ORDER OF THE VICE-PRESIDENT OF THE COURT

10 September 2013 ( *1 )

‛Appeal — Administrative procedure — Publication of a Commission decision concerning a cartel on the European market for glass for use in motor vehicles — Suspension of operation of a Commission decision rejecting in part the applicant’s request that certain information in the decision concerning the cartel be treated as confidential’

In Case C‑278/13 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 21 May 2013,

European Commission , represented by M. Kellerbauer, P. Van Nuffel and G. Meessen, acting as Agents,

appellant,

the other party to the proceedings being:

Pilkington Group Ltd , established in Lathom (United Kingdom), represented by J. Scott, S. Wisking et K. Fountoukakos-Kyriakakos, Solicitors,

applicant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the First Advocate General, N. Jääskinen,

makes the following

Order

1By its appeal, the European Commission seeks to have set aside the order of the President of the General Court of the European Union of 11 March 2013 in Case T‑462/12 R Pilkington Group v Commission (‘the order under appeal’), by which the President granted an application for interim measures relating to Commission Decision C(2012) 5718 final of 6 August 2012 on the rejection of a request for confidential treatment submitted by Pilkington Group Ltd 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 (Case COMP/39.125 – Car glass) (‘the contested decision’).

The facts of the dispute and the proceedings before the judge hearing the application for interim measures

2The facts of the dispute are summarised at paragraphs 2 to 8 of the order under appeal as follows:

‘2

By the contested decision the … Commission rejected the request for the continuation of the non-confidential version of its Decision C (2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.125 – Car glass) (‘the 2008 Decision’), as published in February 2010 on the website of the “Competition” Directorate General.

3In the 2008 Decision, the Commission found that an infringement of Article 81 EC had been committed between 1998 and 2003 within the European Economic Area (EEA) by [Pilkington Group Ltd (‘Pilkington’)], and other companies belonging to its group, by a number of companies belonging to the French Saint‑Gobain group and the Japanese Asahi group – to which AGC Glass Europe, among others, belongs – and by the Belgian company Soliver with regard to sales of glass for new vehicles and replacement parts for motor vehicles (“the car glass cartel”). As a consequence, the Commission imposed fines totalling more than EUR 1.3 billion on the members of that cartel, the [Pilkington] group being fined EUR 370 million.

4After taking into account requests for confidential treatment submitted by the addressees of the 2008 Decision, the Commission published, in February 2010, a full-text provisional non-confidential version of that decision on its website. That publication was not challenged by [Pilkington].

5By letter of 28 April 2011, the Commission informed [Pilkington] of its intention to publish, for reasons of transparency, a fuller non-confidential version of the 2008 Decision and to reject, to that end, several requests for confidential treatment that it had received concerning (i) customer names, product names or descriptions of products, as well as any other information which might identify individual customers (“category I information”), (ii) the number of parts supplied by [Pilkington], the share of the business of a particular car manufacturer, pricing calculations or price changes etc. (“category II information”), and (iii) information which, according to [Pilkington], might identify certain members of its staff who were allegedly involved in implementing the cartel (“category III information”). The Commission invited [Pilkington], should it not agree, to refer the matter to the Hearing Officer pursuant to 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 ).

6Noting that the proposed more complete version contained a considerable amount of information which had not been published in February 2010 for reasons of confidentiality, [Pilkington], by letter of 30 June 2011, informed the Hearing Officer that it objected to publication of a version of the 2008 Decision which would be more complete than the version published in February 2010, maintaining that category I and II information had to be protected since it constituted business secrets, whilst disclosure of category III information would make it possible to identify the natural persons, namely employees of [Pilkington] who had allegedly been involved in implementing the cartel. [Pilkington] thus requested confidential treatment for all that information.

7In the contested decision, signed ‘[f]or the Commission’, the Hearing Officer, whilst accepting the confidential nature of certain information referred to by [Pilkington], none the less rejected the majority of its requests.

8[Pilkington] was notified of the contested decision on 9 August 2012.’

3By application lodged at the Registry of the General Court on 19 October 2012, Pilkington brought an action for annulment of the contested decision, which is still pending before that court. In support of that action, it argues, in essence, that the publication at issue is, on the one hand, an infringement of the Commission’s duty of confidentiality under Article 339 TFEU and Article 28 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 ) and, on the other, an infringement of that institution’s duty to protect personal data under Article 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’), inasmuch as the more complete version of the 2008 Decision contains business secrets, covered by the obligation of professional secrecy, and information enabling its employees to be identified.

4By separate document, lodged at the Registry of the General Court the same day, Pilkington brought an application for interim measures, requesting the President of the General Court to:

—

suspend the operation of the contested decision until the General Court has ruled on the substantive action;

—

order the Commission to refrain from publishing a version of the 2008 Decision which is more complete, in relation to Pilkington, than the version published in February 2010 on the Commission’s website; and

—

order the Commission to pay the costs.

5In its observations on the application for interim measures, lodged at the Registry of the General Court on 11 January 2013, the Commission contended that the Court should:

—

reject the application for interim measures, and

—

order Pilkington to pay the costs.

The order under appeal

6Having rejected a number of applications for leave to intervene at paragraphs 14 to 22 of the order under appeal, the President of the General Court went on to examine the application for interim measures, starting at paragraph 23 of the order.

7The President of the General Court pointed out, at paragraphs 24 to 27 of the order under appeal, that the two conditions relating, respectively, to urgency and to the establishment of a prima facie case are cumulative and that the judge hearing an application for interim measures must also weigh up the interests involved. He observed that the judge hearing such an application enjoys a broad discretion in determining the manner in which those various conditions are to be examined and decided to examine first of all, together, those issues relating to the weighing up of the interests involved and urgency.

8At paragraphs 28 and 29 of the order under appeal, referring to the orders of the President of the Court of Justice in Joined Cases 76/89 R, 77/89 R and 91/89 R Radio Telefis Eireann and Others v Commission [1989] ECR 1141 , paragraph 15, and Joined Cases C-182/03 R and C-217/03 R Belgium and Forum 187 v Commission [2003] ECR I-6887 , paragraph 142, the President of the General Court observed that the weighing up of the various interests involved requires the judge hearing the application for interim measures to determine whether or not the applicant’s interest in obtaining the interim measures sought outweighs the interest in immediate application of the contested measure by examining, more specifically, whether annulment of that measure by the Court when ruling on the main application would allow the situation which would have been brought about by its immediate operation to be reversed, and, conversely, whether suspension of its operation would prevent it from being fully effective in the event of the main application being dismissed. Referring to the order of the President of the Court of Justice in Case C-313/90 R CIRFS and Others v Commission [1991] ECR I-2557 , paragraph 24, the President of the General Court added that the decision made by the judge hearing an application for interim measures is by its nature interim in the sense that it must not either prejudge the future decision on the substance or render it illusory by depriving it of effectiveness.

9The President of the General Court went on to point out, at paragraphs 31 and 32 of the order under appeal, that in order to preserve the effectiveness of a judgment annulling the contested decision, Pilkington must be able to ensure that the Commission cannot unlawfully publish the disputed information, as such a judgment would be rendered illusory and deprived of effectiveness if the application for interim measures were to be dismissed, since the consequence of that dismissal would be that the Commission would be free immediately to publish that information, notwithstanding the fact that, even if the disputed information were actually published, that would probably not have the effect of depriving Pilkington of an interest in bringing proceedings for annulment of the contested decision. Consequently, the President of the General Court stated, at paragraph 33 of the order under appeal, that the interest defended by Pilkington must prevail over the Commission’s interest in the dismissal of the application for interim measures, a fortiori since the grant of the interim measures requested amounted to no more than maintaining, for a limited period, the status quo which had existed since February 2010.

10In so far as the Commission invoked the interest of the potential victims of the car glass cartel who will need the category I and II information in order to establish the requirements of any claim in damages, the President of the General Court stated, at paragraphs 35 and 36 of the order under appeal, that the Commission’s arguments did not prevail over Pilkington’s interest in the present case because, inter alia, as regards the national limitation rules alluded to, the Commission failed to indicate what would prevent those victims from bringing their actions for damages in due time, whilst obtaining a stay of national proceedings until judgment is given in the main action.

11At paragraph 38 of the order under appeal, the President of the General Court stated that in view of the fact that, following the weighing up of interests, the balance was thus in Pilkington’s favour, there was clearly an urgent need to protect the interest defended by that company, provided that it was likely to suffer serious and irreparable harm in the event of its application for interim measures being dismissed. The President pointed out that, according to Pilkington, the situation which would result from publication of the more complete version of the 2008 decision could not be undone.

12The President of the General Court concluded, at paragraphs 39 to 42 of the order under appeal, that the condition relating to urgency was not met so far as the category III information was concerned, essentially because Pilkington had failed, in his view, to establish that the measures sought were necessary to protect an interest of its own.

13On the other hand, with regard to the category I and II information, the President of the General Court found, at paragraphs 43 to 45 of the order under appeal, that that condition was, in principle, satisfied. He stated that if it transpired that publication of the information at issue was incompatible with the right to the protection of professional secrecy, enshrined in Article 339 TFEU and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, (‘the ECHR’), Pilkington’s fundamental right to such protection could be irreversibly deprived of any meaning. Moreover, Pilkington’s fundamental right to an effective remedy, enshrined in Article 6 of the ECHR and Article 47 of the Charter, might be jeopardised if the Commission were allowed to publish that information before the General Court had adjudicated on the main action.

14At paragraphs 46 et seq. of the order under appeal, the President of the General Court rejected the arguments to the contrary put forward by the Commission. He stated, at paragraph 47 of the order, that there was no factual basis for the Commission’s assertion that Pilkington had not alleged infringement of a fundamental right. He also found, at paragraphs 48 to 50 of the order, that the Commission’s argument that the publication of the information at issue was the foreseeable consequence of acts which Pilkington had itself committed – namely that company’s unlawful conduct – such that this consequence could not be attributed to an infringement of its fundamental rights, as held by the European Court of Human Rights in Gillberg v Sweden [GC], (no 41723/06, §§ 67 and 72, of 3 April 2012), could not succeed because the present case concerns the confidential nature of certain information, unlike the case which gave rise to that judgment.

15Moreover, the President of the General Court stated, at paragraphs 52 and 53 of the order under appeal, that it was not possible to follow the earlier case‑law (orders of the President in Case T-198/03 R Bank Austria Creditanstalt v Commission [2003] ECR II-4879 , and Case T-201/04 R Microsoft v Commission [2004] ECR II-4463 ) in which the President of the General Court, in response to arguments relating to the irreversible nature of the publication of sensitive information that might be used in actions for damages against the undertaking concerned, had treated as purely financial – and not normally therefore regarded as irreparable – the damage which might be caused to that undertaking by the information being used in such a way. He added that, at least since the entry into force – on 1 December 2009 – of the Treaty of Lisbon, which has raised the Charter to the level of primary European Union law and provides that it is to have the same legal value as the Treaties (first subparagraph of Article 6(1) TEU), an imminent risk of a serious and irreparable breach of the fundamental rights conferred by Articles 7 and 47 of the Charter in that field was to be regarded, in itself, as harm justifying the grant of the interim protection requested.

16The President of the General Court went on, at paragraphs 54 to 56 of the order under appeal, to dismiss as irrelevant to the present case other orders relied on by the Commission, namely the order of the President in Case C-43/98 P(R) Camar v Commission and Council [1998] ECR I-1815 , and the order of the President of 18 March 2011 in Case T‑457/09 R Westfälisch-Lippischer Sparkassen- und Giroverband v Commission , not published in the ECR, on the ground that those cases concerned mere restrictions of the exercise of the fundamental rights in issue, and the order of the President in Case C-7/04 P(R) Commission v Akzo and Akcros [2004] ECR I-8739 , on the ground that in the case which gave rise to that order, which concerned whether or not documents seized by the Commission in the course of an inspection were confidential, the issue was not the public’s access to those documents, but the very different question of whether the Commission was entitled to read them, bearing in mind that the Commission itself is required to respect professional secrecy.

17At paragraphs 58 et seq. of the order under appeal, the President of the General Court examined the condition relating to the establishment of a prima facie case. After observing, at paragraph 58, that that condition is satisfied where at least one of the pleas in law put forward by the applicant for interim measures in support of the main action appears, prima facie, to be relevant and in any event not unfounded, he went on to state, at paragraph 59 of the order, that in the specific context of interim protection for information alleged to be confidential, the judge hearing the application for interim measures – if he is not to disregard the intrinsically ancillary and provisional nature of proceedings for interim measures and the imminent risk of negation of the fundamental rights relied on by the party seeking interim protection of those rights – may, as a rule, conclude that there is no prima facie case only where the information in question is obviously not confidential.

18At paragraph 60 of the order under appeal, the President of the General Court examined the second plea raised by Pilkington in support of its action in the main proceedings, by which it complains that the Commission has, inter alia, infringed Article 339 TFEU and Articles 28(1) and 30(2) of Regulation No 1/2003 in deciding to publish information which should be regarded as business secrets and whose confidentiality should thus be protected. The President also pointed out that, according to Pilkington, the Commission erred in its assessment of whether there were overriding interests permitting disclosure of that information.

19The President concluded, at paragraphs 61 to 65 of the order under appeal, that the category I and II information, as a whole, was commercially sensitive, notwithstanding the fact that it is more than five years old, essentially because it discloses Pilkington’s commercial practices regarding car manufacturers which remain its customers.

20The President also stated, at paragraphs 67 to 73 of the order under appeal, that, without prejudice to the merits of the arguments put forward by the Commission, there was nothing to support the conclusion that there was clearly no prima facie case. The President pointed out that the assessment of the merits of the main action called for a very detailed examination of the information for which confidential treatment was sought, as well as a weighing up of Pilkington’s interest and the public interest in transparency, which could not be carried out in proceedings for interim measures. He also stated that the fact that the Hearing Officer recognised that certain items of both the category I and the category II information were secret was in itself an indication that the information at issue cannot, on the face of it, be classified en bloc – because of its very nature – as clearly neither secret nor confidential. Moreover, with regard to the fact that the information at issue had been in existence for a long time, the President found that Pilkington’s arguments that that information was nevertheless confidential in the circumstances of the case were not wholly irrelevant.

21For all those reasons, the President of the General Court decided to grant Pilkington’s application for interim measures, in so far as it sought to prevent publication by the Commission of the category I and II information, and to dismiss the application as to the remainder. Points 2 and 3 of the operative part of the order under appeal are worded as follows:

‘(2)

Operation of [the contested decision] is suspended in relation to two categories of information, as referred to in point 6 of Decision C(2012) 5718 final, concerning, first, customer names, product names or descriptions of products, as well as any other information which might identify individual customers and, second, the number of parts supplied by [Pilkington], the share of the business of a particular car manufacturer, pricing calculations, price changes etc.

(3)

The Commission is ordered to refrain from publishing a version of [the 2008 decision] which is more complete, in relation to the information in the two categories referred to in point 2 above, than that published in February 2010 on the Commission’s website.’

The appeal

22The Commission relies on two grounds of appeal, alleging, respectively:

—

an error of law in the assessment of the condition relating to urgency, and

—

in the alternative, an error of law in the assessment of condition relating to the establishment of a prima facie case in conjunction with the condition relating to urgency.

23The final section of the appeal is devoted to the potential consequences, in the Commission’s view, of the decision adopted by the President of the General Court in the order under appeal. The Commission maintains, in essence, that if European Union courts hearing applications for interim relief adopt the approach set out in the order under appeal, it will become impossible in practice for it to publish information on competition law infringements under Article 30 of Regulation No 1/2003 in a timely manner, since it will in future be sufficient for an undertaking to claim that information is confidential in order to prevent its publication until the court hearing the substantive application has ruled on confidentiality. According to the Commission, the case‑law thus established by the President of the General Court will also have a negative effect on the conduct of administrative proceedings for the enforcement of the competition rules, since it may also be applied at the stage at which access is granted to the statement of objections.

24Pilkington submits that the Commission’s argument is inadmissible because it does not raise any pleas in law and, in any event, the Commission’s fears are unfounded. With regard to the possible application, by analogy, of the approach adopted by the President of the General Court as regards access to the statement of objections, Pilkington claims that there is a significant difference between disclosure of information to a limited number of companies and disclosure on the internet to the public at large.

The first ground of appeal, alleging an error of law in the assessment of the condition relating to urgency

Arguments of the parties

25The Commission submits that the President’s assessment of the condition relating to urgency at paragraphs 44 to 56 of the order under appeal is based on an erroneous interpretation of Article 104(2) of the Rules of Procedure of the General Court, in so far as the President took the view that the alleged breach of European Union law constitutes harm justifying the suspension of operation of a decision without there being any need to assess whether that breach entails serious and irreparable harm in the individual circumstances of the case. In fact, the damage to be established by Pilkington in order to show that the condition relating to urgency is satisfied must be serious and irreparable, that is, it could not be remedied either by a decision on the main application or a separate action for damages. At paragraphs 45 and 53 of the order under appeal, the President of the General Court assumed the existence of ‘harm justifying the grant of the interim protection requested’ merely on the basis of an alleged breach of European Union law, without assessing whether Pilkington had made out a plausible case that, in the specific circumstances of the case, it was likely to sustain serious and irreparable harm if the protection requested was not granted.

26According to the Commission, the requirement to determine whether urgent measures are necessary by assessing the risk of serious and irreparable harm applies, without distinction, in all fields of law, including situations in which an applicant seeks interim relief to secure suspension of the operation of a decision to publish information which it claims is confidential. The Commission states that the fact that the acquisition of knowledge of such information cannot be reversed once it has occurred does not mean that the disclosure of such information previously kept secret would, in the context of an application for interim relief, necessarily lead to a risk of serious and irreparable harm in all cases. That is what the President of the General Court concluded, correctly, in the orders cited above in Bank Austria Creditanstalt v Commission (paragraphs 50 to 62) and Microsoft v Commission (paragraphs 253 to 256).

27The Commission claims that undertakings involved in competition law proceedings usually have predominantly economic interests in protecting the secrecy of their information. The extent to which disclosure of that information would cause irreparable harm depends on a combination of factors, such as the commercial usefulness of the information for the those who provide it and other market participants. Thus, the likelihood that disclosure of that information would cause serious and irreparable harm which cannot be the subject of subsequent financial compensation can be determined only through an assessment of the consequences of such disclosure in the specific circumstances of the case under examination.

28Moreover, the Commission maintains that the requirement to determine whether the condition relating to urgency is satisfied by assessing the risk of serious and irreparable harm in the light of the specific circumstances of the case is also applicable where interim relief is sought against a decision that allegedly infringes fundamental rights. It points out, in particular, that in the order in Camar v Commission and Council (paragraphs 46 and 47), the President of the Court of Justice rejected the argument that the damage pleaded would, by definition, be irreparable since it was ‘connected with the field of fundamental freedoms’, and held that it is not enough to allege infringement of fundamental rights in the abstract for the purpose of establishing that the harm which could result would necessarily be irreparable.

29According to the Commission, the President of the General Court erred, at paragraph 54 of the order under appeal, in dismissing as irrelevant the order in Camar v Commission and Council on the ground that, in the case which gave rise to that order, the applicant was able to allege only a ‘restriction’ of his fundamental rights, whereas in the present case, if the application for interim relief were dismissed, Pilkington would be ‘utterly deprived of the fundamental rights it has pleaded’. The order in Camar v Commission and Council did not make any such distinction as regards the question whether an applicant invoking a breach of fundamental rights must demonstrate the likelihood of ‘irreparable’ harm.

30As regards the relevance in that regard of the entry into force of the Treaty of Lisbon and the resulting enhanced protection of the rights enshrined in the Charter – factors alluded to at paragraph 53 of the order under appeal – the Commission states that the President of the General Court does not explain how those factors may have affected the conditions for interim relief laid down in Article 104(2) of the Rules of Procedure of the General Court, particularly in view of the fact that both the right to respect for private life, embodied in Article 8 of the ECHR and Article 7 of the Charter, and the right to an effective judicial remedy, enshrined in Article 6 of the ECHR and Article 47 of the Charter, have been protected as general principles of European Union law at least since the early 1980s. The approach adopted by the President of the General Court goes against long-standing case-law according to which the alleged breach of a higher-ranking rule of law cannot be sufficient on its own to establish that any damage caused is serious and irreparable (order of the President in Case C-159/98 P(R) Antilles néerlandaises v Council [1998] ECR I-4147 , paragraph 62, and Case C-377/98 R Netherlands v Council [2000] ECR I-6229 , paragraph 45).

31According to the Commission, while the high intrinsic value of fundamental rights may imply that certain violations of such rights cannot be made good by financial compensation, Article 278 TFEU, which provides that actions brought before the Court do not have a suspensory effect, would be deprived of its practical effect if invoking a breach of fundamental rights automatically sufficed for the purpose of establishing the urgency of interim relief. The Commission criticises the President of the General Court for dismissing, without first examining it, the possibility that financial compensation might be sufficient to make good the harm to Pilkington’s economic interest in the confidentiality protection sought, in spite of the fact that that company essentially argued that disclosure of the purportedly confidential information could put it at a disadvantage in competition terms vis-à-vis its competitors or customers. Therefore, the President’s approach fails to take account of the fact that the economic damage which might result from the alleged breach of Pilkington’s right to confidentiality could be purely financial.

32While acknowledging that the disclosure of confidential information may, because of its irreversible nature, lead to serious and irreparable harm in an individual case, the Commission submits that the conditions set out in Article 104(2) of the Rules of Procedure of the General Court, together with the non-suspensory effect of actions against European Union acts established in Article 278 TFEU, require the judge hearing an application for interim measures to assess, by reference to the specific circumstances of the case, the likelihood of serious and irreparable harm occurring in the absence of the interim relief requested, it not being possible to assume such harm will occur simply because a breach of fundamental rights is alleged.

33Pilkington submits that the Commission’s approach has no basis in case-law. It is manifestly incorrect that serious and irreparable harm affecting a fundamental right should be perceived as a special type of harm which may be disregarded.

34Pilkington concurs with the Commission’s view that, under settled case‑law, the condition relating to urgency is met only where serious and irreparable harm is likely to occur if the interim relief sought is not granted. However, that company shares the view of the President of the General Court that such harm may be found in the harm caused to fundamental rights that stems from their serious and irreparable breach. Contrary to the Commission’s submissions, the President of the General Court examined the specific harm Pilkington was likely to suffer if the information at issue was published and concluded that there was a risk that its fundamental rights would be seriously and irreparably harmed, thus constituting serious and irreparable harm for that company.

The Court’s assessment

39It should be noted in that regard that at paragraphs 44 and 45 of the order under appeal, the President of the General Court concluded that there was a risk of serious and irreparable harm on the basis that Pilkington’s fundamental rights would be seriously and irreversibly infringed by the publication of its alleged business secrets in circumstances in which no effective remedy would be available to it. It is apparent from paragraphs 52 and 53 of the order that the President of the General Court decided not to follow that court’s earlier case-law according to which disclosure of confidential information of a commercial nature, in breach of the fundamental rights of the party seeking interim relief, does not necessarily give rise to serious and irreparable harm. In support of that line of reasoning, the President referred, inter alia, to the entry into force of the Treaty of Lisbon and the enhanced protection of the rights enshrined in the Charter resulting from it.

42That is the case, inter alia, where a party seeks interim measures in order to prevent the publication of commercial data which that party claims are covered by the obligation of professional secrecy. Indeed, as the Commission correctly observed, the extent to which disclosure of such information will cause serious and irreparable harm depends on a combination of factors, such as, inter alia, how significant the information is in commercial terms for the undertaking providing the information and its usefulness for other market participants.

43In so far as the President of the General Court stated, at paragraph 54 of the order under appeal, that Pilkington would be utterly deprived of its rights, since the fundamental rights at issue in the present case would be violated, whereas the case which gave rise to the order in Camar v Commission and Council concerned a mere restriction of the rights in question, it is sufficient to note that the difference between those two cases does not render that order irrelevant. Indeed, that difference does not in any way alter the requirement referred to above for the party seeking interim measures to set out and establish the likelihood of serious and irreparable harm occurring in his particular case.

44It is apparent from all the foregoing considerations that the President of the General Court erred in law in considering, in particular at paragraphs 44 and 45 of the order under appeal, that the alleged breach of Pilkington’s fundamental right to protection of professional secrecy, enshrined in Article 339 TFEU and Article 8 of the Charter, and of that company’s right to an effective judicial remedy, enshrined in Article 6 of the ECHR and Article 47 of the Charter, were in themselves sufficient for the purpose of establishing the likelihood of serious and irreparable harm in the particular circumstances of the case.

45It should be noted, however, that if the grounds of a decision of the General Court disclose an infringement of European Union law but its operative part is shown to be well founded on other legal grounds, such infringement is not one which should bring about the annulment of that decision and it is appropriate to carry out a substitution of grounds (see, to that effect, Case C-30/91 P Lestelle v Commission [1992] ECR I-3755 , paragraph 28, and Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I-6513 , paragraph 187 and case-law cited).

49However, according to the Commission, the harm alleged by Pilkington in the present case is purely financial, since, by objecting to publication of the information at issue, that company is seeking to protect its commercial and financial interests.

58It cannot therefore be inferred from the findings at paragraphs 51 to 55 above that, where the Commission grants access to a statement of objections, that will necessarily cause serious and irreparable harm in the same way as the publication of a definitive decision finding an infringement.

59In the light of the foregoing considerations, the President of the General Court was correct to find that the condition relating to urgency was satisfied in the present case, since it had been established to the requisite legal standard that Pilkington was likely to suffer serious and irreparable harm.

60The first ground of appeal must therefore be rejected.

The second ground of appeal, alleging an error of law in the assessment of the condition relating to the establishment of a prima facie case, in conjunction with the condition relating to urgency

Arguments of the parties

61By its second ground of appeal, put forward as an alternative argument, the Commission maintains that the President of the General Court imposed on it, in particular at paragraph 59 of the order under appeal, the burden of proving that no prima facie case could be made out by requiring it to demonstrate that the information at issue is clearly not confidential.

62The Commission refers to established case-law to the effect that the particular strengths or weaknesses of the pleas relied on to show a prima facie case are to be taken into consideration by the judge in his assessment of urgency and, if appropriate, of the balance of interests. As the President of the General Court based his assessment of urgency solely on the assumption that any disclosure of confidential information would infringe fundamental rights, he was not entitled simply to carry out an abstract assessment of the condition relating to the establishment of a prima facie case. According to the Commission, the onus was not on it to demonstrate that that information was clearly not confidential but on Pilkington to establish that the information in question was confidential, an especially difficult task because the information is over five years old.

63The Commission also claims that, at paragraphs 69 and 70 of the order under appeal, the President of the General Court disregarded the fact that the Hearing Officer’s task was not to demonstrate that certain information was not confidential but merely to examine whether Pilkington had sufficiently substantiated its confidentiality claims. Moreover, the Commission’s arguments were misrepresented, since it referred to the fact that the information in question was more than five years old and had been exchanged among the cartel members not in order generally to rule out any possibility that the information may be regarded as confidential but simply in order to point out that it was for Pilkington to explain, with regard to each individual item of information, why information more than five years old and known to other cartel members remained confidential. Far from showing him to be inconsistent, the fact that the Hearing Officer accepted some of Pilkington’s confidentiality claims demonstrates that the officer was willing to accept those claims, provided that Pilkington put forward sufficient reasons to justify the confidential treatment of the information in question.

64According to Pilkington, the President of the General Court correctly applied established case-law which calls for a concrete assessment of the arguments put forward by the party seeking interim relief, in order to determine whether the prima facie test is met. It claims that a higher standard than the prima facie test would be contrary to interim measures case-law and completely alien to the provisional assessment which the judge hearing an application for such measures is required to carry out. In any event, Pilkington submits that the Commission’s observations in that regard are not only incorrect but also irrelevant in the present case because Pilkington succeeded in establishing a strong prima facie case, as acknowledged by the President of the General Court at paragraphs 67 to 72 of the order under appeal.

The Court’s assessment

65By its second ground of appeal, alleging an error of law in the assessment of the condition relating to the establishment of a prima facie case, in conjunction with the condition relating to urgency, the Commission claims, in essence, that the President of the General Court reversed the burden of proof as regards the examination of the condition relating to the establishment of a prima facie case, such a reversal being especially open to criticism, in its view, because the President of the General Court gave too broad an interpretation of the condition relating to urgency.

66In the light of the substitution of grounds made in paragraphs 46 et seq. above, the Commission’s arguments concerning the effect of the President of the General Court’s approach to the condition relating to urgency on the analysis of whether a prima facie case had been made out should be dismissed at the outset. As it is now established that that condition has been met, not simply on the basis of a breach of fundamental rights as such but essentially because it is impossible to quantify adequately the harm pleaded in the present case, those arguments cannot succeed.

69In any event, the President of the General Court based his concrete analysis on whether there was a prima facie case on specific criteria which in fact reflect the rules governing evidence and the burden of proof referred to in the considerations set out at paragraph 58 of the order under appeal and confirmed at paragraph 67 above.

70Indeed, at paragraph 68 of the order under appeal, the President of the General Court held that, in the light of the volume of the information covered by the requests for confidentiality, consideration of whether the Commission made errors in rejecting the majority of those confidentiality requests raised complex questions the resolution of which called for a very detailed examination, which could not be carried out in proceedings for interim measures.

71Moreover, the President of the General Court did not reverse the burden of proof at paragraph 69 of the order under appeal by taking the view that the fact that the Hearing Officer recognised that certain items of both the category I and the category II information were secret undermined the officer’s argument that, as it had been exchanged between members of the car glass cartel, that information had been transformed into information that was generally known, or by reaching the conclusion that it was not manifestly apparent from the fact that Pilkington had made that information known to the other members of the cartel that that information was available, if not to the general public, at the very least to certain specialist circles. Prima facie, those inferences, by which the President of the General Court addressed specific arguments put forward by the Commission, appear to be logical and do not, in principle, disclose any error of law.

73Nor did the President of the General Court reverse the burden of proof by considering, at paragraph 70 of the order under appeal, that the specific, detailed arguments put forward by Pilkington (set out at paragraphs 63 to 65 of the order) were not wholly irrelevant for the purpose of establishing that the category I and II information had remained secret because of its very nature, notwithstanding the fact that it was more than five years old, or in finding that it could not ‘clearly be ruled out’ that the exceptional rule laid down in Article 4(7) 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 ) may be relevant. By those observations, the President was simply pointing out that, prima facie, those arguments did not appear to be unfounded, in accordance with the case-law cited at paragraph 67 above.

74It follows from the foregoing that the President of the General Court did not err in law in his application of the condition relating to the establishment of a prima facie case and, accordingly, the second ground of appeal must be rejected.

75It follows that the appeal must be dismissed in its entirety, since the arguments put forward in the third part of the appeal in no way constitute autonomous grounds of appeal.

Costs

76Under 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. Since Pilkington has applied for an order that the Commission pay the costs and the Commission has been unsuccessful in all its pleas, it must be ordered to pay the costs.

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

1.The appeal is dismissed.

2.The European Commission is ordered to pay the costs.

[Signatures]

( *1 ) Language of the case: English.