Order of the President of the General Court of 25 October 2018 –

Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission

(Case T‑419/18 R)

(Application for interim measures — Competition — Euro Interbank Offered Rates (Euribor) — Euro Interest Rate Derivatives (EIRD) — Rejection of the request for confidential treatment of certain information in a decision finding an infringement of Article 101 TFEU — Principle of the presumption of innocence — Application for interim measures — No prima facie case)

1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Order of examination and method of verification — Discretion of the court hearing the application for interim relief — Assessment in litigation on the protection of confidential information — Condition of prima facie case not satisfied (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4)) (see paras 13-16, 20-23, 26, 30)

2. Application for interim measures — Admissibility criteria — Application — Formal requirements — Pleas establishing a prima facie case for the measures applied for — Pleas in law not set out in the application — General reference to other documents — Inadmissibility (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4) and (5)) (see paras 18, 19)

3. Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria — Interests, capable of being harmed by the disclosure of information, deserving protection — Balancing of the public interest in the transparency of EU action and legitimate interests opposed to disclosure — Interest of an undertaking that certain information concerning its conduct not be disclosed — Interest not deserving any particular protection in the case of undertakings which participated in an infringement of EU competition rules (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 41; Council Regulation No 1/2003, Arts 7, 23, 28 and 30) (see paras 34-36, 38, 39)

4. Competition — Fines — Decision imposing fines — Content — Chance to include factual findings — Assessment by the Commission (Art. 101 TFEU, Council Regulation No 1/2003) (see para. 37)

5. Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Historic informations — Not included — Information which cannot be regarded as secret or confidential (Arts 101 TFEU and 339 TFEU) (see para. 49)

6. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Damage caused by the publication of information in the course of competition proceedings — Decisive cause of the damage arising from infringement of competition law and not from disclosure of information that may be used as evidence in an action for damages against the person responsible for the infringement — Interim relief not justified by interest of person responsible in non-disclosure (Arts 15 TFEU, 101(1) TFEU, 278 TFEU and 279 TFEU; Council Regulation No 1/2003, Art. 30; European Parliament and Council Directive 2014/104, Art. 5(5)) (see paras 51-54)

Re:

Application based on Articles 278 TFEU and 279 TFEU seeking, first, a suspension of operation of Commission Decision C(2018) 2743 final of 27 April 2018 concerning objections submitted by Crédit agricole and Crédit agricole Corporate and Investment Bank to the disclosure of information by way of publication, 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 (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)) and, secondly, an order that the Commission refrain from publishing a version of its Decision C(2016) 8530 final of 7 December 2016 relating to proceedings under Article 101 TFEU and Article 53 of the Agreement [on the European Economic Area (EEA)] (Case AT.39914 — Euro Interest Rate Derivatives (EIRD)) containing elements which are allegedly confidential.

Operative part

1. The application for interim measures is dismissed.