Provisional text

ENORDER OF THE VICE-PRESIDENT OF THE COURT

4 February 2025 (*1)

( Appeal – Interim relief – Article 278 TFEU – Application for suspension of operation of a judgment of the General Court of the European Union – Access to documents of the European Commission – Declarations of absence of conflict of interests given by members of the Commission negotiating team for the purchase of vaccines against COVID-19 – Commission decision refusing access to the identity and professional status of those persons )

In Case C‑632/24 P-R,

APPLICATION for suspension of operation pursuant to Article 278 TFEU, lodged on 27 September 2024,

European Commission, represented by A. Bouchagiar, M. Burón Pérez, G. Gattinara and A. Spina, acting as Agents,

appellant,

the other parties to the proceedings being:

Fabien Courtois, and the other parties whose names appear in the annex, (*1) represented by A. Durand, avocat,

applicants at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

1By its application for interim measures, the European Commission asks the Court of Justice to order, pursuant to Article 278 TFEU, the suspension of operation of point 2 of the operative part of the judgment of the General Court of the European Union of 17 July 2024, Courtois and Others v Commission (T‑761/21, ‘the judgment under appeal’, EU:T:2024:477), in so far as it annuls Commission Decision C(2022) 1359 final of 28 February 2022, which was adopted pursuant to Article 4 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), and which granted Mr Fabien Courtois and the other natural persons whose names are set out in the annex partial access to certain documents relating to the purchase of vaccines by that institution in the context of the COVID-19 pandemic (‘the decision at issue’), and the French-language version of that decision which was communicated to them on 31 March 2022, in so far as the Commission refused wider access to the declarations by the members of the team who negotiated the purchase of COVID-19 vaccines (‘the negotiation team’) of absence of conflict of interests, on the basis of Article 4(1)(b) of that regulation.

2That application has been made in parallel with an appeal brought by the Commission on 27 September 2024, pursuant to Article 56 of the Statute of the Court of Justice of the European Union, seeking to have the judgment under appeal set aside.

Background to the dispute

3The background to the dispute is set out in paragraphs 2 to 17 of the judgment under appeal. For the purposes of the present proceedings, it can be summarised as follows.

4On 17 June 2020, in the context of the COVID-19 pandemic, the Commission published the Communication entitled ‘EU Strategy for COVID-19 vaccines’ (COM(2020) 245 final). That strategy, which was aimed at speeding up the development, manufacturing and deployment of COVID-19 vaccines, was based on two pillars. The first was to secure sufficient production of vaccines in the European Union and thereby sufficient supplies for its Member States through advance purchase agreements with vaccine producers via the Emergency Support Instrument, as activated by Council Regulation (EU) 2020/521 of 14 April 2020 activating the emergency support under Regulation (EU) 2016/369, and amending its provisions taking into account the COVID-19 outbreak.(OJ 2020 L 117, p.3). The second was to adapt the European Union’s regulatory framework to the urgency at that time and to make use of the then existing regulatory flexibility to accelerate the development, authorisation and availability of vaccines, while maintaining the standards for vaccine quality, safety and efficacy.

5From that perspective, the Commission stated that Member States would participate in the process from the start and that all participating Member States would be represented in a steering board, which would assist on all aspects of the advance purchase agreements before signature. The Commission also stated that a negotiation team composed of the Commission and a small number of Member State experts would negotiate the advance purchase agreements for COVID-19 vaccines, which were to be concluded on behalf of all the participating Member States. The Commission also stated that it would be responsible for the procurement procedure on behalf of the Member States and for the advance purchase agreements concluded.

6On 24 May 2021, by a letter addressed to the President of the Commission and by email of the same date to the Secretariat-General of the Commission, two lawyers requested, ‘on behalf of the 86 000 first petitioners of the platform “https://dejavu/legal/”’ whom they represented and among whom were the applicants at first instance (‘the applicants’), access, pursuant to Regulation No 1049/2001, to documents relating to the purchase, by the Commission and on behalf of the Member States of the European Union, of vaccines in the context of the COVID-19 pandemic.

7That initial request related to the purchase agreements signed by the Commission with the vaccine manufacturers, the identity and professional or institutional role of the EU representatives who had taken part in the negotiations with those manufacturers, and the declarations of direct or indirect interests between those representatives and those manufacturers.

8On 30 July 2021, the Director-General of the Directorate-General (DG) for Health and Food Safety of the Commission replied that she had identified 46 documents corresponding to that request, 22 of which were declarations of absence of conflict of interests (‘the declarations of absence of conflict of interests’), and that partial access was granted to all of those documents, with the exception of 17 documents called ‘draft term sheets’.

9As regards the declarations of absence of conflict of interests, the identity of their signatory was redacted on the basis of the protection of privacy and the integrity of the individual, provided for in Article 4(1)(b) of Regulation No 1049/2001. In addition, only a single copy was sent to the applicants, on the ground that those documents differed only with respect to the name of the signatory, the signature and the date of signature.

10On 13 August 2021, the applicants submitted, on the basis of Article 7(2) of Regulation No 1049/2001, a confirmatory application requesting the Commission to reconsider its position with regard to all the documents to which they had been refused access, either in part or in full.

11On 24 September 2021, the absence of a response to that application gave rise to an implied rejection decision, in accordance with Article 8(3) of Regulation No 1049/2001.

12On 28 February 2022, and after consulting the pharmaceutical undertakings concerned in accordance with Article 4(4) of Regulation No 1049/2001, the Commission adopted the decision at issue, which was notified to the applicants in English on 1 March 2022. In particular, in that decision, the Commission made changes to the composition of the list of documents corresponding to the request for access to documents, but maintained its position relating to the partial access to the declarations of absence of conflict of interests.

13On 31 March 2022, the French-language version of the decision at issue was communicated to the applicants.

The procedure before the General Court and the judgment under appeal

14By application lodged at the Registry of the General Court on 6 December 2021, the applicants brought an action for the annulment of the implied rejection decision. They subsequently amended their heads of claim so as to refer also to the decision at issue and the French-language version of that decision.

15In paragraph 57 of the judgment under appeal, the General Court recalled that, as is clear from the case-law of the Court of Justice, personal data may be transmitted to a third party on the basis of Regulation No 1049/2001 only where that transmission fulfils the conditions laid down in Article 9(1)(a) or (b) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39) and constitutes lawful processing in accordance with the requirements of Article 5 of that regulation.

16As regards the condition set out in Article 9(1)(b) of Regulation 2018/1725, according to which the person requesting access to personal data must establish that their disclosure is necessary for a specific purpose in the public interest, the General Court found, in paragraphs 68, 69, 79 and 85 of the judgment under appeal, that that condition was satisfied in the present case, as the applicants had demonstrated that access to the identity of the members of the negotiation team who signed declarations of absence of conflict of interests was necessary for the purpose of ascertaining their impartiality. By contrast, in paragraph 86 of that judgment, the General Court found that the disclosure of the date of signature of those declarations and the handwritten signature of the members of the negotiation team was not necessary for the purpose of achieving that objective.

17In paragraph 79 of the judgment under appeal, as regards the weighing up of the interests involved provided for in Article 9(1)(b) of Regulation 2018/1725, the General Court held that as the applicants had demonstrated the need for the transfer of the personal data and the Commission correctly considered that there was a risk that the privacy of the members of the negotiation team concerned would be harmed, the Commission was required to weigh up the interests involved.

18In that regard, in paragraph 80 of the judgment under appeal, the General Court observed that, as was clear from the decision at issue, the Commission had taken into consideration, first, the technical role in the award process played by the members of the negotiation team and, second, the fact that the applicants had had access to information through the partial disclosure of the subject matter discussed in the contractual documents and through the disclosure of the anonymised version of the declarations that there was no conflict of interests and that confidentiality had been observed.

19In paragraph 81 of the judgment under appeal, the General Court found that, in so doing, the Commission had not explained how the fact that the role of the members of the negotiation team was solely technical should take precedence over the objective of ascertaining the absence of any conflict of interests. In paragraph 82 of that judgment, it added that the decision at issue did not expressly reveal the additional considerations relied on in the action brought before it, relating to the weighing up of the various competing interests and, in particular, those relating to the position that the members of the negotiation team might occupy in a hierarchy.

20In paragraphs 83 and 84 of the judgment under appeal, the General Court found that, while the applicants were aware of, inter alia, the content of the declaration of absence of conflict of interests signed by each member of the negotiation team, the specific purpose in the public interest pursued by the applicants, consisting in enabling EU citizens to be satisfied that there was no conflict of interest between the members of that team and the vaccine manufacturers, could not be achieved in the absence of disclosure of the identity of those persons, since the mere fact that all the members of the negotiation team signed a declaration of absence of conflict of interests does not in itself permit a citizen to satisfy himself or herself that those members have performed their task in complete independence.

21In paragraph 85 of the judgment under appeal, the General Court concluded that the Commission had failed to take the various circumstances of the present case sufficiently into account in order to weigh up correctly the interests involved.

22Accordingly, as is clear from point 2 of the operative part of the judgment under appeal, the General Court annulled the decision at issue and the French-language version thereof, in so far as, inter alia, the Commission had refused to grant the applicants wider access to the declarations of absence of conflict of interests, on the basis of Article 4(1)(b) of Regulation No 1049/2001.

Forms of order sought

23The Commission asks the Court of Justice to:

– order the suspension of operation of point 2 of the operative part of the judgment under appeal, in so far as it annuls the decision at issue, and the French-language version thereof, as regards the refusal by the Commission to grant wider access to the declarations of absence of conflict of interests, until delivery of the final judgment closing the appeal proceedings against that judgment, and

– order the applicants to pay the costs.

24The applicants contend that the Court should:

– dismiss the application for interim measures;

– in the alternative, reject that application in so far as it concerns solely the request for access made by Mr Courtois;

– dismiss all other claims of the Commission, and

– order the Commission to pay the costs or, in the alternative, reserve the costs.

The application for interim measures

25It should be recalled that, although, under Article 60 of the Statute of the Court of Justice of the European Union, an appeal against a judgment of the General Court does not, in principle, have suspensory effect, the Court of Justice may, pursuant to Article 278 TFEU, if it considers that the circumstances so require, order the suspension of the effects of a judgment under appeal (order of the Vice-President of the Court of 19 August 2024, Puigdemont i Casamajó and Comín i Oliveres v Parliament, C‑600/22 P-R, EU:C:2024:673, paragraph 52 and the case-law cited).

26In accordance with Article 160(3) of the Rules of Procedure of the Court of Justice, applications for suspension of the operation of a measure adopted by an EU institution pursuant to Article 278 TFEU must 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.

Accordingly, the court hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prime facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable damage to the interests of the party making the application, it must be made and produce its effects before judgment is given on the substance. The court hearing the application for interim relief must, where appropriate, also weigh up the interests involved. Those conditions are cumulative, and consequently applications for interim measures must be dismissed if any one of those conditions is not satisfied (see, to that effect, order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission, C‑90/24 P(R), EU:C:2024:318, paragraph 56 and the case-law cited).

The prima facie case

Arguments

Arguments of the Commission

28The Commission maintains that the condition relating to a prima facie case is satisfied.

29The Commission considers that, in the judgment under appeal, the General Court incorrectly interpreted and applied the conditions laid down in Article 9(1)(b) of Regulation No 2018/1725.

30As regards the condition laid down in that provision which requires the party seeking access to documents to demonstrate the need to transmit personal data for a specific purpose in the public interest, it submits that, first of all, the General Court distorted the initial request for access as well as the confirmatory request for access by finding, in paragraph 68 of the judgment under appeal, that the applicants were pursuing the objective of ascertaining the impartiality of the members of the negotiation team.

31It submits, next, that the General Court, in any event, wrongly considered that that objective was a specific purpose in the public interest, within the meaning of Article 9(1)(b) of Regulation 2018/1725.

32It argues, lastly, that the General Court wrongly held, in paragraph 73 of the judgment under appeal, that the applicants had established the need for the transmission of the personal data in question, namely the surnames, forenames and professional or institutional roles of the members of the negotiation team, in order to attain the objective pursued.

33In that regards, the Commission observes that it results from the Court’s case-law, in particular the judgment of 21 March 2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251), that the person requesting access to personal data must demonstrate that the transmission of those data is the most appropriate of the possible measures for attaining the objective pursued, which the General Court moreover recalled in paragraph 60 of the judgment under appeal.

34However, in paragraph 84 of the judgment under appeal, the General Court found merely that the disclosure to the applicants of the surnames and forenames of the members of the negotiation team was necessary to attain the objective pursued without stating whether that was the only conceivable means of doing so.

35The Commission adds that, in any event, the transmission to the applicants, in an anonymised form, of the declarations of absence of conflict of interests already permitted the objective to be attained, even if the identity of the signatories of those documents was redacted. As a result of that transmission, the applicants were in a position to ascertain whether the members of the negotiation team, who are public servants, had complied with the requirements of transparency applicable in all public procurement procedures in the European Union. To maintain the contrary would be to call into question the very validity of those declarations.

36As regards the condition, also laid down in Article 9(1)(b) of Regulation 2018/1725, that the institution concerned must determine that there is no reason to assume that the transmission might prejudice the legitimate interests of the data subject and, in such a case, demonstrably weigh up the various competing interests in order to evaluate whether it is proportionate to transmit the personal data sought, the Commission submits that the General Court committed an error of law in holding, in paragraph 85 of the judgment under appeal, that it had not properly carried out that balancing exercise.

37It submits that that analysis requires, as the Court of Justice held in relation to limitations that may be made on the rights derived from Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’) to weigh up, on the one hand, the seriousness of the interference that the disclosure of personal data involves and, on the other hand, the importance of the specific purpose in the public interest pursued. It refers, in particular, to the judgment of 22 November 2022, Luxembourg Business Registers (C‑37/20 and C‑601/20, EU:C:2022:912).

38According to the Commission, the disclosure of the identity of the members of the negotiation team would be a particularly serious interference in their privacy, by exposing them inter alia to unsolicited external contacts as a result of the sensitive nature of the subject of the manufacture of COVID-19 vaccines, which the General Court had, moreover, recognised in paragraph 77 of the judgment under appeal. Those persons would also run the risk of being systematically held responsible, in the future, by a large section of public opinion, for the occurrence of any problems relating to the vaccines against COVID-19. Furthermore, that interference would quickly materialise by the broadcast of the identity of those persons on the internet.

39The Commission adds that that situation would seriously undermine its capacity and that of the Member States to have recourse, in the future, to their staff for the negotiation and conclusion of such contracts.

40By contrast, since the members of that team do not occupy a high hierarchical position within the institution and have had only a purely technical role in the negotiation procedure, the objective pursued of ascertaining their impartiality is of less importance than if it concerned persons who had real decision-making power in that procedure.

41Moreover, that objective cannot justify as serious an interference in the private life of those persons as that which would result from the disclosure of their identity.

42Lastly, that objective has already been largely achieved by the disclosure of anonymised declarations of absence of conflict of interest.

43The Commission adds, referring to the principles identified by the Court in the judgment of 22 November 2022, Luxembourg Business Registers (C‑37/20 and C‑601/20, EU:C:2022:912, paragraphs 65 and 83), that the General Court should have taken into account the fact that the review of the absence of a conflict of interest of officials in the performance of their duties is a matter solely, in the Member States, for the competent authorities subject to specific obligations in that regard. In addition, in order to satisfy the requirement of proportionality, it is necessary for data subjects to have sufficient safeguards to protect their personal data effectively against the risk of abuse, the need for such safeguards being all the more important where personal data are made accessible to the general public and to a potentially unlimited number of persons.

44Consequently, disclosure of the identity of the members of the negotiation team would constitute a disproportionate interference with the protection of their privacy.

45Therefore, the General Court was wrong to hold, in paragraph 85 of the judgment under appeal, that the Commission had not correctly weighed up the interests involved.

Arguments submitted by the applicants

46The applicants submit that the condition relating to a prima facie case is not satisfied since the Commission does not rely on any ground of appeal that appears not unfounded to challenge the judgment under appeal.

47As regards the distortion of evidence alleged by the Commission, they submit, referring to the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98, paragraph 127), that a distortion of the evidence arises where the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence and that it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court. In their view, the Commission has in no way demonstrated that those conditions were met and in reality seeks to call into question the assessment of the facts made by the General Court.

48As regards the errors of law allegedly committed by the General Court in its interpretation of Article 9(1)(b) of Regulation 2018/1725, they submit, first of all, that the General Court was fully entitled to conclude that the objective pursued of ascertaining the impartiality of the members of the negotiation team constitutes a specific purpose in the public interest, within the meaning of that provision.

49In that regard, they contend that the Commission cannot simultaneously, on the one hand, submit that the purpose in question is not of ‘public interest’ and, on the other hand, recognise that ascertaining the impartiality of the members is ‘in the public interest’. Similarly, its line of argument is contradictory when it relies both on the need not to disclose the names of those persons and on the fact that they only had a purely technical role in the negotiation. In any event, the function of a negotiator is, by its very nature, to influence the content of the final decision.

50They submit, next, that, contrary to the Commission’s allegations, disclosure of the identity of the members of the negotiation team who signed the declarations of absence of conflict of interest is necessary in order to make it possible to ascertain their impartiality and they add that the names of numerous persons acting in a private or public capacity on ‘the same file’ are, moreover, already publicly available.

51Lastly, they submit that the General Court clearly did not err in law when it held, in paragraph 85 of the judgment under appeal, that the Commission had not correctly weighed up the interests involved, as required by Article 9(1)(b) of Regulation 2018/1725.

52In that regard, they dispute the Commission’s analysis that the harm caused by the disclosure of the identity of the persons concerned would be serious. The mere possibility that the members of the negotiation team may be exposed to unsolicited external contacts does not entail a risk of their physical and psychological integrity being undermined, as alleged by the Commission. They argue that, in a democratic society, any person, including in a professional capacity, may be contacted without having sought that contact.

53They consider that the objective pursued of verifying the impartiality of those persons is important because negotiators influence the decision-making process. They emphasise, once again, the limited nature of their request, in so far as it relates only to the identity and professional role of the persons concerned, and also the fact that, as the General Court found in paragraph 84 of the judgment under appeal, the transmission of a declaration of absence of conflict of interests in which the identity of the signatory has been redacted does not make it possible to ascertain that person’s impartiality.

Findings of the Court

54According to the settled case-law of the Court, the condition relating to the establishment of a prima facie case is satisfied where at least one of the pleas in law relied on by the applicant for interim measures in support of the main action appears, prima facie, not unfounded. That is the case, inter alia, where one of those pleas reveals the existence of difficult legal issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings, or where the discussion of issues by the parties reveals that there is a major legal disagreement whose resolution is not immediately obvious (order of the Vice-President of the Court of 20 December 2019, Puigdemont i Casamajó and Comín i Oliveres v Parliament, C‑646/19 P(R), EU:C:2019:1149, paragraph 52, and order of 8 April 2020, Commission v Poland, C‑791/19 R, EU:C:2020:277, paragraph 52).

55The second ground relied on by the Commission in support of its appeal alleges that errors of law by the General Court in the interpretation and application of Article 9(1)(b) of Regulation 2018/1725 led it to the erroneous conclusion that the Commission could not base its refusal to grant wider access to the declarations of absence of conflict of interest on the basis of Article 4(1)(b) of Regulation No 1049/2001.

56As a preliminary point, it should be recalled that, according to settled case-law, Regulation No 1049/2001 is designed, as stated in recital 4 and Article 1 thereof, to confer on the public as wide a right of access as possible to the documents of the institutions (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 111; of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 53; and of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40).

57The principle that the widest possible public access is to be granted to documents is nonetheless subject to certain limits based on reasons of public or private interest. Regulation No 1049/2001 provides, in particular in recital 11 and Article 4 thereof, for a system of exceptions requiring institutions and bodies not to disclose documents in the event that such disclosure would undermine one of those interests (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 111; of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 53; and of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40).

58In that regard, it must be recalled that Article 4(1)(b) of Regulation No 1049/2001, states that the EU institutions are to refuse access to a document where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data.

Thus, where an application is made seeking access to personal data, within the meaning of Article 3(1) of Regulation 2018/1725, the provisions of that regulation become applicable in their entirety (see, by analogy, judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA, C‑615/13 P, EU:C:2015:489, paragraph 44 and the case-law cited).

60In the present case, it is common ground that the information requested, namely the surnames and forenames of the members of the negotiation team, which would make it possible to identify the persons who participated in the negotiation of the contracts for the advance purchase of COVID-19 vaccines, constitutes personal data, within the meaning of Article 3(1) of Regulation 2018/1725, which covers any information relating to an identified or identifiable natural person.

61Consequently, such personal data may be transmitted to a third party on the basis of Regulation No 1049/2001 only where that transmission fulfils the conditions laid down in Article 9(1)(a) or (b) of Regulation 2018/1725 and constitutes lawful processing in accordance with the requirements of Article 5 of that regulation (see, by analogy, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 104).

62In its appeal, the Commission submits, inter alia, that the General Court, in the judgment under appeal, erred in the interpretation and application of the condition laid down in Article 9(1)(b) of Regulation 2018/1725, according to which, once the recipient of the personal data has established that it is necessary for the personal data to be transmitted to him or her for a specific purpose in the public interest, and that there are grounds for believing that the data subject’s legitimate interests might be prejudiced, the controller of those data must determine whether it is proportionate to transmit those data for that specific purpose, after demonstrably weighing up the various competing interests. According to the Commission, the General Court erred in finding, in paragraph 85 of that judgment, that it had not taken sufficient account of the various circumstances of the case in order to strike a proper balance between the interests involved.

63In that regard, it appears that the interests involved in the present case are, on the one hand, the interest of the members of the negotiation team in not disclosing their identity in order to protect their privacy and, on the other hand, as is apparent from paragraphs 66, 70, 71 and 84 of the judgment under appeal, the interest of the applicants in the process of negotiating the advance purchase agreements for COVID-19 vaccines, which was conducted by the Commission on behalf of the Member States, being transparent in order to enable EU citizens to ascertain the impartiality of the members of that team and to satisfy themselves in particular that there is no conflict of interests between those persons and vaccine manufacturers.

64As regards the respective importance of those different interests, it must be borne in mind, as regards the interest of the members of the negotiation team in not disclosing their identity, that, according to settled case-law, making personal data available to third parties constitutes an interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, whatever the subsequent use of the information communicated (judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/2, EU:C:2022:912, paragraph 39 and the case-law cited).

65The assessment of the seriousness of that interference entails account being taken of the nature of the personal data concerned, in particular whether those data may be sensitive, as well as of the nature and specific arrangements for the processing of the data, in particular the number of persons who have access to those data and the arrangements for access to them. Where appropriate, account must also be taken of the existence of measures intended to prevent those data being the subject of unlawful processing (judgment of 21 March 2024, Landeshauptstadt Wiesbaden, C‑61/22, EU:C:2024:251, paragraph 106).

66In the present case, the personal data whose disclosure is requested relates to the identity and to the professional activity of officials of the Commission and of Member States which participated in the negotiation of the contracts for the advance purchase of COVID-19 vaccines conducted by the Commission on behalf of the Member States.

67In addition, it is common ground, as the General Court moreover noted in paragraph 77 of the judgment under appeal, that the request for access to that information was made in a context characterised by distrust of some EU citizens in the vaccination strategy promoted by the Commission. In paragraph 77, the General Court added that, in those circumstances, the exposure of the members of the negotiation team to unsolicited external contacts following disclosure of their identities was not merely hypothetical. In paragraph 78 of that judgment, the General Court stated that that conclusion was not called into question by the fact that the applicants did not wish to obtain the addresses of the members of that team or information falling within the scope of Article 10 of Regulation 2018/1725, relating to special categories of personal data, since disclosure of a person’s identity makes it possible to carry out searches in connection with that person and thus to find such information.

68The sensitivity of the subject of the COVID-19 vaccine strategy appears, moreover, to be borne out by the very large number of individuals who are involved in the present court proceedings, and those persons who are also part of the group of 86 000 petitioners on whose behalf the initial application had been submitted to the Commission.

69Those factors make it possible to infer, therefore, with a sufficient degree of probability, that the identity of the members of the negotiation team who signed the declarations of absence of conflict of interest, once disclosed, risks being disseminated rapidly on the internet and, in particular, on social media.

70In such a case, those data are accessible to a potentially unlimited number of persons, with the result that persons who would seek to obtain that information for reasons unrelated to those which justified their disclosure would be capable of freely accessing it (see, to that effect, judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/2, EU:C:2022:912, paragraph 42 and the case-law cited).

71Furthermore, the potential consequences for the data subjects resulting from possible abuse of their personal data are exacerbated by the fact that, once those data have been made available to the general public, they could not only be freely consulted, but also retained and disseminated and that, in the event of such successive processing, it becomes increasingly difficult, or even illusory, for those data subjects to defend themselves effectively against abuse (see, to that effect judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 43).

72Such a risk is all the more likely since, in the present case, the data at issue relate only to a very limited number of natural persons.

73Consequently, it therefore cannot be excluded, prima facie, that disclosure of the identity of those persons may be regarded by the Court of Justice, in the context of the appeal brought before it, as being a serious interference with the rights enshrined in Articles 7 and 8 of the Charter.

74As regards the importance of the objective, pursued by the applicants, of guaranteeing the transparency of the negotiation process conducted by the Commission in order to enable EU citizens to ascertain the impartiality of the members of the negotiation team with regard to vaccine manufacturers, it should be recalled that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system (see, to that effect, judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:23, paragraph 53 and the case-law cited).

75Accordingly, and as the General Court stated in paragraph 71 of the judgment under appeal, the transparency of the process followed by the Commission in the negotiations with COVID-19 vaccine manufacturers and in the conclusion of advance purchase agreements for vaccines is likely to contribute to increasing the confidence of EU citizens in the vaccine strategy promoted by the Commission and, thereby, counter the dissemination of false information as regards the circumstances in which those agreements were negotiated and concluded.

76The fact remains, however, as the Commission has submitted, that the verification of compliance with the ethical requirements of the officials of the Commission and of the Member States who form part of the negotiation team is primarily a matter for the competent public authorities (see, by analogy, judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 83).

77In addition and above all, it follows from the case-law of the Court of Justice that, in the balancing exercise which an institution must carry out before disclosing information concerning a natural person between the interest of the European Union in ensuring the transparency of its actions and the interference with the rights enshrined in Articles 7 and 8 of the Charter, no automatic priority can be conferred on the objective of transparency over the right to protection of personal data (see, to that effect, judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 85 and the case-law cited).

78In the light of the foregoing, it cannot, prima facie, be ruled out that the Court may consider, when it analyses the appeal brought before it, that, when weighing up the competing interests involved, which is required pursuant to Article 9(1)(b) of Regulation 2018/1725, the interest of the members of the negotiation team in their identity not being disclosed prevails over the objective pursued by the applicants of rendering it possible to ascertain the impartiality of those team members.

79Consequently, without there being any need to rule, in the context of the present proceedings, on the merits of the Commission’s second plea relating to the incorrect application by the General Court of Article 9(1)(b) of Regulation 2018/1725, which falls within the exclusive jurisdiction of the court adjudicating on the substance of the case, it must be held that that plea appears, prima facie, not to be unfounded.

80In the light of the foregoing considerations, it must be concluded that the requirement that a prima facie case be established has been satisfied in this case.

Urgency

Arguments

81The Commission submits that the condition relating to urgency is satisfied in view of the serious and irreparable harm that the members of the negotiation team would suffer if their identity were disclosed before the Court of Justice rules on the substance of the case.

82It recalls, referring to paragraph 81 of the order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission (C‑90/24 P(R), EU:C:2024:318), that the interference with fundamental rights enshrined in Articles 7 and 8 of the Charter must be assessed in the light of all the circumstances in question, with a view to determining whether the scale and nature of the damage entailed by that interference justifies that damage being regarded as serious and irreparable.

83The Commission submits that, in the present case, if its application for suspension of the operation of the judgment under appeal is not granted, it would be required, for the purposes of giving effect to that judgment, to disclose the identity of the members of the negotiation team who signed the declarations of absence of conflict of interest.

84As regards the reality of the harm that would result for those persons, it maintains that they would very probably be faced with unsolicited external contacts, including, as the case may be, attacks against their physical integrity and acts of harassment. Given the extreme sensitivity of the subject of COVID-19 vaccines and the strong opposition to which those vaccines may have given rise for many people, disclosure of the identity of the members of the negotiation team would risk ‘exposing them to genuine threats of aggression’ in response to any decision taken on the matter by the European or national authorities, but also in the event of possible side effects of COVID-19 vaccines.

85The Commission adds that such harm is likely to have direct consequences for it since, as the body responsible for managing the procedure for negotiating and concluding advance purchase agreements for COVID-19 vaccines, it has a duty to prevent the members of the negotiation team from suffering harm as a result of performing their duties.

86Furthermore, according to the Commission, such harm should be regarded as serious not only because it concerns possible harm to the physical integrity and mental health of the persons concerned, but also, in the light of the principles resulting from the judgment of 22 November 2022, Luxembourg Business Registers (C‑37/20 and C‑601/20, EU:C:2022:912), because making personal data available to the general public makes it possible for those data to be accessed by a potentially unlimited number of persons, including for reasons that may be unrelated to the objective pursued by their publication.

87Furthermore, the Commission submits, making reference to the order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission (C‑90/24 P(R), EU:C:2024:318), that that harm is irreparable.

88Lastly, that harm is likely to arise all the more rapidly because the information disclosed may be disseminated quickly on the internet and circulated on social media.

89The applicants contend that, on the contrary, the condition relating to urgency is not satisfied.

90They refer to the resolution of the European Parliament of 12 July 2023, entitled ‘COVID-19 pandemic: lessons learned and recommendations for the future’, which recommends that declarations of absence of conflict of interest of negotiators of contracts for the purchase of COVID-19 vaccines be made public.

91They point out that the Commission chose to be represented, at the hearing in the case which gave rise to the judgment under appeal, by several agents whose identity could thus be known.

92In the alternative, they contend that the application for interim measures should be dismissed only as regards the request for access made by Mr Courtois, who undertakes to ensure the confidentiality of the information sent to him by the Commission.

Findings of the Court

93The Commission submits that the condition relating to urgency is satisfied in view of the serious and irreparable harm that the members of the negotiation team would suffer if their identity were disclosed before the Court of Justice rules on the substance of the case.

According to the settled case-law of the Court, the purpose of interlocutory proceedings is to guarantee the full effectiveness of the final future decision, in order to ensure that there is no lacuna in the legal protection afforded by the Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim protection. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that nature. In order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty. It is sufficient that it be foreseeable with a sufficient degree of probability (order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 60 and the case-law cited).

In addition, the court hearing an application for interim relief must postulate – solely for the purposes of assessing urgency, without this involving it taking any position as regards the merits of the complaints put forward in the main action by the applicant for interim relief – that those complaints might be upheld. The serious and irreparable damage whose likely occurrence must be established is that which would result, where relevant, from a refusal to grant the interim measures sought in the event that the action in the main proceedings was subsequently successful (order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 61 and the case-law cited).

In the present case, it should be noted, as a preliminary point, that the damage upon which the Commission relies in connection with the right to respect for private life would be the direct result of the action which, in its view, it is compelled to adopt in respect of the members of the negotiation team in order to comply with the judgment under appeal (see, by analogy, order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission, C‑90/24 P(R), EU:C:2024:318, paragraph 74).

It follows that, by its application for interim measures, the Commission seeks to act not in place of third parties who are independently concerned by the effects of the decision at issue, but rather personally, in order to protect its own interests by avoiding being compelled itself to cause serious and irreparable damage to those persons, for which it might moreover be held liable, in a context in which that damage were to be caused to those persons on account of their ties the Commission, without those persons being in a position themselves to obtain interim relief to prevent the damage from occurring (see, by analogy, order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission, C‑90/24 P(R), EU:C:2024:318, paragraph 75).

In those circumstances, such damage may be relied on by the Commission in order to demonstrate that the condition relating to urgency is satisfied (see, to that effect, order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission, C‑90/24 P(R), EU:C:2024:318, paragraph 76).

As to whether immediate compliance with the judgment under appeal is likely to cause serious and irreparable damage, within the meaning of the case-law referred to in paragraphs 93 and 94 of the present order, it should first of all be recalled that, under Article 266 TFEU, the Commission is required to take the measures necessary to comply with the judgment under appeal. In the present case, it appears that that institution is under an obligation, as it states, to disclose to the applicants the identity of the persons who signed the declarations of absence of conflict of interest, who are the members of the negotiation team.

As regards, next, the damage that may result from such a disclosure, it follows from the case-law of the Court that the infringement of certain fundamental rights, such as the right to respect for private life enshrined in Article 7 of the Charter, must be assessed in the light of all the circumstances in question, with a view to determining whether the scale and nature of the damage entailed by that infringement justifies that damage being regarded as serious and irreparable (see, to that effect, order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission, C‑90/24 P(R), EU:C:2024:318, paragraph 81 and the case-law cited).

In that regard, as has been stated in paragraph 73 of the present order, disclosure of the identity of the members of the negotiation team who signed the declarations of absence of conflict of interest is likely, with a sufficient degree of probability for the purposes of the application for interim measures, to cause a serious interference with the rights of those persons enshrined in Articles 7 and 8 of the Charter.

It should be added that, in the absence of specific and precise guarantees, it cannot be considered that such damage could, with certainty, be avoided by the transmission of those data to a single person, as has been requested, in the alternative, by the applicants in their statement in response.

Furthermore, the non-material damage resulting from such a breach of the right to privacy cannot be fully erased by financial compensation or be removed a posteriori if the judgment under appeal is set aside, with the result that it must be regarded as irreparable (see, to that effect, order of the Vice-President of the Court of 11 April 2024, Vivendi v Commission, C‑90/24 P(R), EU:C:2024:318, paragraph 91).

Lastly, such damage is, a priori, irreversible, since the data at issue, once disclosed, would be likely to be disseminated quickly on the internet, given the sensitivity of the issues relating to COVID-19 vaccines, with the result that it would be practically impossible to have the data removed subsequently in the event that the judgment under appeal were set aside.

In any event, if the present application for interim measures were not granted, the appeal brought before the Court of Justice would lose its fundamental interest as regards the question whether the General Court was wrong to annul, by the judgment under appeal, the Commission’s refusal to disclose the identity of the members of the negotiation team. Even if the Court of Justice were to find that to be the case, those data would nevertheless already have been irreversibly disclosed.

It follows that the condition relating to urgency is satisfied in the present case.

The balance of interests

Arguments

The Commission submits that the balance of interests weighs in favour of temporarily maintaining the effects of the decision at issue as regards its refusal to disclose the identity of the members of the negotiation team who signed declarations of absence of conflict of interest.

It submits that the validity of those declarations has not been called into question by the applicants and that the transmission of one of those declarations in anonymised form already makes it possible to ascertain the impartiality of their signatories.

It adds that the impartiality of the signatories of those declarations was confirmed by the European Court of Auditors in its Special report 19/2022, entitled ‘EU COVID-19 vaccine procurement’. Lastly, the European Parliament’s Special Committee on the COVID-19 pandemic reached the same conclusions.

The applicants submit, on the contrary, that the balance of interests weighs in favour of the judgment under appeal being complied with immediately as regards the annulment of the Commission’s refusal to disclose the identity of the members of the negotiation team who signed the declarations of absence of conflict of interest.

They consider that the anonymised declaration sent to them is merely a model document and does not make it possible to ascertain the impartiality of its signatory.

They add that the Commission has not produced the Court of Auditors’ report on which it relies, or even extracts from that document. In addition, they claim that, in its resolution of 12 July 2023 on the ‘COVID-19 pandemic: lessons learned and recommendations for the future’ (2022/2076(INI)), the Parliament ‘regrets the lack of transparency’ in the early purchase agreements for COVID-19 vaccines and stresses the need to allow verification of the impartiality of the negotiators of those contracts.

Findings of the Court

Given that, in most interim proceedings, the decision to grant or to refuse the suspension of operation sought is likely to produce, to a certain extent, certain definitive effects and it is for the court hearing the application for interim relief to weigh up the risks attaching to each of the possible solutions. In practical terms, that involves, in particular, examining whether or not the interest of the applicant for interim measures in obtaining suspension of the operation of the contested act outweighs the interest in that act’s immediate implementation. In that examination, it must be determined whether the possible annulment of that act by the judgment on the substance would make it possible to reverse the situation that would have been brought about by its immediate implementation and, conversely, whether suspension of its operation would be such as to impede the objectives pursued by the contested act in the event of the main action being dismissed (order of the Vice-President of the Court of 6 September 2024, Aylo Freesites v Commission, C‑511/24 P(R), EU:C:2024:719, paragraph 18).

In the present case, as has been noted in paragraph 103 of the present order, refusal to grant the suspension the operation of the judgment under appeal requested by the Commission would not make it possible to reverse the situation for persons whose identity would therefore be disclosed by the Commission, if, in the proceedings on the substance, that judgment were set aside by the Court. Once transmitted, there is no guarantee that those data will not be disseminated on the internet. In those circumstances, the resulting interference in the private life of the persons concerned is irreversible.

Furthermore, it has neither been established nor even alleged that the grant of suspension of operation of the judgment under appeal sought by the Commission would prevent that judgment from being given full effect in the event of the appeal brought against it being dismissed by the Court.

Accordingly, in the present case, the balance of the interests involved weighs in favour of suspension of operation of the judgment under appeal requested by the Commission.

In the light of all of the foregoing considerations, it is appropriate to grant the Commission’s request for suspension of operation of point 2 of the operative part of the judgment under appeal, as regards the annulment of the refusal to grant wider access to the declarations of absence of conflict of interest, pending delivery of the judgment closing the appeal proceedings in Case C‑632/24 P.

Costs

In accordance with Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

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

The operation of point 2 of the operative part of the judgment of the General Court of the European Union of 17 July 2024, Courtois and Others v Commission (T‑761/21, EU:T:2024:477), in so far as it annuls Commission Decision C(2022) 1359 final of 28 February 2022, which was adopted pursuant to Article 4 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, and which granted Mr Fabien Courtois and the other natural persons whose names are set out in the annex partial access to certain documents relating to the purchase of vaccines by that institution in the context of the COVID-19 pandemic, and the French-language version of that decision which was communicated to them on 31 March 2022, is suspended in so far as the European Commission refused wider access to the declarations of absence of conflict of interests by the members of the team who negotiated the purchase of COVID-19 vaccines, on the basis of Article 4(1)(b) of that regulation, until delivery of the judgment closing the proceedings on the appeal in Case 632/24 P.

The costs are reserved.

[Signatures]

*

Language of the case: French.

The list of the other applicants is annexed only to the version notified to the parties.