26 July 2024 (*1)

(Appeal – Order for interim measures – Access to documents – Export notifications for hazardous, banned or severely restricted chemicals – Information held by the European Chemicals Agency (ECHA) – Urgency)

In Case C‑397/24 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 6 June 2024,

AQ, represented by C. Mereu, avocat, and I. Zonca, advocaat,

appellant,

the other party to the proceedings being:

European Chemicals Agency (ECHA), represented by B. Broms and C. Buchanan, acting as Agents, and by G. Gilmore, Barrister-at-Law,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

1By its appeal, AQ seeks to have set aside the order of the President of the General Court of the European Union of 27 March 2024, AQ v ECHA (T‑1101/23 R, ‘the order under appeal’, EU:T:2024:205), by which the President of the General Court dismissed its application for suspension of the operation of the decision of the European Chemicals Agency (ECHA) of 14 September 2023 granting full access to a document requested in a procedure under 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, ‘the decision at issue’).

2The background to the dispute is set out in paragraphs 2 to 8 of the order under appeal. For the purposes of the present proceedings, that background may be summarised as follows.

3AQ is a company specialising in the manufacture of active substances for plant protection products.

4An application for access to documents under Regulation No 1049/2001, concerning a document containing information from eight export notifications for chemicals, was submitted to ECHA by a news outlet.

5By letter of 10 August 2023, ECHA invited AQ to inform it of the elements in respect of which it opposed disclosure.

6On 29 August 2023, AQ informed ECHA that it opposed the disclosure of its name and address (‘the information at issue’), on the ground that such disclosure would undermine its commercial interests, since disclosure of its status as an exporter of the substances at issue would risk giving rise to a public outcry.

7On 14 September 2023, by the decision at issue, ECHA rejected AQ’s request not to disclose the information at issue, stating that the names of the active substances were public information since they were displayed on AQ’s website.

8On 28 September 2023, AQ clarified its reasons for opposing the disclosure of the information at issue. On 3 November 2023, ECHA rebutted AQ’s arguments and informed it that it would suspend the operation of its decision to disclose that information while the proceedings before the General Court were pending.

Background to the dispute

9By application lodged at the Registry of the General Court on 24 November 2023, AQ brought an action for annulment of the decision at issue.

10By separate document lodged at the Registry of the General Court on 15 February 2024, AQ brought an application for interim measures seeking suspension of the operation of the decision at issue.

11By the order under appeal, the President of the General Court dismissed that application, on the ground that the condition relating to urgency was not satisfied.

12First, in paragraphs 31 to 37 of that order, he rejected AQ’s arguments alleging a risk of its suffering harm consisting in damage to its reputation.

13Second, in paragraphs 38 to 45 of that order, he held that AQ had not established to the requisite legal standard the existence of a risk of serious and irreparable damage of a pecuniary nature.

Forms of order sought

14AQ claims that the Court of Justice should:

–set aside the order under appeal;

–suspend the operation of the decision at issue or, in the alternative, refer the case back to the General Court; and

–order ECHA to pay the costs.

15ECHA claims that the Court of Justice should:

–dismiss the appeal; and

–order AQ to pay the costs.

The appeal

16In support of its appeal, AQ raises four grounds, alleging, first, contradictory reasoning and a distortion of the evidence; second, distortion of the application for interim measures; third, a failure to provide an adequate statement of reasons; and, fourth, contradictory reasoning.

The first ground of appeal

Arguments

17By its first ground of appeal, AQ asserts, first, that the statement of reasons of the order under appeal is vitiated by a contradiction, inasmuch as the President of the General Court, in paragraph 33 of that order, relied on the fact that it was not certain that the information at issue would be used to write a derogatory and untrue article, whereas he stated in paragraph 32 of that order that the applicant was required only to show that the occurrence of the harm claimed was foreseeable with a sufficient degree of probability.

18Second, in the light of the evidence produced, the President of the General Court should have found that it was foreseeable with a sufficient degree of probability that the information in question would be used in that way. In particular, the news outlet concerned had already published a derogatory article, on 10 September 2020, using information obtained from ECHR.

ECHA submits that the first ground of appeal should be rejected.

Assessment

19 As the President of the General Court noted, in essence, in paragraphs 18 and 32 of the order under appeal, it is clear from the settled case-law of the Court of Justice that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the Court of Justice. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking the interim relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage. While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 75 and the case-law cited).

20 In paragraph 33 of the order under appeal, the President of the General Court found, first, that ‘there [was] no certainty that the information at issue [would] actually be used to publish a derogatory and untrue article’ and, second, that ‘nor [was] it possible to anticipate with any degree of foreseeable probability the consequences of such publication for the applicant’.

21 By its arguments in support of the first ground of appeal, AQ asserts in essence that the President of the General Court made a contradictory finding when he held, by the first reason given in paragraph 33 of the order under appeal, that AQ was required to prove with certainty that the information at issue would be used in order to publish a derogatory and untrue article, in order to establish an actual risk of its suffering harm consisting in damage to its reputation. AQ has nevertheless not disputed the second reason in paragraph 33, which relates to the potential consequences for AQ of such an article being published. That second reason is sufficient, in itself, to justify the finding made in paragraph 36 of the order under appeal that it is unlikely that the information in question could affect the appellant’s reputation.

22 Therefore, even assuming that the first reason given in paragraph 33 of that order is, as AQ submits, at odds with the requirements as regards the standard of proof required in interim measures proceedings – which are set out in paragraph 32 of that order and according to which the party applying for interim relief must demonstrate that a future event is plausible, rather than that it is certain – such contradictory reasoning would have no effect on the finding made in that paragraph 36.

23 The same is true of AQ’s arguments seeking to establish that the publication of a derogatory and untrue article was foreseeable with a sufficient degree of probability, since those arguments are not, in any event, capable of calling into question the finding of the President of the General Court as regards the consequences of such publication.

24 It follows that the first ground of appeal must be rejected as being ineffective.

The second ground of appeal

Arguments

26By its second ground of appeal, AQ submits that the President of the General Court, by taking the view, in paragraph 36 of the order under appeal, that it was unlikely that the information at issue could affect AQ’s reputation, distorted the application for interim measures.

27According to the appellant, that finding is based, as can be seen from paragraphs 34 and 35 of that order, on the nature of that information, whereas AQ was asserting not the specific nature of that information but the fact that the news outlet concerned intended to use it maliciously.

ECHA submits that the second ground of appeal should be rejected.

Assessment

29 In paragraph 34 of the order under appeal, the President of the General Court found that the information at issue merely identifies AQ as a company which planned to export, in 2022, to certain third countries, two active substances which are not approved in the European Union.

30 In paragraph 35 of that order, he took the view that that information cannot be regarded as confidential because the names of the active substances at issue are already public knowledge, since they appear on AQ’s website.

31 The reasons set out in paragraphs 34 and 35 of that order were intended to justify the finding made in paragraph 36 of the order.

32 As can be seen from paragraph 22 of the present order, the second reason set out by the President of the General Court in paragraph 33 of the order under appeal is sufficient, alone, to justify that finding.

33 It follows that, even assuming that the President of the General Court did distort the arguments of AQ which he addressed in paragraphs 34 and 35 of that order, that distortion would not be such as to call into question the finding made in paragraph 36 of that order.

34 Consequently, the second ground of appeal must be rejected as being ineffective.

The third ground of appeal

Arguments

35By its third ground of appeal, AQ submits, first of all, that the finding by the President of the General Court in paragraph 42 of the order under appeal, that ‘it is not plausible that the Italian authorities will revoke the subsidies granted’, is unsupported by any reasoning whatsoever.

36Next, according to the appellant, the President of the General Court failed to address the arguments put forward in the application for interim measures seeking to establish that use of the information at issue by the news outlet concerned could lead the Italian authorities to find that the requirements to which the grant of subsidies is subject in Italian law are no longer satisfied.

37Last, the appellant claims that the President of the General Court completely disregarded AQ’s arguments relating to the weighing up of the interests involved.

ECHA submits that the third ground of appeal should be rejected.

Assessment

39 As the President of the General Court noted, in essence, in paragraphs 18 and 32 of the order under appeal, it is clear from the settled case-law of the Court of Justice that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the Court of Justice. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking the interim relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage. While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 75 and the case-law cited).

It should be noted, first, that, in the context of an appeal, the purpose of review by the Court of Justice is, inter alia, to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, second, that the ground of appeal alleging that the General Court failed to rule on arguments relied on at first instance amounts essentially to relying on a breach of the obligation to state reasons, which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (order of the Vice-President of the Court of 2 February 2024, Zentiva and Zentiva Pharma v Commission, C‑609/23 P(R), EU:C:2024:114, paragraph 28 and the case-law cited).

That obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (order of the Vice-President of the Court of 2 February 2024, Zentiva and Zentiva Pharma v Commission, C‑609/23 P(R), EU:C:2024:114, paragraph 29 and the case-law cited).

In the present case, the President of the General Court recalled, in paragraph 41 of the order under appeal, that AQ had stated that the publication of a new derogatory and untrue article could lead the Italian authorities to revoke the grant of the subsidies. He then found, in paragraph 42 of that order, that it was not plausible that the Italian authorities would revoke the subsidies granted in the event of such an article being published, on the basis of the fact that, when those subsidies were awarded, the Italian authorities were aware of publication of the earlier article and of the export of the active substances at issue by AQ.

That statement of reasons of the order under appeal is such as to enable AQ to ascertain why the President of the General Court did not uphold its argument relating to the risk that the subsidies granted to it would be called into question, and to provide the Court of Justice with sufficient material for it to exercise its power of review regarding whether those reasons are well founded.

In the second place, it follows from the considerations set out in paragraphs 42 and 43 of the present order that the President of the General Court did not fail to address AQ’s arguments intended to establish that use of the information at issue by the news outlet concerned could lead the Italian authorities to find that the requirements to which the grant of subsidies is subject in Italian law are no longer satisfied.

Moreover, although it is true that the President of the General Court did not explicitly adopt a view on whether the requirements laid down by the Italian regulations were in fact met, the fact that he did not do so is not sufficient to establish an infringement of the obligation to state reasons. First, he explained why he found that the risk of the subsidies granted to AQ being called into question was not established, thereby enabling the latter to know why he did not uphold those arguments. Second, compliance with the obligation to state reasons does not, as can be seen from the case-law referred to in paragraph 40 of the present order, require him to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case.

In the third place, as regards any failure by the President of the General Court to assess the weighing up of the interests involved, it should be recalled that Article 156(4) of the Rules of Procedure of the General Court provides that applications for interim measures 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. Thus, according to settled case-law of the Court of Justice, the court hearing an application for interim relief may order the suspension of the operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the interests of the party making the application, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent. The court hearing an application for interim relief must also, where appropriate, weigh up the interests involved (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 175 and the case-law cited).

In the context of its examination of those conditions, the court hearing the application for interim relief enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 28 and the case-law cited).

It can be seen from paragraph 17 of the order under appeal that the President of the General Court decided to examine first of all the condition relating to urgency, and from paragraph 46 of that order that he found that condition not to be satisfied.

The President of the General Court was therefore not bound, before being in a position to dismiss the application for interim measures, to undertake, in addition, a weighing up of the interests involved, and therefore cannot be found to have failed to comply with the obligation to state reasons by not addressing AQ’s arguments in that regard.

Consequently, the third ground of appeal must be rejected as unfounded.

The fourth ground of appeal

Arguments

By its fourth ground of appeal, AQ asserts that there is a contradiction between, on the one hand, paragraph 32 of the order under appeal and, on the other, paragraphs 44 and 45 of that order. According to AQ, whereas it follows from paragraph 32 of that order that the applicant is only expected to show that the occurrence of the harm claimed is foreseeable with a sufficient degree of probability, the President of the General Court found, in paragraphs 44 and 45, that AQ’s arguments, alleging that its sustainability business plan would be jeopardised and that sales of traditional plant protection products would contract, should be rejected as being based on future and uncertain events.

AQ also submits that the foreseeable publication of an article using the information at issue is capable of jeopardising its business plan since the very fact of producing pesticides that are banned in the European Union is unlikely to be regarded as compatible with a sustainability business plan.

ECHA submits that the fourth ground of appeal should be rejected.

Assessment

In paragraph 44 of the order under appeal, the President of the General Court found that AQ’s sustainability business plan concerns only future and uncertain events which therefore cannot support the claim of serious and irreparable financial damage.

In paragraph 45 of that order, he stated, first, that the alleged contraction of sales of traditional plant protection products is hypothetical and, second, that it seems unlikely that a derogatory publication could adversely influence the commercial decisions of AQ’s customers, since they are professional customers who are familiar with the applicable regulatory framework.

In that regard, it should be noted that the reasons thus set out in paragraphs 44 and 45 of that order are intended to address the arguments of AQ that the President of the General Court described, in paragraph 28 of that order, as being based on the claim that the disparaging description of AQ’s business that would appear in a press article would eventually result in a contraction of sales of traditional plant protection products, because customers would not want to purchase the products of an undertaking described as engaging in the ‘deadly business’ of exporting ‘outlaw pesticides’ to third countries, where they cause ‘thousands of poisonings every year’.

In its appeal, AQ has not questioned the description of those arguments contained in paragraph 28.

The second reason set out in paragraph 45 of the order under appeal, and which is not disputed, that it is improbable that a derogatory article could adversely influence the commercial decisions of AQ’s customers, is sufficient, in itself, for AQ’s arguments set out in paragraph 28 of that order to be rejected, since that reason precludes any possibility of the alleged contraction of sales being a likelihood.

The other reasons set out in paragraphs 44 and 45 of that order, which are disputed in the fourth ground of appeal, must therefore be regarded as being included for the sake of completeness only.

Accordingly, that ground of appeal must be rejected as being ineffective.

In the light of the foregoing, the appeal must be dismissed in its entirety.

Costs

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since ECHA has applied for costs and AQ has been unsuccessful, the latter must be ordered to pay the costs.

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

The appeal is dismissed.

AQ shall pay the costs.

Luxembourg, 26 July 2024.

Registrar

*

Language of the case: English.