ORDER OF THE VICE-PRESIDENT OF THE COURT

14 June 2016 ( )

(Appeal — Order for interim measures — Procedure for placing plant protection products on the market — Publication of documents relating to that procedure — Application for confidential treatment of certain information contained in those documents — Rejection — Application for suspension of the decision rejecting the application for confidential treatment and for the grant of other interim measures — Urgency)

In Case C‑134/16 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 4 March 2016,

Chemtura Netherlands BV, established in Amsterdam (Netherlands), represented by C. Mereu and K. Van Maldegem, avocats,

applicant,

the other party to the proceedings being:

European Food Safety Agency (EFSA), represented by D. Detkten and S. Gabbi, acting as Agents, and R. Van Der Hout and C. Wagner, avocats,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Wathelet,

makes the following

Order

1 By its appeal, Chemtura Netherlands BV seeks to have set aside the order of the President of the General Court of the European Union of 29 February 2016 in Chemtura Netherlands v EFSA (T‑725/15 R, not published, ‘the order under appeal’, EU:T:2016:128), by which the President rejected its application for suspension of the operation of the decision of the European Food Safety Agency (EFSA) of 10 December 2015 (‘the contested decision’) concerning the publication of the EFSA conclusion on the Peer Review on the review of the approval of the active substance diflubenzuron regarding the metabolic 4-chloroaniline (PCA) (‘the EFSA conclusion’), in respect of which Chemtura Netherlands requested partial confidential treatment.

Background to the dispute, procedure before the General Court and the order under appeal

2 Chemtura Netherlands is a company that develops, produces and sells agrochemical and specialty chemicals. In accordance with the arrangements set out in 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), it notified the competent authorities of the active substance diflubenzuron, an insecticide used on a variety of crops, mainly apples, pears and mushrooms.

3 Commission Directive 2008/69/EC of 1 July 2008 amending Directive 91/414 (OJ 2008 L 172, p. 9) included diflubenzuron in Annex I to Directive 91/414 with a view to the marketing of that substance and, at the same time, required Chemtura Netherlands to submit ‘confirmatory data’ on the potential genotoxicity of the impurity and metabolite 4-chloroaniline (PCA).

4 Following the examination of those data by the various bodes responsible for the authorisation procedure established by Directive 91/414, including EFSA, the European Commission formally informed Chemtura Netherlands, in July 2013, that the approval of diflubenzuron was being reviewed under Article 21 of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Directives 79/117/EEC and 91/414 (OJ 2009 L 309, p. 1).

5 In January 2014, Chemtura Netherlands submitted to the Kingdom of Sweden, the Rapporteur Member State (‘the RMS’) for diflubenzuron, data intended to address potential concerns with the metabolite. In July 2014, the RMS released a draft report evaluating the updated data, in which it concluded that the potential exposure to PCA from the representative use of diflubenzuron in pome fruits did not pose a risk (‘the July 2014 report’). Chemtura Netherlands, the other Member States and EFSA were given the opportunity to comment on that report.

6 Subsequently, the RMS produced an addendum to the July 2014 report, in which it stated that [confidential] (‘the July 2015 addendum’).

7 In order to address the content of the July 2015 addendum, Chemtura Netherlands submitted a scientific paper to EFSA in August 2015, which EFSA refused to take into account, on the ground that Chemtura Netherlands had already been given the opportunity to comment on the July 2014 report.

8 In its conclusion, of 27 August 2015, EFSA stated that it could not be concluded that [confidential].

9 Chemtura Netherlands was asked to identify potentially confidential information in that document before it was published on the EFSA website. In reply, Chemtura Netherlands requested that certain parts of the document be redacted on grounds of confidentiality under Article 63 of Regulation No 1107/2009, paragraphs 1 and 2 of which provide as follows:

‘1. A person requesting that information submitted under this Regulation is to be treated as confidential shall provide verifiable evidence to show that the disclosure of the information might undermine his commercial interests, or the protection of privacy and the integrity of the individual.

2. Disclosure of the following information shall normally be deemed to undermine the protection of the commercial interests or of privacy and the integrity of the individuals concerned:

…

(g) names and addresses of persons involved in testing on vertebrate animals.’

10 EFSA granted the request for confidential treatment seeking the redaction of the names of the authors of studies and reports, in accordance with Article 63(2)(g) of Regulation No 1107/2009, and the request for the correction of certain material mistakes. However, EFSA refused the requests based on Article 63(1) of that regulation, seeking the redaction of sections containing information which might undermine Chemtura Netherlands’ commercial interests, on the grounds, inter alia, that the latter had been given the opportunity to comment on the July 2014 report and would have the chance to comment on the Commission’s final decision. Moreover, the mere risk that most of the information in question would harm Chemtura Netherlands’ image was not sufficient to justify treating it as confidential, bearing in mind EFSA’s obligation to publish information that might have an effect on public health.

11 On 12 October 2015, Chemtura Netherlands requested EFSA to review the decision rejecting its claims for confidential treatment. In support of that request, it submitted that EFSA had, inter alia, infringed Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Agency and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1). It submitted that although, under that regulation, the EFSA conclusion should have ‘high scientific quality’, that authority had formed its conclusion of the basis of the July 2015 addendum, which was itself based on questionable science and truncated information. Chemtura Netherlands also contended that, by wilfully ignoring its comments, EFSA had infringed its rights of defence and acted contrary to its obligations under that regulation to base its assessments on ‘all the available scientific evidence’. Lastly, there was no reliable evidence that [confidential].

12 By the contested decision, EFSA definitively rejected Chemtura Netherlands’ claims for confidential treatment and published the EFSA conclusion.

13 On 10 December 2015, Chemtura Netherlands was notified of that decision and, on 11 December 2015, the EFSA conclusion was published in full on EFSA’s website.

14 By application lodged at the Registry of the General Court on 11 December 2015, Chemtura Netherlands brought an action for annulment of the contested decision.

15 By separate document lodged on the same day, Chemtura Netherlands filed an application requesting the President of the General Court to grant interim measures.

16 By order of 15 December 2015 (Chemtura Netherlands v EFSA, T‑725/15 R), the President of the General Court granted, under Article 157(2) of the Rules of Procedure of the General Court, temporary suspension of operation of the contested decision and ordered EFSA immediately to withdraw the EFSA conclusion from its website. EFSA complied with the order on the same day.

17 On 29 February 2016, the President of the General Court adopted the order under appeal, by which he decided that the publication of the EFSA conclusion was not likely to cause Chemtura Netherlands serious and irreparable harm of either a financial or non-material nature and that there was therefore no urgent need to grant the interim measures sought. On that basis, the President of the Court rejected Chemtura Netherlands’ application without examining the conditions relating to a prima facie case or weighing up the interests involved.

Procedure before the Court of Justice and forms of order sought by the parties

18 By its appeal, Chemtura Netherlands claims, in essence, that the Court should:

– set aside the order under appeal;

– reinstate the order of the President of the General Court of 15 December 2015 (Chemtura Netherlands v EFSA, T‑725/15 R), in so far as it orders EFSA to suspend operation of the contested decision and remove the EFSA conclusion from its website;

– order EFSA to pay a daily financial penalty in order to ensure that the removal obligation is complied with;

– in the event that its appeal is successful, give a final ruling on its application for interim measures by (i) suspending the contested decision pending full resolution of the dispute in the main proceedings and (ii) granting the interim relief measures necessary, and

– order EFSA to pay all the costs, including those relating to the proceedings before the General Court.

19 EFSA contends that the Court of Justice should dismiss the appeal and order Chemtura Netherlands to pay the costs.

20 On 7 March 2016, Chemtura Netherlands filed an application for interim measures seeking, in essence, the suspension of the order under appeal and the contested decision, as well as further interim measures.

21 By order of 11 March 2016 in Chemtura Netherlands v EFSA (C‑134/16 P(R), EU:C:2016:164), pursuant to Article 160(7) of the Court’s Rules of Procedure, the Vice President of the Court of Justice suspended operation of the contested decision pending the adoption of the present order and ordered EFSA not to publish its conclusion.

The appeal

22 Chemtura Netherlands puts forward six grounds of appeal, alleging six errors of law.

The first four grounds of appeal, alleging errors of law regarding the examination of the serious and irreparable nature of the non-material harm alleged

Arguments of the parties

23 With regard to the purportedly serious and irreparable nature of the non-material harm alleged, Chemtura Netherlands takes issue with the President of the General Court for stating, in paragraph 51 of the order under appeal, that ‘[a]ccording to settled case-law, annulment of the contested decision on conclusion of the main proceedings would provide sufficient reparation for the alleged non-material damage (see, to that effect, orders of 25 March 1999 in Willeme v Commission, C‑65/99 P(R), ECR, EU:C:1999:176, paragraph 14; 22 July 2010 in H v Council and Others, T‑271/10 R, EU:T:2010:315, paragraph 36, and 18 November 2011 in EMA v Commission, T‑116/11 R, EU:T:2011:681, paragraph 21)’. Not only is there no settled case-law on that question but the decisions on which the President of the General Court relied provide no justification for that assertion in paragraph 51 of the order under appeal. In actual fact, the relevant test for determining whether there is likely to be non-material damage is to verify whether the suspension of publication sought would ensure that the judgment on the substance takes full effect. In the present case, the judgment concluding the substantive proceedings cannot repair all the damage to Chemtura Netherlands’ reputation that it is alleged will occur if EFSA’s conclusion is published, with the result that publication of that conclusion should be suspended.

24 By its second ground of appeal, Chemtura Netherlands submits that the President of the General Court erred in law by considering, in paragraph 52 of the order under appeal, that if the contested decision were annulled, a publicity campaign could remedy the harm caused to the reputation of chemical products such as diflubenzuron. That is tantamount to laying down an irrebuttable presumption that such a campaign would be sufficient to remedy the non-material harm caused by the publication of the EFSA conclusion.

25 Moreover, with regard to the claim that the non-material harm alleged would be serious, by its third ground of appeal, Chemtura Netherlands takes issue with the President of the General Court for failing, in paragraph 54 of the order under appeal, in his duty to provide a proper statement of reasons, by taking the view that, even if the sales of diflubenzuron were to cease entirely as a result of the publication of the EFSA conclusion, the volume of those sales does not appear sufficiently high to reach the level of seriousness required.

26 By its fourth ground of appeal, Chemtura Netherlands contends that the President of the General Court concluded, in paragraphs 54 and 55 of the order under appeal, that the non-material harm in question is not serious, on the basis of his personal opinion that [confidential] is unlikely to harm Chemtura Netherlands’ reputation as a business and [confidential] would not necessarily have an adverse effect on the reputation of the undertaking concerned. Moreover, the President of the General Court failed to address Chemtura Netherlands’ contentions concerning the harm specifically caused to the reputation of products containing diflubenzuron. Lastly, Chemtura Netherlands submits that stigma inevitably attaches to [confidential], which may therefore be presumed without having to be proved.

27 EFSA disputes Chemtura Netherlands’ arguments.

Findings of the Court

28 For the purpose of the reply to the second ground of appeal, which it is appropriate to consider first, it should be noted that that ground is based on a misreading of paragraph 52 of the order under appeal.

29 Indeed, in addressing the arguments concerning the claim that the non-material harm alleged by Chemtura Netherlands was irreparable, the President of the General Court stated, in paragraph 52 of the order under appeal, that the latter had not established, to the requisite legal standard, the existence of obstacles of a structural or legal nature preventing it from restoring its reputation. In reaching that conclusion, the President of the General Court relied on Chemtura Netherlands’ assertion that [confidential] and described that assertion as mere speculation unsupported by any evidence.

30 It is only when drawing the appropriate inferences from that conclusion, which is not disputed by Chemtura Netherlands, that the President of the General Court stated that it appeared plausible that any harm to Chemtura Netherlands’ reputation ‘could be restored if the contested decision were annulled, where appropriate by means of a publicity campaign organised by [Chemtura Netherlands], aimed at the circles concerned’.

31 As a consequence, contrary to what is claimed by Chemtura Netherlands, the President of the General Court did not lay down a presumption that a publicity campaign would necessarily be an appropriate means of remedying the non-material damage in question or require Chemtura Netherlands to prove the contrary.

32 It follows from the foregoing considerations that the President of the General Court did not err in law as regards the standard of the burden of proof imposed for the purpose of establishing the irreparable nature of the harm alleged and the second ground of appeal must therefore be rejected as unfounded.

33 The grounds adopted by the President of the General Court in paragraph 52 of the order under appeal are therefore sufficient to justify the conclusion that the non-material damage alleged was not irreparable and it follows that the error which Chemtura Netherlands attributes to the President in its first ground of appeal cannot call that conclusion into question. Indeed, even if annulment of the contested decision were not sufficient to remedy the damage alleged, the fact remains that Chemtura Netherlands has failed to prove that that damage is irreparable due to obstacles of a structural or legal nature.

34 Accordingly, the first ground of appeal must be rejected as ineffective.

35 As regards the third and fourth grounds of appeal, alleging that the President of the General Court erred in law in his assessment of the seriousness of the non-material damage alleged, it is sufficient to note that, as is apparent from the considerations set out above, Chemtura Netherlands has not succeeded in demonstrating that the President was incorrect in his view that the non-material damage in question was not irreparable.

36 As a consequence, even if the third and fourth grounds of appeal were upheld, that would still not have the effect of setting aside the order under appeal, since those grounds of appeal do not call into question the assertion that the non-material damage alleged is not irreparable or, therefore, the conclusion, in paragraph 56 of the order under appeal, that such damage does not justify the interim measures sought.

37 Accordingly, the third and fourth grounds of appeal must also be rejected as ineffective.

The fifth ground of appeal, alleging an error of law in the examination of whether the financial harm alleged is irreparable

Arguments of the parties

38 By its fifth ground of appeal, Chemtura Netherlands claims that the President of the General Court erred in law by stating, in paragraph 65 of the order under appeal, that if the Court annulled the contested decision, it would have to be content with subsequent financial compensation to remedy the financial harm alleged, and that it had failed to show that it would be prevented from obtaining such compensation through an action for damages.

39 In particular, the President of the General Court failed to take account of the arguments set out by Chemtura Netherlands in its application for interim relief, in which it explained why subsequent financial compensation would not make good either the damage caused by the continuing publication of the EFSA conclusion or the effects of that publication on its reputation. Furthermore, Chemtura Netherlands argued in that application that the damage to its reputation was non-material and unquantifiable damage, since the grant of compensation, of whatever amount, would not change the opinion of consumers and customers following publication of the EFSA conclusion.

40 EFSA disputes that line of argument.

Findings of the Court

41 For the purpose of ruling on the fifth ground of appeal, it should be noted that, although it is directed at paragraphs 64 and 65 of the order under appeal, its purpose is in fact to call into question the assessment of the President of the General Court concerning the non-material damage allegedly suffered by Chemtura Netherlands as a result of the effects of the publication of the EFSA conclusion on its reputation.

42 That assessment, which is set out in paragraphs 50 to 56 of the order under appeal and with which Chemtura Netherlands does not take issue on the ground that it failed to address its arguments, was unsuccessfully challenged by the appellant in its first four grounds of appeal, as is apparent from paragraphs 28 to 37 of the present order.

43 Consequently, the fifth ground of appeal must also be rejected.

The sixth ground of appeal, alleging infringement of the duty to state reasons

Arguments of the parties

44 By its sixth ground of appeal, Chemtura Netherlands submits that the President of the General Court erred in law by failing to address the argument, raised in paragraph 71 of its application for interim relief, that the disclosure of the EFSA conclusion would prejudice the outcome of the main action and thus jeopardise its right to an effective remedy, as enshrined in Article 6 of the European Convention for the Protection of Human Rights, signed in Rome on 4 November 1950, and in Article 47 of the Charter of Fundamental Rights of the European Union.

45 EFSA disputes that line of argument.

Findings of the Court

46 For the purpose of ruling on the sixth ground of appeal, it should be noted, first, that, in the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the plea alleging that the General Court failed to rule on arguments relied on at first instance amounts essentially to relying on a breach of the obligation to state reasons, which derives from Article 36 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and from Article 119 of the Rules of Procedure of the General Court (order of 13 December 2012 in Alliance One International v Commission, C‑593/11 P, EU:C:2012:804, paragraph 27).

47 In that regard, it is clear from the settled case-law of the Court of Justice that that court does not require the General Court to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties to the case and that the General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (order of 13 December 2012 in Alliance One International v Commission, C‑593/11 P, EU:C:2012:804, paragraph 28).

48 In the present case, it is apparent from paragraph 71 of its application for interim relief that, in citing case-law covering the specific area of proceedings relating to the interim protection of information alleged to be confidential, Chemtura Netherlands claimed, in essence, that the publication of the EFSA conclusion would affect the outcome of the main proceedings and thereby jeopardise its fundamental right to an effective remedy.

49 However, the President of the General Court stated, in paragraphs 34 and 35 of the order under appeal, that Chemtura Netherlands had failed to identify any information which could be classified as confidential, so that the case on which he was required to adjudicate did not have the characteristics of a case covered by that specific area of proceedings. Chemtura Netherlands not only failed to dispute that point but even confirmed it in its appeal when it stated that its appeal did not concern paragraphs 29 to 36 of the order under appeal.

50 Consequently, the sixth ground of appal must be rejected as unfounded.

51 Since Chemtura Netherlands has been unsuccessful in all its grounds of appeal, the appeal must be dismissed in its entirety.

Costs

52 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to 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.

53 Since EFSA has applied for costs and Chemtura Netherlands has been unsuccessful, Chemtura Netherlands must be ordered to pay the costs incurred in the present appeal proceedings and in the interim proceedings in Case C‑134/16 P(R)-R.

On those grounds, the Vice-President of the Court hereby orders that:

1. The appeal is dismissed.

2. Chemtura Netherlands is to pay the costs of the appeal proceedings, including those incurred in the interim proceedings in Case C‑134/16 P(R)-R.

[Signatures]