ORDER OF THE VICE-PRESIDENT OF THE COURT
21 March 2019 (*)
(Appeal — Application for interim measures — Competition — Euro Interest Rate Derivatives sector — European Commission decision establishing an infringement of Article 101 TFEU — Decision 2011/695/EU — Dismissal of an application for confidential treatment of the decision — Information claimed to be confidential — Publication — Principle of the presumption of innocence — Prima facie case)
In Case C‑1/19 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 3 January 2019,
JPMorgan Chase & Co., established in New York (United States),
JPMorgan Chase Bank, National Association, established in Columbus (United States),
J.P. Morgan Services LLP, established in London (United Kingdom),
represented by M. Lester QC, D. Piccinin and D. Heaton, Barristers, and by B. Tormey, N. Frey, N. French and D. Das, Solicitors,
appellants,
the other party to the proceedings being:
European Commission, represented by F. van Schaik, M. Farley and A. Dawes, 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, JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP ask the Court to set aside the order of the President of the General Court of the European Union of 25 October 2018, JPMorgan Chase and Others v Commission (T‑420/18 R, not published, EU:T:2018:724) (‘the order under appeal’), by which he dismissed their application seeking, first, suspension of the operation of Commission Decision C(2018) 2745 final of 27 April 2018 on objections to the disclosure of information by publication raised by JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP in accordance with 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.39914 — Euro Interest Rate Derivatives (EIRD)) (‘the decision at issue’) and, second, an order requiring the European Commission to refrain from publishing its Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (Case AT.39914 — Euro Interest Rate Derivatives (EIRD) (‘the EIRD decision’).
Background to the dispute, procedure before the General Court and the order under appeal
2        The background to the dispute and the procedure before the General Court were set out in paragraphs 1 to 11 of the order under appeal as follows:
‘1      On 7 December 2016, the [Commission] adopted [the EIRD decision].
2       In Article 1 of the EIRD decision it is stated that, during the period from 27 September 2006 to 19 March 2007, the [appellants] — JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP — infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a single and continuous infringement concerning Euro Interest Rate Derivatives.
3      In accordance with Article 2 of the EIRD decision, a fine was imposed on the [appellants].
4      By application lodged at the Court Registry on 17 February 2017, the [appellants] brought, in essence, an action for annulment of the EIRD decision in so far as it is applicable to them. The action was registered as Case T‑106/17.
5      Since then, discussions on the publication of the EIRD decision have taken place between the [appellants] and the Commission.
6      On 27 April 2018, the hearing officer adopted, on behalf of the Commission, [the decision at issue].
7      According to Article 1 of the [decision at issue], the complaints relating to the publication of the EIRD decision are rejected, with the exception of those which have become obsolete because the Directorate-General (DG) for Competition decided to redact certain passages.
8      According to Article 2 of the [decision at issue], the information in respect of which the complaints are rejected will not be published before the expiry of the period for bringing proceedings.
9      By application lodged at the Court Registry on 10 July 2018, the [appellants] sought, in essence, annulment of the [decision at issue].
10      By a separate document, lodged at the Court Registry on the same date, the [appellants] brought an application for interim measures, pursuant to Articles 278 and 279 TFEU, in which they claim, essentially, that the President of the General Court should:
–        suspend the operation of the [decision at issue] until the Court has ruled on the action brought in Case T‑106/17 or, alternatively, on the action to which the present application for interim measures relates;
–        order the Commission to refrain from publishing the EIRD decision until the Court has ruled on the action brought in Case T‑106/17 or, alternatively, on the action to which the present application for interim measures relates;
–        order the Commission to pay the costs.
11      Following the request of the [appellants], the President of the General Court adopted, on 11 July 2018, without first hearing the Commission, an order on the basis of Article 157(2) of the Rules of Procedure of the General Court by which he ordered the Commission, in particular, to suspend the operation of the [decision at issue].’
3        On 25 October 2018, the President of the General Court adopted the order under appeal, by which he dismissed the application for interim measures, on the ground that, by claiming that the information which would be disclosed was confidential, the appellants had failed to demonstrate a prima facie case capable of justifying the granting of the interim measures sought.
Forms of order sought and procedure before the Court of Justice
4        By their appeal, the appellants claim that the Court should:
–        set aside the order under appeal;
–        order the Commission not to publish the EIRD decision or, in the alternative, not to publish any version of the EIRD decision containing the findings that appear in the second sentence of recital 465 of that decision until the General Court has adjudicated on the action for annulment in Case T‑420/18; and
–        order the Commission to pay the costs of the present appeal.
5        The Commission contends that the Court should:
–        dismiss the appeal;
–        in the alternative, if the appeal is well founded, refer the case back to the President of the General Court or, in the further alternative, dismiss the application for interim measures; and
–        order the appellants to bear the costs in respect of the appeal as well as those of the application for interim measures in Case C‑1/19 P(R)‑R.
6        By a separate document lodged at the Court Registry on 3 January 2019, the appellants also submitted an application for interim measures.
7        By order of the Vice-President of the Court of 16 January 2019, JPMorgan Chase and Others v Commission (C‑1/19 P(R)‑R, not published, EU:C:2019:41), adopted under Article 160(7) of the Rules of Procedure of the Court of Justice, the operation of the decision at issue was suspended and the Commission was ordered to refrain from publishing a non-confidential version of the EIRD decision containing information for which the appellants had requested confidential treatment under Article 8 of Decision 2011/695 until the adoption of an order terminating the interlocutory proceedings or until the adoption of an order ruling on the present appeal, whichever is the earlier.
The appeal
8        In support of their appeal, the appellants rely on three grounds.
The first ground of appeal
Arguments of the parties
9        By their first ground of appeal, the appellants claim that, in paragraphs 42 to 51 of the order under appeal, the President of the General Court misinterpreted the first plea in law of the action for annulment of the decision at issue in so far as it found that it was based on the premiss that the EIRD decision is unlawful.
10      The appellants argue that, by their first plea in law in the action for annulment of the decision at issue, they contest, not the validity of the EIRD decision, but the fact that they have not yet enjoyed the usual guarantees of the rights of the defence in the procedure that led to the adoption of that decision, and will not have done so until the General Court has given judgment in the action for annulment of that decision.
11      The appellants rely on the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795, paragraphs 266 to 269) and claim, in essence, that, by first adopting a settlement decision establishing their participation in an infringement and then adopting the EIRD decision, the Commission breached, inter alia, the principle of the presumption of innocence. Consequently, the appellants take the view that they are in an analogous situation to the undertaking concerned in the case which gave rise to the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), in that the Commission’s findings in the EIRD decision that it proposes to publish were reached in breach of the presumption of innocence and principles of good administration and are therefore covered by the obligation of professional secrecy.
12      The Commission contests those arguments.
Findings of the Court
13      It should be borne in mind that, so as not to neglect its role, the EU judicature must examine the various claims and pleas submitted by an applicant, as formulated in his pleadings, without modifying their nature or substance (judgment of 7 June 2018, Ori Martin v Court of Justice of the European Union, C‑463/17 P, EU:C:2018:411, paragraph 18).
14      In the present case, in paragraph 41 of the order under appeal, the President of the General Court found that the appellants, in support of their first plea in law in the action for annulment of the decision at issue, ‘in essence, [...] maintain that it follows from paragraphs 266 to 269 of the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), that the Commission breached the principle of the presumption of innocence. In the same manner as in the case which gave rise to that judgment, the Commission, in the present case, first of all adopted a settlement decision and then the EIRD decision. Consequently, the [appellants] submit that the EIRD decision is vitiated by a breach of the principle of the presumption of innocence and, in order to avoid a consecutive breach of that principle, the publication of that decision should be postponed until its lawfulness is examined by the Court’.
15      In paragraph 42 of the order under appeal, the President of the General Court deduced therefrom that ‘the [appellants’] reasoning appears to be based on the premiss that the EIRD decision is unlawful because of a breach of the principle of the presumption of innocence’.
16      The appellants claim that, by doing so, the President of the General Court misinterpreted their first plea in law in the action for annulment of the decision at issue by finding that it was based on the premiss that the EIRD decision was unlawful.
17      It is appropriate to find that it is evident from the appellants’ arguments in support of their first plea in law in the action for annulment of the decision at issue, in particular paragraphs 17, 18, 21 and 22 of their application initiating proceedings, that they argued, on the basis of paragraphs 266 to 269 of the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), that the adoption of the EIRD decision constituted a breach of the principle of the presumption of innocence and that the EIRD decision should not have been published until the EU Courts had adjudicated on the action for annulment of that decision. Further, that same argument is set out in paragraphs 16 to 18 of the application for interim measures before the President of the General Court and in paragraphs 22, 25 and 26 of the appeal before the Court of Justice.
18      Accordingly, the President of the General Court did not err in law when he found, in paragraph 42 of the order under appeal, that the appellants’ reasoning appeared to be based on the premiss that the EIRD decision was unlawful because of a breach of the principle of the presumption of innocence.
19      It follows that the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
20      By their second ground of appeal, the appellants claim that, in paragraphs 54 to 60 of the order under appeal, the President of the General Court misinterpreted the case-law arising from the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), by finding that the principle of the presumption of innocence precludes the publication by the Commission of an infringement decision only in the case where the persons concerned were not able to contest such a decision before the EU Courts.
21      The appellants take the view that the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), establishes a general principle according to which the Commission can publish findings on, or in particular make any allusion to the liability of, a person only if that person has been able to enjoy all the usual guarantees accorded for the exercise of the rights of the defence. The appellants claim that they did not enjoy such guarantees.
22      The Commission contests that argument.
Findings of the Court
23      Contrary to what is maintained by the appellants, it does not in any way follow from the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306) that the General Court established a general principle according to which the Commission can publish findings on, or in particular make any allusion to the liability of, a person only if that person has been able to enjoy all the usual guarantees accorded for the exercise of the rights of the defence.
24      In that regard, it is necessary to note the particular circumstances in the case giving rise to that judgment, in which the Commission had published a decision in which it concluded that an undertaking had participated in an infringement of EU competition law without mentioning that participation in the operative part of that decision. Accordingly, the undertaking concerned did not have standing to bring proceedings against the Commission’s decision and, consequently, was entirely unable to contest the substance of the findings referring to an infraction concerning it set out in the grounds of that decision.
25      In that context, in paragraphs 77, 78 and 80 of that judgment, the General Court held, in essence, that the fact that findings referring to an undertaking’s participation in an infringement evade any review by the courts was contrary to the principle of the presumption of innocence, which meant that those findings should, in principle, be regarded as confidential as regards the public, and, therefore, as being of the kind covered by the obligation of professional secrecy.
26      In the present case, however, as the President of the General Court rightly found in paragraphs 58 and 59 of the order under appeal, as the appellants had brought an action for annulment of the EIRD decision before the General Court, their situation was not, prima facie, comparable to that of the undertaking concerned in the case which gave rise to the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306).
27      Accordingly, the President of the General Court did not err in law when he found, in paragraph 60 of the order under appeal, that the appellants could not, ‘a priori, base their claim of confidentiality as regards the EIRD decision in its entirety on the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T 474/04, EU:T:2007:306)’.
28      In view of the foregoing, the second ground of appeal must be rejected.
The third ground of appeal
Arguments of the parties
29      By their third ground of appeal, directed against paragraph 81 of the order under appeal, the appellants argue that, by rejecting their claim that the publication of recital 465 of the EIRD decision would damage the reputation of certain individuals because the appellants had not named those individuals in question in their application for confidentiality, the President of the General Court imposed an unduly high standard of proof for the establishment of a prima facie case.
30      The appellants argue that, in order to establish damage to an individual’s reputation, paragraph 71 of the judgment of 30 May 2006, Bank Austria Creditanstalt v Commission (T‑198/03, EU:T:2006:136) requires only that the disclosure of the information be liable to cause serious harm to the person who has provided it or to third parties. In addition, they also claim that publication of a generic reference to the [confidential] of an identifiable group necessarily harms all members of the [confidential].
31      The Commission contests those arguments.
Findings of the Court
32      In paragraph 81 of the order under appeal, the President of the General Court found that ‘recital 465 of the EIRD decision simply refers to the [appellants’] [confidential], without identifying any individual and without even specifying the level of hierarchy concerned’ and, further, that ‘the [appellants], while claiming damage to the reputation of certain individuals, do not name those individuals who, according to the [appellants], would suffer damage to their reputation, thus making the claim unverifiable in fact’.
33      In the light of those factors, it does not appear that the publication of recital 465 of the EIRD decision is liable to damage the reputation of identifiable individuals.
34      Further, paragraph 71 of the judgment of 30 May 2006, Bank Austria Creditanstalt v Commission (T‑198/03, EU:T:2006:136) does not call into question the assessments made by the President of the General Court in paragraph 81 of the order under appeal.
35      Accordingly, the President of the General Court cannot be criticised for finding, in paragraph 82 of the order under appeal, that the appellants had not established a prima facie case of alleged damage to the reputation of certain individuals.
36      It follows that the third ground of appeal must be rejected and, consequently, that the appeal must be dismissed in its entirety.
Costs
37      Under Article 138(1) of the Rules of Procedure, which applies to the present appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
38      As the Commission has applied for the appellants to be ordered to pay the costs, and as the latter have been unsuccessful, the appellants must be ordered to pay the costs incurred in the present appeal proceedings and in the interim proceedings in Case C‑1/19 P(R)‑R.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1.      The appeal is dismissed.
2.      JPMorgan Chase & Co., JPMorgan Chase Bank, National Association, and J.P. Morgan Services LLP shall pay the costs in the present appeal proceedings and in the interim proceedings in Case C‑1/19 P(R)‑R.
Luxembourg, 21 March 2019.
A. Calot Escobar
R. Silva de Lapuerta
Registrar
Vice-president
*      Language of the case: English.