018, the Commission rejected that request. On 25 September 2018, the undertaking concerned referred the matter to the hearing officer pursuant to Article 7 of Decision 2011/695.
11      On 9 November 2018, the Commission informed the appellants that the hearing officer intended to allow the disclosure of the documents mentioned in paragraph 9 of the present order and requested them to provide non-confidential versions of those documents.
12      On 20 November 2018, the appellants provided non-confidential versions of some of those documents, but refused to consent to the disclosure of the non-papers and the minutes of the meetings or calls of 26 May, 21 June, 9 September 2016 and 7 March 2018 (‘the minutes’).
13      On 22 November 2018, the Commission repeated its request that the appellants should provide non-confidential versions of the non-papers and the minutes.
14      On 30 November 2018, the appellants provided non-confidential versions of the non-papers (‘the redacted non-papers’). However, they did not provide non-confidential versions of the minutes.
15      On 5 December 2018, the appellants referred their objections to the planned disclosure of the redacted non-papers and the minutes to the hearing officer pursuant to Article 8(2) of Decision 2011/695.
16      On 28 January 2019, the hearing officer adopted the decision at issue. According to Article 1 thereof, the Commission was entitled to proceed with the restricted disclosure of the redacted non-papers and of the minutes to the undertaking which had requested access to them, under the conditions set out in point 35 of the settlement notice.
17      By application lodged at the Registry of the General Court on 12 February 2019, the appellants brought an action for annulment of the decision at issue.
18      By a separate document lodged at the Registry of the General Court on the same day, the appellants lodged an application for interim measures pursuant to Articles 278 and 279 TFEU, which was aimed, in essence, at suspending the operation of the decision at issue and ordering the Commission to pay the costs.
19      At the request of the appellants, on 14 February 2019, the President of the General Court, without first hearing the Commission, adopted an order pursuant to Article 157(2) of the Rules of Procedure of the General Court requiring the Commission to suspend the operation of the decision at issue.
20      On 2 April 2019, the President of the General Court adopted the order under appeal, by which he dismissed the application for interim measures.
21      To that end, the President of the General Court examined at the outset whether the condition of urgency was satisfied.
22      In that regard, in paragraph 33 of the order under appeal, the President of the General Court noted that where it was necessary to assess whether it was urgent to grant interim measures in order to prevent the disclosure of allegedly confidential information, that assessment overlaps to some extent with the assessment of the existence of a prima facie case linked to the confidential nature of the information, as claimed by the party seeking those measures.
23      Recalling, in paragraph 34 of the order under appeal, the General Court’s case-law on the conditions under which information comes within the ambit of professional secrecy, the President of the General Court stated, in essence, in paragraphs 35 and 36 of that order, that the judge hearing an application for interim measures is in principle required, when examining the condition of urgency, to start from the premiss that the information the publication of which the appellants wish provisionally to prevent constitutes business secrets or is covered by professional secrecy only where (i) an applicant alleges that that information constitutes business secrets or is covered by professional secrecy and (ii) that allegation satisfies the condition relating to a prima facie case.
24      After finding that the appellants had not alleged that the redacted non-papers and the minutes contained business secrets or revealed information which was, by its very nature, confidential, in paragraph 40 of the order under appeal, the President of the General Court considered that he was not required, when examining the condition of urgency, to start from the premiss that the information was confidential.
25      The President of the General Court, in paragraph 41 of the order under appeal, held that, in any event, even if the assessment had to start from the premiss that the redacted non-papers and the minutes contain business secrets or are otherwise confidential, the application for interim measures could not be granted, as the appellants had not demonstrated that the condition of urgency had been satisfied.
26      In this respect, he found, in essence, that the appellants had not substantiated their claim that they would suffer serious and irreparable harm as a result of the disclosure of the redacted non-papers and the minutes.
27      In those circumstances, the President of the General Court, by the order under appeal, dismissed the application for interim measures on the ground, set out in paragraph 54 of the order under appeal, that the condition of urgency had not been satisfied, considering, moreover, that it was not necessary to examine the condition relating to a prima facie case or the balance of interests.
Forms of order sought and procedure before the Court
28      By their appeal, the appellants claim that the Court should:
–        set aside the order under appeal;
–        order the suspension of operation of Article 1 of the decision at issue until the General Court has ruled on the application for annulment filed in Case T‑79/19;
–        in the alternative, refer the case back to the President of the General Court; and
–        order the Commission to bear the costs incurred before both the Court of Justice and the General Court.
29      The Commission contends that the Court should:
–        dismiss the appeal in its entirety; and
–        order the appellants to pay the costs.
30      By a separate document lodged at the Court Registry on 18 April 2019, the appellants lodged an application for interim measures pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court.
31      By letter of 25 April 2019, the Court Registry asked the Commission if it could refrain from proceeding, in accordance with Article 1 of the decision at issue, with the restricted disclosure of the redacted non-papers and the minutes pending delivery of the final order of the Court in the appeal proceedings in the present case.
32      By letter dated 26 April 2019, the Commission informed the Court that it would not disclose those documents pending delivery of the order to be made by the Court.
The appeal
33      The appellants put forward two grounds in support of their appeal.
The first ground of appeal
Arguments
34      By their first ground of appeal, the appellants submit that the President of the General Court, in paragraphs 33 to 56 of the order under appeal, made several errors of law in his assessment of the condition of urgency.
35      First, the appellants argue that the President of the General Court, in paragraphs 37 to 40 of the order under appeal, erred in law by not starting from the premiss that the redacted non-papers and the minutes were confidential.
36      In that connection, the appellants claim that the findings made by the President of the General Court in paragraphs 37 and 38 of the order under appeal are ‘erroneous and inaccurate’ because they had expressly stated in their application for interim measures that the redacted non-papers and the minutes were confidential.
37      Moreover, according to the appellants, the distinction made in the order under appeal between the documents and the information they contain is ‘erroneous, and contrary to established case-law’, in so far as, in the cases giving rise to the orders of the President of the General Court of 1 September 2015, France v Commission (T‑344/15 R, EU:T:2015:583), and of 20 July 2016, MSD Animal Health Innovation and Intervet international v EMA (T‑729/15 R, not published, EU:T:2016:435), a presumption of confidentiality covering documents in their entirety had been adopted.
38      Secondly, the appellants submit that the President of the General Court erred in law, in paragraphs 46 to 48 of the order under appeal, by holding that the disclosure of the redacted non-papers and the minutes was unlikely to constitute the decisive cause of any harm, given that the disclosure of the settlement submission had already taken place.
39      According to the appellants, records of settlement discussions do not have the same legal protection against dissemination and use as the settlement submission. Therefore, disclosure of the redacted non-papers and the minutes would be more likely to cause the appellants harm than the regulated disclosure of the settlement submission.
40      Thirdly, the appellants criticise the President of the General Court for having applied, in paragraph 49 of the order under appeal, an excessively strict test for establishing harmful information.
41      In this respect, the appellants submit, in essence, that the rules governing the settlement procedure preclude the disclosure of the content of settlement discussions. Thus, relying on the orders of the President of the General Court of 1 September 2015, France v Commission (T‑344/15 R, EU:T:2015:583), and of 20 July 2016, MSD Animal Health Innovation and Intervet international v EMA (T‑729/15 R, not published, EU:T:2016:435), the appellants argue that the content of the settlement discussions should benefit from a presumption of confidentiality.
42      Fourthly and finally, the appellants submit that the President of the General Court erred in law, in paragraphs 46 to 53 of the order under appeal, by failing to take into account the inherently sensitive nature of communications made by a party in the context of settlement discussions.
43      In this respect, the appellants argue, in essence, that in so far as the written communications made in the context of settlement discussions contain self-incriminating statements, they must benefit from a presumption of confidentiality. The appellants add that the EU judicature has adopted presumptions of confidentiality for certain categories of documents, in particular in the case giving rise to the order of the President of the General Court of 20 July 2016, MSD Animal Health Innovation and Intervet international v EMA (T‑729/15 R, not published, EU:T:2016:435). According to the appellants, the question whether a presumption of confidentiality should be attached to written communications made in the context of settlement discussions, which in themselves do not constitute business secrets, has never been assessed by the EU judicature. Accordingly, the President of the General Court must assess a claim that the documents are confidential in their entirety, and assess the prima facie case for that argument.
44      The Commission contests those arguments.
Assessment
45      As regards, in the first place, the appellants’ line of argument that the findings of the President of the General Court in paragraphs 37 and 38 of the order under appeal are ‘erroneous and inaccurate’, since, in their application for interim measures, the appellants had expressly stated that the redacted non-papers and the minutes were confidential, it should be noted that the President of the General Court pointed out in paragraph 34 of that order that it follows from the case-law of the General Court that the examination as to whether information comes within the ambit of professional secrecy generally comprises three stages, namely, first, that the information must be known only to a limited number of persons; secondly, that its disclosure must be likely to cause serious harm to the person who provided it or to third parties; and, thirdly, and last, that the interests liable to be harmed by disclosure must, objectively, be worthy of protection.
46      The President of the General Court also pointed out, in paragraph 35 of the order under appeal, that it is only when, first, the applicant for interim measures alleges that the information whose publication he wishes provisionally to prevent constitutes business secrets or is covered by professional secrecy and, secondly, that allegation satisfies the condition that there is a prima facie case, that the judge hearing an application for interim measures is in principle required, when examining the condition of urgency, to start from the premiss that the information constitutes business secrets or is covered by professional secrecy, respectively.
47      In that context, the President of the General Court found in paragraph 37 of the order under appeal that ‘the [appellants] have not alleged, in order to establish their prima facie case, that the redacted non-papers and the minutes contain business secrets or that these documents reveal information that, by its very nature, is confidential’. In paragraph 38 of that order, the President of the General Court also found that ‘instead, the [appellants] argue that [those] documents should not be disclosed on grounds that are entirely unrelated to the content of the documents’. The President of the General Court concluded, in paragraph 40 of that order, that he was not required, when examining the condition of urgency, to start from the premiss that the information was confidential.
48      It must be noted that it is apparent from the appellants’ arguments in the application for interim measures that they maintained that the redacted non-papers and the minutes should benefit from a presumption of confidentiality on the ground that they originate from settlement discussions with the Commission, irrespective of whether their content actually reveals business secrets or information which is covered by professional secrecy.
49      In those circumstances, the President of the General Court cannot be criticised for finding, in paragraphs 37 and 38 of the order under appeal, that the appellants had not alleged that the redacted non-papers and the minutes contained business secrets or information which, by its very nature, was confidential.
50      Moreover, it is not possible to accept the appellants’ argument that the distinction made in the order under appeal between the documents and information that they contain is ‘erroneous, and contrary to established case-law’, in so far as, in the cases which gave rise to the orders of the President of the General Court of 1 September 2015, France v Commission (T‑344/15 R, EU:T:2015:583), and of 20 July 2016, MSD Animal Health Innovation and Intervet international v EMA (T‑729/15 R, not published, EU:T:2016:435), a presumption of confidentiality covering documents in their entirety had been adopted.
51      It is sufficient to note that the case-law resulting from those cases concerns the interpretation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), the purpose of which is to confer on the public as wide a right of access as possible to documents of the EU institutions (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 76).
52      That case-law is not applicable in the context of the present case, which relates to access by an addressee of a statement of objections to documents originating from a settlement procedure, under the conditions provided for in point 35 of the settlement notice, that is to say, that the addressee undertakes, together with the legal counsel getting access on its behalf, not to make any copy by mechanical or electronic means of any information in the settlement submission to which access is being granted and to ensure that the information to be obtained from the settlement submission will solely be used for the purposes of judicial or administrative proceedings for the application of the EU competition rules at issue in the related proceedings.
53      In those circumstances, the President of the General Court did not err in law by finding, in paragraph 40 of the order under appeal, that he was not required, when examining the condition of urgency, to start from the premiss that the redacted non-papers and the minutes were confidential.
54      In the second place, as regards the appellants’ argument that the President of the General Court erred in law, in paragraphs 46 to 48 of the order under appeal, by holding that the disclosure of the redacted non-papers and the minutes was unlikely to constitute the decisive cause of any harm, in so far as the disclosure of the settlement submission had already taken place, it is sufficient to note that that argument is based on a misreading of those paragraphs of the order and must be dismissed.
55      The President of the General Court did not find that disclosure of the redacted non-papers and the minutes was unlikely to constitute the decisive cause of any serious and irreparable harm given that disclosure of the settlement submission had already taken place. He stated, in paragraph 48 of the order under appeal, that he could not verify whether disclosure of the redacted non-papers and the minutes constituted the decisive cause of the alleged serious and irreparable harm, since the appellants had not provided evidence to that effect.
56      In the third place, as regards the appellants’ argument that the President of the General Court, in paragraph 49 of the order under appeal, applied an excessively strict test for establishing harmful information, it should be borne in mind that the urgent nature of an application for interim measures must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim measure (order of the Vice-President of the Court of Justice of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 36).
57      It is for the party claiming serious and irreparable damage to establish its existence. While it is not necessary for it to be absolutely certain that the damage will occur, a sufficient degree of probability being enough, the applicant is nonetheless required to prove the facts which are considered to establish the prospect of such damage (order of the President of the Court of Justice of 14 December 2001, Commission v Euroalliages and Others, C‑404/01 P(R), EU:C:2001:710, paragraph 63).
58      In the present case, it is apparent from paragraph 45 of the order under appeal that the appellants failed to substantiate their allegation that the restricted disclosure of the redacted non-papers and the minutes would cause them serious and irreparable harm. In particular, the President of the General Court found, in paragraph 49 of the order under appeal, that the appellants ‘have not identified any specific information contained in the documents in question the disclosure of which could potentially harm their interests’, and that they ‘seem to refer broadly, and without any distinction, to the settlement documents’.
59      Moreover, the appellants’ line of argument according to which the redacted non-papers and the minutes should benefit from a presumption of confidentiality, based on the case-law arising from the cases resulting in the orders of the President of the General Court of 1 September 2015, France v Commission (T‑344/15 R, EU:T:2015:583), and of 20 July 2016, MSD Animal Health Innovation and Intervet international v EMA (T‑729/15 R, not published, EU:T:2016:435), must be rejected for the reasons set out in paragraphs 51 and 52 of the present order.
60      In those circumstances, the President of the General Court cannot be criticised for having applied, in paragraph 49 of the order under appeal, an excessively strict test for establishing harmful information.
61      In the fourth and last place, as regards the appellants’ argument that the President of the General Court erred in law, in paragraphs 46 to 53 of the order under appeal, by not considering that written communications made in the context of settlement discussions should benefit from a presumption of confidentiality, given their inherently harmful nature, it should be noted that that argument is based, first, on the case-law relating to Regulation No 1049/2001 and, secondly, on the self-incriminating nature of those communications.
62      As is apparent from paragraphs 51, 52 and 59 of the present order, that case-law is not applicable in the context of the present case.
63      As regards the self-incriminating nature of written communications made in the context of settlement discussions, it must be noted that it is apparent from Article 10a(2) of Regulation No 773/2004 that parties who commit to following the settlement procedure are required to introduce a settlement submission reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article 101 TFEU as well as their liability.
64      Access to settlement submissions is only granted to those addressees of a statement of objections who have not requested settlement, in accordance with point 35 of the settlement notice.
65      Thus, settlement submissions can be disclosed to addressees of a statement of objections who have not requested settlement, notwithstanding the self-incriminating statements they contain.
66      In the present case, as pointed out by the President of the General Court in paragraph 46 of the order under appeal, access to the appellants’ settlement submission had already been granted to an addressee of a statement of objections who had not requested settlement, under the conditions set out in point 35 of the settlement notice.
67      As is apparent from paragraphs 49 and 53 of the order under appeal, first, the appellants have not identified any specific information contained in the redacted non-papers and minutes the disclosure of which, under the same conditions as the settlement submission, could potentially harm their interests. Secondly, the President of the General Court found in paragraph 53 of the order under appeal that the appellants had not produced those documents, thus preventing him from verifying their claims.
68      It follows that the appellants’ argument that written communications made in the context of settlement discussions should benefit from a presumption of confidentiality on the ground that they generally contain self-incriminating statements is unfounded.
69      It follows from the foregoing considerations that the President of the General Court did not, in paragraphs 33 to 56 of the order under appeal, make any error of law when examining the condition of urgency.
70      In those circumstances, the first ground of appeal must be rejected.
The second ground of appeal
Arguments
71      By their second ground of appeal the appellants submit, in essence, that the President of the General Court infringed their right to an effective judicial remedy and a fair trial by failing to examine the condition relating to a prima facie case.
72      The Commission contests those arguments.
Assessment
73      Article 156(4) of the Rules of Procedure of the General Court requires applications for interim measures to 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 the settled case-law of the Court, the judge 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 (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm 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, which means that an application for interim measures must be dismissed if either of them is absent. The judge hearing an application for interim relief is also to undertake, where necessary, a weighing of the competing interests (order of the Vice-President of the Court of 21 March 2019, Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission, C‑4/19 P(R), not published, EU:C:2019:229, paragraph 12 and the case-law cited).
74      In the present case, the President of the General Court dismissed the application for interim measures on the ground that the condition of urgency was not satisfied.
75      As is apparent from the case-law cited in paragraph 73 of the present order, an application for interim measures must be dismissed where either of the conditions for granting it is absent.
76      It follows that the President of the General Court was properly able to rule, in paragraph 54 of the order under appeal, that, since the condition of urgency was not satisfied, the application for interim measures had to be dismissed without it being necessary to examine the condition relating to a prima facie case or the balance of interests.
77      Consequently, the second ground of appeal must be rejected.
78      Since neither of the two grounds of appeal relied upon by the appellants in support of their appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
79      Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
80      Since the Commission has applied for costs and the appellants have been unsuccessful as regards their grounds of appeal, the appellants must be ordered to pay the costs of the present appeal.
On those grounds, the Vice-President of the Court hereby orders:
1.      The appeal is dismissed.
2.      Lantmännen ek för and Lantmännen Agroetanol AB shall pay the costs of the appeal.
Luxembourg, 10 September 2019.
A. Calot Escobar
R. Silva de Lapuerta
Registrar
Vice-President
*      Language of the case: English.