Nexans France and Nexans v Commission (Competition - Power cables - Rejection of the request for confidential treatment : Order) [2017] EUECJ T-423/17

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(Interim relief — Competition — Power cables — Rejection of the request for confidential treatment of certain information contained in a decision establishing an infringement of Article 101 TFEU — Application for interim measures — Lack of urgency)

European Commission, represented by H. van Vliet, G. Meessen and I. Zaloguin, acting as Agents,

APPLICATION based on Articles 278 TFEU and 279 TFEU, seeking, first, a suspension of operation of Commission Decision C(2017) 3051 final of 2 May 2017 relating to a request for confidential treatment (Case COMP/AT.39610 — Power Cables) in so far as that request is refused in respect of the material seized from the applicants and another economic operator and, second, an order requiring the Commission to refrain from publishing a version of its Decision C(2014) 2139 final of 2 April 2014 (Case COMP/AT.39610 — Power Cables), which contains that material,

Background to the dispute, procedure and forms of order sought by the parties

1 On 28 January 2009, the European Commission carried out an inspection at the premises of one of the applicants, Nexans France, in Paris (France).

2 According to the applicants, Nexans and Nexans France, the Commission inspectors decided to copy ‘en masse’ a large number of email files from the computers of two employees of Nexans France, as well as the entire hard drive of one of those employees, and to remove these under seal to their premises in Brussels (Belgium) for further examination at a later date.

3 According to the applicants, between 3 and 11 March 2009, the Commission conducted its inspection of the copied material at its premises in Brussels in the presence of the applicants’ lawyers, but in the absence of a representative of the relevant national competition authority. It was only at this stage that the Commission inspectors systematically examined the contents of the disks, selecting material that was deemed relevant and printing that material off. Copies of the printed material were allegedly provided to the applicants’ lawyers and the content of the disks subsequently erased.

4 In the action brought before the General Court on 7 April 2009, the applicants contested, inter alia, that procedure. In the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), the Court, inter alia, rejected as inadmissible the applications for annulment of the seizure of the documents. In that regard, it follows from that judgment that that seizure cannot be regarded as an actionable measure and that judicial review of the manner in which an inspection was conducted comes within the scope of an action for annulment, where appropriate, of the final decision adopted by the Commission under Article 101 TFEU (judgment of 14 November 2012, Nexans France and Nexans v Commission, T‑135/09, EU:T:2012:596, paragraph 132).

5 In the appeal against the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), lodged at the Registry of the Court of Justice on 24 January 2013, the applicants did not contest the rejection, on grounds of inadmissibility, of the plea raised at first instance alleging that the seizure was unlawful. In any event, the Court of Justice dismissed the applicants’ appeal by judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030).

6 On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement against a number of undertakings, including the applicants, which produce high-voltage underground and submarine power cables (Case COMP/AT.39610 — Power Cables) (the ‘power cables decision’).

7 By letter of 8 May 2014, the Commission’s Directorate-General (DG) for Competition informed the applicants of its intention to publish, in accordance with Article 30 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), a non-confidential version of the power cables decision on its website. DG Competition also asked the applicants to identify any material that was confidential or constituted business secrets and to give reasons for their assessment in that regard.

8 By application lodged at the Court Registry on 17 June 2014, the applicants brought an action, registered as Case T‑449/14, seeking annulment of the power cables decision. By their first plea in that action, the applicants argued, inter alia, that the Commission had acted beyond its powers in removing the material unlawfully and by block copying, without prior examination, a large volume of electronic data in order to review it at a later date at its premises in Brussels.

9 By letter of 3 May 2016, following various exchanges concerning the requests for confidentiality, DG Competition informed the applicants of its intention to publish the entirety of the power cables decision, with the exception of certain material that it considered should remain confidential.

10 By letter of 18 May 2016, the applicants sent a request for confidential treatment in respect of certain material to the hearing officer 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).

11 In that request, the applicants argued, inter alia, that information contained in the power cables decision and acquired during the seizure at the premises of Nexans France and another economic operator had to be regarded as confidential.

12 On 2 May 2017, the hearing officer, on behalf of the Commission, adopted Decision C(2017) 3051 final on a request for confidential treatment (Case AT.39610 — Power Cables) (the ‘contested decision’).

13 In the contested decision, the Commission granted the request for confidentiality in respect of certain information, as listed in Article 1 of that decision, and refused the applicants’ request in respect of other information acquired during the seizure at the premises of Nexans France and another economic operator (such other information hereafter being referred to as the ‘contested material’).

14 By application lodged at the Court Registry on 11 July 2017, the applicants asked the Court to annul the contested decision in so far as their request for confidential treatment of the contested material had been refused.

15 By a separate document, lodged at the Court Registry on the same date, the applicants brought an application for interim measures, pursuant to Articles 278 TFEU and 279 TFEU, in which they claim, essentially, that the President of the Court should:

– suspend the operation of the contested decision in so far as the request for confidential treatment of the contested material is refused;

– order the Commission to refrain from publishing a version of the power cables decision containing the contested material for as long as the ‘Court of Justice of the European Union’ has not ruled on the first plea in Case T‑449/14;

16 In response to the applicants’ application, the President of the General Court adopted on 12 July 2017, without hearing from the Commission beforehand, an order on the basis of Article 157(2) of the Rules of Procedure of the General Court, pursuant to which he ordered the Commission to suspend operation of the contested decision until the order terminating the present proceedings for interim relief is made and to refrain from publishing a version of the power cables decision containing the contested material for as long as the applicants’ first plea in Case T‑449/14 is pending before the General Court.

17 In its observations on the application for interim relief, which were lodged at the Court Registry on 21 August 2017, the Commission contends that the President of the Court should:

18 It is apparent from a reading of Articles 278 TFEU and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order suspension of the operation of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

19 The first sentence of Article 156(4) of the Rules of Procedure 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’.

20 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, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also required to undertake, when necessary, a weighing of the competing interests (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).

21 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular 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).

22 Having regard to the material in the case file, the President of the Court 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.

23 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

24 In order to determine whether the interim measures sought are urgent, it should be borne in mind that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to avoid a lacuna in the legal protection afforded by the EU judicature. To attain that objective, urgency must usually be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party requesting the interim measure. 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, C‑517/15 P‑R, EU:C:2016:21, paragraph 27 and the case-law cited).

25 Furthermore, according to settled case-law, there is urgency only if the serious and irreparable harm feared by the party requesting 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 harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 16 February 2017, Gollnisch v Parliament, T‑624/16 R, not published, EU:T:2017:94, paragraph 25 and the case-law cited).

26 Following settled case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 TFEU and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).

27 Where the harm alleged is financial in nature, the interim measures sought are justified if it appears that, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or if its market share would be affected substantially in the light of, inter alia, the size and turnover of its undertaking and, where appropriate, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P‑R, EU:C:2014:1749, paragraph 46 and the case-law cited).

28 Furthermore, under the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures must ‘contain all the evidence and offers of evidence available to justify the grant of interim measures’.

29 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 other 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).

30 It is also established case-law that, in order to be able to determine whether all the conditions set out in paragraphs 25 and 27 above are met, the judge hearing the application for interim measures must have hard and precise information, supported by detailed and certified documents showing the situation of the party seeking interim relief and making it possible to examine the actual consequences which would be likely to result if the measures sought were not granted. It follows that that party, especially where it alleges harm of a financial nature, must provide, with supporting documentation, an accurate and comprehensive picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).

31 Lastly, while the application for interim measures may be supplemented on specific points by references to documents annexed to that application, those documents cannot compensate for the failure to set out the essential elements in that application. It is not the task of the judge hearing the application for interim measures to seek, in place of the party concerned, the information that may be found in the annexes to the application for interim measures, in the main application or in the annexes to that application, which is liable to substantiate the application for interim measures. To impose such an obligation on the judge hearing the application for interim measures would also be likely to deprive of all effect Article 156(5) of the Rules of Procedure, under which the application for interim measures must be made by separate document (see order of 20 June 2014, Wilders v Parliament and Others, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).

32 In the present case, it should be noted, as a preliminary point, that the applicants, relying on paragraph 38 of the order of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), argue that, as interim protection is sought for information alleged to be confidential, the assessment of whether publication would result in serious and irreparable harm must start from the premiss that the information alleged to be confidential is in fact confidential.

33 However, the circumstances of the case that gave rise to the order of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), and those of the case that gave rise to the order of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P‑R, EU:C:2016:142), are very different from those of the present case.

34 As follows, in particular, from paragraphs 18 and 38 of the order of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), Pilkington Group Ltd, in its action for annulment, had disputed the Commission’s assessment that the information which it intended to disclose under Article 30(1) of Regulation No 1/2003 did not constitute business secrets within the meaning of, inter alia, Article 339 TFEU and Articles 28(1) and 30(2) of that regulation. Therefore, the considerations which the judge hearing the application for interim relief had taken into account in order to conclude that the condition of urgency had been established in that case were based on the premiss, expressly referred to in paragraph 47 of that order, that the information in question in that case was covered by the obligation of professional secrecy.

35 Likewise, it is clear from paragraph 84 of the order of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P‑R, EU:C:2016:142) that Evonik Degussa GmbH had challenged the finding that the information at issue did not constitute business secrets and was also not covered by the obligation of professional secrecy.

36 Moreover, the appellants in the cases that gave rise to the orders of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558) and of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P‑R, EU:C:2016:142) claimed, as emerges from paragraphs 47 and 83 respectively of those orders, that the publication of the information at issue would be liable to affect them adversely by reason of the very nature of that information.

37 By contrast, with regard to the present case, in the first place, it must be noted that the applicants do not claim that the contested material constitutes business secrets.

38 In the second place, except for the assertion that the contested material is confidential, the application for interim relief contains little specific information as to the nature and content of the material that the applicants claim is confidential.

39 In the third place, the applicants are not seeking to prove that the contested material has an intrinsic commercial sensitivity that is capable of being exploited by their competitors in the context of normal competition.

40 In the fourth place, in so far as the applicants submit that the contested material ‘involves evidence of the infringement ... revealing in detail the infringement, such as the names of customers and projects concerned by the conduct, and figures relating to prices charged and objectives pursued by participants, ... as well as the causal link between such damage and the infringement’, they point to recitals 284, 372(g) and 436 of the power cables decision as ‘clear examples of the type of ... information’ to which they are referring.

41 However, recitals 284, 372(g) and 436 of the power cables decision do not mention the ‘names of customers and projects concerned’ and do not contain ‘figures relating to prices charged’.

42 In the fifth place, it is evident from case-law that information that was secret or confidential, but that is at least five years old, must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties. Those considerations, which give rise to a rebuttable presumption, are valid both in the context of requests for confidential treatment in respect of parties intervening in actions before the EU Courts and in the context of requests for confidentiality with a view to the publication by the Commission of a decision finding an infringement of competition law (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).

43 In the present case, the contested material was gathered during the inspection in 2009. However, the applicants are not seeking to demonstrate the reasons why the contested material, by its very nature, has not lost its secret or confidential nature, despite the passing of time.

44 In the sixth place, the applicants are not seeking to prove the confidential nature of the contested material by referring to the very nature of the information, but rather by arguing that their right to an effective remedy and the principle of the presumption of innocence require that that information should not be disclosed before it has been established that that information was obtained lawfully in the context of Case T‑449/14.

45 In the seventh place, it must be noted that, according to case-law, ascertaining whether information comes within the ambit of professional secrecy generally comprises three stages, namely, first, that that information must be known only to a limited number of persons; second, that its disclosure must be likely to cause serious harm to the person who provided it or to third parties; and, third, and last, that the interests liable to be harmed by disclosure must, objectively, be worthy of protection (see, to that effect, judgment of 28 January 2015, Evonik Degussa v Commission, T‑341/12, EU:T:2015:51, paragraph 94 and the case-law cited).

46 Thus, an examination of the condition relating to urgency overlaps, to an extent, with an examination of whether the contested material must be regarded as being covered by professional secrecy, which involves, in the context of interim proceedings, an examination of the condition relating to a prima facie case.

47 In those conditions, the mere allegation – which, moreover, remains entirely unsubstantiated – that the information the disclosure of which is at issue is covered by professional secrecy cannot, due to the risk of distorting the analysis of the condition relating to urgency, be sufficient to establish the premiss that that information is covered by professional secrecy.

48 Consequently, contrary to the cases that gave rise to the orders of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558) and of 2 March 2016, Evonik Degussa v Commission (C‑162/15 P‑R, EU:C:2016:142), the analysis of urgency in the present case cannot start from the premiss that the contested material is covered by professional secrecy.

49 Having regard to these preliminary considerations, the Court must examine whether the applicants have succeeded in proving that the matter is urgent in accordance with the requirements mentioned in paragraphs 24 to 31 above.

50 At the outset, it must be noted that it is true that publication of the contested material is irreversible, in so far as the annulment of the contested decision cannot reverse the effects of its disclosure, since knowledge of that information is acquired immediately and irreversibly by those who read it (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 35).

51 However, in order to satisfy the conditions for granting interim measures and, in particular, the condition relating to urgency, the irreversible nature of the disclosure of such information must also be likely to cause serious and irreparable damage to the applicants (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 36).

52 In the present case, the applicants essentially identify three causes of harm that they claim that they would suffer if the operation of the contested decision were not suspended.

53 The applicants submit, in essence, that the publication of the power cables decision, pursuant to the contested decision, would result in the applicants being at risk of actions for damages, would damage their reputation and would compromise their right to an effective remedy, since any subsequent annulment of the power cables decision would be deprived of its ‘full effect’.

54 In the first place, as regards the risk of actions for damages, the applicants are referring to damage of a pecuniary nature.

55 According to the applicants, the alleged harm results from the fact that that information ‘could be used by [their] customers in claims relating to damage sustained’. In addition, given that a significant volume of information concerning the infringement was obtained from Nexans France, there is a risk that customers of other addressees of the power cables decision will claim damages directly from the applicants, especially since they could be held liable on a joint and several basis with the other addressees of the power cables decision.

56 In this regard, it should be pointed out that, according to established case-law, when suspension of the operation of a European Union act is sought, the grant of the interim measures requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 45 and the case-law cited).

57 In that regard, it must be observed that disclosure of the contested material may, it is true, weaken the applicants’ position in actions for damages brought against them.

58 However, as regards the alleged harm, namely exposure to actions for damages, it must be borne in mind that the obligation of an undertaking to redress the harm resulting from its infringement of the EU competition rules falls within the civil liability of that undertaking. Consequently, the decisive cause of the damage allegedly connected to the actions for damages lies, not in the disclosure of the information in question by the Commission, but in the infringement of competition law committed by the applicants (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 46).

59 That is particularly true given that the applicants themselves refer to the fact that, in the context of proceedings brought by entities which have suffered harm, the production of the power cables decision is the subject of an order. This confirms that the contested decision is not the exclusive and determining cause for access by third parties to the contested material for the purposes of an action for damages.

60 In any event, and on the assumption that the contested decision is the determining cause of the alleged harm and that that pecuniary harm is irreparable, it must be stated that the applicants have failed to provide documentary material, in accordance with the requirements set out in paragraphs 24 to 31 above, which makes it possible to establish whether the harm that they claim exists is serious in nature.

61 The applicants have provided no information whatsoever on the probable magnitude of their obligation to compensate, neither in accordance with the requirements set out in paragraph 59 of the order of 14 January 2016, AGC Glass Europe and Others v Commission (C‑517/15 P‑R, EU:C:2016:21), nor even by reference to any possible contingency provision on their balance sheet. Further, there is no information whatsoever as to the applicants’ financial capacity.

62 Consequently, it must be concluded that the applicants have failed to prove the risk of serious and irreparable harm with regard to exposure to actions for damages.

63 As regards, in the second place, the risk of damage to their reputation, the applicants maintain that the publication of the contested material ‘would cause serious harm to [their] reputation vis-à-vis customers [because] it could result in poor ratings for the [applicants] on corporate social responsibility and compliance, which are important criteria taken into account during the tender process, and could result in a huge loss of business and investment opportunity’.

64 In that regard, it must be pointed out that, in accordance with the case-law referred to in paragraph 56 above, the grant of the interim measure requested is justified only where the act at issue constitutes the decisive cause of the alleged damage.

65 It is common ground that the Commission published, on its website and in the Official Journal (OJ 2014 C 319, p. 10), a summary of the power cables decision. That summary describes the essential aspects of the cartel at issue. It states that the applicants have been held liable for the infringement and notes the reference period. The applicants are expressly mentioned in that document among the undertakings ‘considered to be the core group of participants of the cartel’. In addition, the Commission published a press release that stated the names of the participants in the cartel, including the applicants, provided details of the collusive conduct and noted that the Commission had successfully collected ‘several thousand documents’ that an employee of the applicants had deleted.

66 In such conditions, the alleged damage to the applicants’ reputation could, it is submitted, only be worsened by the publication of the power cables decision pursuant to the contested decision.

67 However, since the applicants have provided no evidence making it possible to establish whether and to what extent the publication of the power cables decision pursuant to the contested decision could worsen that damage to their reputation, it must be concluded that they have failed to prove that there is a risk of serious and irreparable harm to their reputation.

68 As regards, in the third place, the right to an effective remedy, the applicants submit that the publication of the contested material is likely to be prejudicial to them by preventing them from being able to enjoy fully any potential annulment of the power cables decision in Case T‑449/14. If that decision were annulled, on the basis that the first plea submitted by the applicants in this case were upheld and that the seizure of the contested material were found to be unlawful, the Commission would no longer have any lawful ground for publishing the contested material. Consequently, the contested material would never enter the public domain. Thus, the publication of the power cables decision pursuant to the contested decision would definitively deprive the applicants of the ‘full effect’ of such annulment. Consequently, their fundamental right to an effective remedy would be jeopardised if the Commission were to publish the contested material before the Court has adjudicated on the main action and on the applicants’ action for annulment in Case T‑449/14.

69 By that argument the applicants submit, in essence, that it is necessary, in order to respect their right to an effective remedy, to order that the operation of the contested decision be suspended until the lawfulness of the seizure of the contested material has been verified.

70 In that regard, first, it must be noted that the applicants’ argument is based on the premiss that the seizure of the contested material was unlawful.

71 Such a premiss cannot, however, be accepted in the procedural context of the present action.

72 It must be noted that, under Article 156(1) of the Rules of Procedure, ‘an application to suspend the operation of any measure adopted by an institution ... shall be admissible only if the applicant has challenged that measure in an action before the General Court’.

73 Since the objective of the action to which the present application for interim measures relates is the annulment of the contested decision, the Court cannot, in the context of these interim proceedings, order that the operation of the power cables decision be suspended.

74 Further, it must be pointed out that measures of the EU institutions are in principle presumed to be lawful and accordingly produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (see, to that effect, judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 52 and the case-law cited).

75 Since the applicants have not been granted, or even requested, a suspension of the operation of the power cables decision, which is presumed to be lawful, the judge hearing the application for interim relief is, in principle, bound by that presumption in the present interim proceedings. Even if the power cables decision were vitiated by irregularities, so long as it has not been declared to be unlawful, all persons subject to EU law are required to acknowledge that it is fully effective (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 117).

76 In the current case, there are no reasons to derogate from the principle stated in the previous paragraph. The applicants do not submit that it would be excessively formalistic in an application for the adoption of an interim measure to compel them to enter multiple pleadings (see, by analogy, order of 8 April 1965, Gutmann v Commission, 18/65 R, EU:C:1965:41, p. 137) or that the gravity of the unlawfulness allegedly vitiating the power cables decision is so obvious that it cannot be tolerated by the EU legal order and must be treated as having no legal effect, even provisional, that is to say, it must be regarded as legally non-existent (see, to that effect, judgment of 8 July 1999, Hüls v Commission, C‑199/92 P, EU:C:1999:358, paragraph 85).

77 Second, as regards, more specifically, the argument based on the respect of the right to an effective remedy, it must be stated that the applicants have not requested that the operation of the power cables decision be suspended. Since they have not fully exercised their procedural rights, the applicants cannot claim in the present case that the judge hearing the application for interim measures must remedy the alleged lacuna in their judicial protection by adopting the interim measures sought, as their judicial protection is assured by the fact that they can make an application for the suspension of the power cables decision.

78 Consequently, the applicants cannot validly submit, in the context of the present application for interim measures, that the publication of the power cables decision containing the contested material should be suspended until the lawfulness of the seizure of that material has been examined by the EU Courts.

79 In any event, it must be noted that, according to the settled case-law of the Court of Justice, the argument that harm is, by definition, serious and irreparable because it comes within the scope of fundamental freedoms cannot be accepted since it is not sufficient to allege infringement of fundamental rights in the abstract for the purpose of establishing that the harm which could result would necessarily be serious and irreparable. That case-law is not called into question by the enhanced protection of fundamental rights brought about by the Treaty of Lisbon, since those rights, in particular the right to an effective remedy relied on in the present case, already enjoyed protection under EU law before that treaty entered into force (see, to that effect, order of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 40).

80 It is true that the breach of certain fundamental rights, such as the prohibition of torture and inhuman or degrading treatment or punishment enshrined in Article 4 of the Charter of Fundamental Rights of the European Union, may, on account of the very nature of the right violated, in itself give rise to serious and irreparable harm. However, the fact remains that, in accordance with the case-law cited in paragraph 25 above, it remains for the party seeking interim measures to set out and establish the likelihood of such harm occurring in his particular case (order of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 41).

81 In the present case, however, the applicants have not established that the harm that they would specifically suffer as a result of the alleged infringement of their right to an effective remedy would be separate from the harm of being exposed to damage to their reputation and to actions for damages, the examination of which led to the conclusion set out in paragraphs 62 and 67 above that the applicants had failed to establish that the harm which they allege is serious in nature.

82 It follows from all of the foregoing that the application for interim measures must be rejected for lack of urgency, without it being necessary to consider the condition relating to a prima facie case or the need to weigh up the interests involved.

83 Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

2. The order of 12 July 2017, Nexans France and Nexans v Commission (T‑423/17 R) is set aside.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Nexans France and Nexans v Commission (Competition - Power cables - Rejection of the request for confidential treatment : Order) [2017] EUECJ T-423/17_CO (23 November 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T42317_CO.html Cite as: ECLI:EU:T:2017:835, EU:T:2017:835, [2017] EUECJ T-423/17_CO

Court of Justice of the European Communities (including Court of First Instance Decisions)