12 August 2020 (* )

(Interim relief — Plant protection products — Regulation (EC) No 1107/2009 — Publication of the conclusion on the review conducted by EFSA regarding the reconsideration of the approval of the active substance mancozeb — Request for certain passages to be treated as confidential — Refusal to grant confidential treatment — Application for interim measures — No prima facie case)

In Case T‑162/20 R,

Indofil Industries (Netherlands) BV,

established in Amsterdam (Netherlands), represented by C. Mereu and S. Englebert, lawyers,

applicant,

European Food Safety Authority (EFSA

), represented by D. Detken and S. Gabbi, acting as Agents, and by G. Rusconi and O. Cesana, lawyers,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking the suspension of the operation of EFSA Decision EFSA/LA/DEC/22911258/2020 of 28 January 2020 concerning the request for internal review of the decision relating to the applicant’s requests for confidential treatment of the conclusion on the peer review of the risk assessment of the active substance mancozeb,

makes the following

Background to the dispute, procedure and forms of order sought

The applicant, Indofil Industries (Netherlands) BV, is a company incorporated under Netherlands law which belongs to the company Indofil Industries Ltd, specialising in the manufacture and development of plant protection products, including the fungicide mancozeb. Mancozeb is a substance used to combat the growth of alternaria solani and mildew on potatoes, as well as other pathogens affecting, inter alia, vines, berries, tree fruits, carrots and onions. The applicant is one of the subsidiaries through which mancozeb is sold in Europe.

Mancozeb was assessed pursuant to Articles 5 and 6 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), and was initially included in Annex I to that directive. Following the entry into force of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414 (OJ 2009 L 309, p. 1), the active substances included in Annex I to Directive 91/414 are deemed approved under that regulation and are now set out in Part A of the annex to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation No 1107/2009 as regards the list of approved active substances (OJ 2011 L 153, p. 1).

On 28 July 2015 the applicant, together with UPL Europe Ltd (together, ‘the EU Mancozeb Task Force’), submitted an application for the renewal of the approval of mancozeb to the rapporteur Member State, the United Kingdom, and to the co-rapporteur Member State, Greece, pursuant to Article 1 of Commission Implementing Regulation (EU) No 844/2012 of 18 September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation No 1107/2009 (OJ 2012 L 252, p. 26).

The United Kingdom provided an initial draft assessment report regarding the application for renewal in July 2017. In December 2017 the United Kingdom communicated the updated assessment report regarding the application for renewal (the renewal assessment report) (‘the RAR’) to EFSA, the EU Mancozeb Task Force and the Member States. On 15 January 2018 the EU Mancozeb Task Force provided a sanitised version of the RAR on the basis of which a public consultation was held from 26 February to 28 April 2018.

On 29 June 2018 the United Kingdom drew up a summary table identifying a certain number of outstanding issues. On that basis, in July 2018 EFSA requested additional information, which was provided by the EU Mancozeb Task Force on 3 August and 19 October 2018.

On 28 January 2019 the EU Mancozeb Task Force forwarded the United Kingdom additional data for examination during the expert meetings. On 11 February 2019 the EU Mancozeb Task Force asked the United Kingdom to take certain amended pieces of information into account that would enable a safe use of the substance to be established.

On 18 February 2019 the United Kingdom replied to the applicant, stating that the procedure was at the stage following the expert meetings and that, because of the delay in submitting that request for amendment, it was not possible to carry out the additional work required.

By its Implementing Regulation (EU) 2019/336 of 27 February 2019 amending Regulation (EU) No 1141/2010 and Implementing Regulation (EU) No 686/2012 as regards the rapporteur Member State for the evaluation of 1-methylcyclopropene, famoxadone, mancozeb, methiocarb, methoxyfenozide, pirimicarb, pirimiphos-methyl and thiacloprid (OJ 2019 L 60, p. 8), the European Commission designated Greece as the rapporteur Member State for the application for the renewal of the approval of mancozeb from the day following that on which legislation in the field of plant protection products ceases to apply to and in the United Kingdom.

On 12 April 2019 the EU Mancozeb Task Force sent EFSA a letter claiming that the additional data submitted on 19 October 2018 had not been taken into account by the United Kingdom.

On 6 June 2019 the United Kingdom replied to the applicant, stating that, as the rapporteur Member State, it could only take into account the information requested by EFSA for the purpose of updating the RAR. Consequently, information that had not been requested would not be taken into account.

By letter of 7 June 2019, the EU Mancozeb Task Force asked the Commission to make sure that the additional information submitted would be duly taken into account before the publication of EFSA’s conclusion and that, failing an examination of that information by the United Kingdom, it would be Greece that would carry out that assessment.

On 12 June 2019, pursuant to Article 13 of Implementing Regulation No 844/2012, EFSA adopted the conclusion on the peer review of the pesticide risk assessment of the active substance mancozeb. According to EFSA’s conclusion, a safe use of the substance, that would exclude the possibility of harmful or unacceptable effects on human and animal health or on the environment, was not established.

On 17 June 2019 the EU Mancozeb Task Force was requested to identify any confidential information in the conclusion, the peer review report, the list of end points and the final version of the RAR before its publication on EFSA’s website.

On 2 and 15 July 2019 the EU Mancozeb Task Force requested that certain passages be deleted on grounds of confidentiality pursuant to Article 63 of Regulation No 1107/2009.

On 11 October 2019 EFSA forwarded a draft decision, partially accepting the requests for confidential treatment, for comment. The EU Mancozeb Task Force submitted its comments on 18 October 2019.

On 18 November 2019 EFSA adopted Decision EFSA-Q-2015-00585, whereby it partially granted the requests for confidential treatment. EFSA granted, inter alia, the requests for confidential treatment asking for the deletion of names and addresses of persons involved in testing on vertebrate animals, in accordance with Article 63(2)(g) of Regulation No 1107/2009, links between a producer or importer and the applicant or the authorisation holder, in accordance with Article 63(2)(e) of that regulation, and the specification of impurity of the active substance, in accordance with Article 63(2)(b) thereof. The requests for confidential treatment concerning EFSA’s scientific assessments were rejected. In addition, EFSA considered that the information that had already been made public could not be given confidential treatment.

On 20 November 2019 EFSA published a temporary sanitised version of the conclusion and the list of end points on its website.

On 28 November 2019 the EU Mancozeb Task Force lodged a request for internal review of the decision of 18 November 2019.

On 28 January 2020 EFSA published Decision EFSA/LA/DEC/22911258/2020, adopted by its Executive Director, rejecting the request for internal review (‘the contested decision’). Under Article 2(1) of the contested decision, that decision would enter into force from the day following the expiry of the time limit for bringing an action before the General Court. In the meantime, the temporary sanitised version would continue to be published on EFSA’s website.

By application lodged at the Registry of the General Court on 28 March 2020, the applicant, together with UPL Europe, brought an action seeking, primarily, annulment of the contested decision.

By separate document lodged at the Court Registry on 2 April 2020, the applicant submitted an application for interim relief in which it claims, in essence, that the President of the General Court should:

–order the suspension of the operation of the contested decision with immediate effect, in accordance with Article 157(2) of the Rules of Procedure of the General Court, or order the suspension of the operation of the contested decision in accordance with Article 156 of the Rules of Procedure of the General Court pending the judgment of the General Court in the main action;

–order any other interim measure that it deems appropriate and hold any hearing that it deems necessary;

–order EFSA to pay the costs.

By order made on 7 April 2020, the President of the General Court granted the applicant’s application and, pursuant to Article 157(2) of the Rules of Procedure, suspended the effects of the contested decision, before EFSA had submitted its observations.

In its observations regarding the application for interim relief, lodged at the Court Registry on 14 May 2020, EFSA contends that the President of the General Court should:

–declare the application inadmissible or, in the alternative, dismiss the application as unfounded;

–set aside and withdraw the order of the President of the General Court of 7 April 2020;

–order the applicant to pay, in addition to its own costs, the costs incurred by EFSA in the interim proceedings.

On 26 June 2020 the applicant lodged further evidence at the Court Registry. EFSA submitted its observations regarding those documents on 13 July 2020.

Law

General considerations

It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 17 and the case-law cited).

The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim relief must specify ‘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’.

The judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

Having regard to the material in the case file, the judge hearing the application for interim relief considers that he has all the information necessary to rule on the present application for interim relief, without there being any need to hear oral argument from the parties beforehand.

In order to assess whether the cumulative conditions necessary for the grant of interim measures are satisfied in the present case, it is appropriate to begin by examining whether the condition relating to the establishment of a prima facie case is satisfied.

According to settled case-law, the condition relating to the establishment of a prima facie case 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, not unfounded. That is the case, inter alia, where one of the pleas relied on 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 (see order of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 67 and the case-law cited).

As regards disputes concerning interim protection for information alleged to be confidential, it is insufficient, for the purpose of being granted interim measures, to have claimed that the information which is to be disclosed is confidential where such a claim does not satisfy the condition relating to a prima facie case (order of 12 June 2018, Nexans France and Nexans v Commission, C‑65/18 P(R), EU:C:2018:426, paragraph 22).

Consequently, in order to determine whether the condition for establishing a prima facie case is satisfied in the present case, it is necessary to carry out a prima facie examination of the substance of the complaints raised by the applicant in support of the main action and therefore to ascertain whether at least one of them is so weighty that it cannot be discounted in the present interim proceedings (see, to that effect, order of 15 November 2007, Donnici v Parliament, T‑215/07 R, EU:T:2007:344, paragraph 39 and the case-law cited).

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 — may, as a rule, conclude that there is no prima facie case only where the information in question is obviously not confidential (see order of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 60 and the case-law cited).

In the present case, in the context of demonstrating that that condition is satisfied, the applicant relies on six pleas in law.

By its first plea in law, the applicant alleges infringement of Article 12 of Implementing Regulation No 844/2012 on the ground that EFSA adopted its conclusion on the basis of truncated and inaccurate information which is therefore scientifically unsound and inappropriate for publication.

By its second plea in law, the applicant argues that the contested decision was adopted in breach of Article 13 of Implementing Regulation No 844/2012 on the ground that EFSA’s conclusion is based on the misinterpretation and misapplication of certain data.

38By its third plea in law, the applicant argues that the contested decision was adopted in breach of the transparency, confidentiality and communication obligations under Articles 38, 39 and 40 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), on the ground that EFSA failed to take all the available scientific data on the substance into account and failed to fully discharge the assessment procedure.

39By its fourth plea in law, the applicant argues that the contested decision was adopted in breach of Article 63 of Regulation No 1107/2009 on the ground that EFSA’s conclusion calls into question the properties of the substance as well as the products containing it, and undermines its commercial interests.

40By its fifth plea in law, the applicant argues that EFSA acted ultra vires on the ground that it proposed a classification for mancozeb in its conclusion.

41By its sixth plea in law, the applicant argues that the contested decision infringed the principles of legality, legal certainty, legitimate expectations, proportionality and sound administration, and that it breached the duty of diligence and impartiality.

42EFSA contests the applicant’s arguments.

43As a preliminary point, it should be noted that Regulations No 1107/2009 and No 178/2002 make EFSA subject to transparency requirements, pursuant to which, in principle, the public is to be informed of the results of its activities and therefore may have access to its opinions. Thus, Article 38 of Regulation No 178/2002, entitled ‘Transparency’, states that EFSA is to ensure that it carries out its activities with a high level of transparency. It is apparent, inter alia, from Article 38(1)(b), Article 40(2), and the second subparagraph of Article 40(3) of that regulation that EFSA’s opinions are, in principle, to be made public. Article 39(3) of that regulation states that the conclusions of the scientific opinions delivered by EFSA concerning foreseeable health effects may on no account be kept confidential. Regarding, more specifically, the placing of plant protection products on the market, Article 63 of Regulation No 1107/2009, the only provision set out in the chapter of that regulation entitled ‘Public access to information’, states, inter alia, that ‘a person requesting that information submitted under this Regulation is to be treated as confidential shall provide verifiable evidence to show that the disclosure of the information might undermine his commercial interests, or the protection of privacy and the integrity of the individual’. It follows from a reading of that provision a contrario that confidential treatment of such information is the exception, whereas public access to that information is the rule.

44It should also be borne in mind that EFSA’s scientific opinions are merely intermediary steps in the decision-making process relating to approval renewal applications, a process in the course of which scientific assessments are likely to change. The only challengeable acts are the final decisions adopted by the Commission (see, to that effect, judgment of 12 June 2015, Plantavis and NEM v Commission and EFSA, T‑334/12, EU:T:2015:376, paragraphs 61 to 63).

45In addition, the question whether EFSA’s scientific assessments and the Commission’s decisions are well founded or not must be distinguished from the question whether the evidence on which the scientific assessments are based is confidential or not. Thus, a scientific assessment may be incorrect without being confidential. The procedures governing requests for confidential treatment under Article 63 of Regulation No 1107/2009 are therefore not intended to ensure that the scientific analysis is accurate or relevant.

46Consequently, any line of argument seeking to contest the merits of the scientific assessment and the procedure which led to the adoption of EFSA’s scientific conclusion cannot be regarded as relevant in the context of the analysis of the confidential nature of the information which may be eligible for interim protection.

47In the present case, by its first two pleas in law, the applicant argues that the contested decision was adopted in breach of Articles 12 and 13 of Implementing Regulation No 844/2012 on the ground that EFSA adopted a conclusion based, first, on truncated, inaccurate and incomplete information, and, second, on the misinterpretation and misapplication of certain data. In that regard, the applicant claims that EFSA adopted its conclusion without having first received and assessed the complete and final version of the RAR, and without having taken all the available data into account. According to the applicant, the Commission granted Greece, as the new rapporteur Member State, an exceptional period of 3 months to examine the additional data that the applicant had forwarded and to add to the assessment carried out by the United Kingdom.

48Article 12(2) of Implementing Regulation No 844/2012 states that EFSA is to make the draft renewal assessment report available to the public, after giving the applicant 2 weeks to request, pursuant to Article 63 of Regulation No 1107/2009, that certain parts of the draft renewal assessment report are kept confidential. Article 13(2) of Implementing Regulation No 844/2012 states that, after giving the applicant 2 weeks to request, pursuant to Article 63 of Regulation No 1107/2009, that certain parts of the conclusion be kept confidential, EFSA is to make its conclusion available to the public, excluding any information in respect of which confidentiality has been granted by it, unless there is an overriding public interest in its disclosure.

49It is apparent from the foregoing that, if the applicant wishes the information at issue to be treated as confidential, it is required to provide verifiable evidence to show that the disclosure of that information might undermine its commercial interests, or the protection of privacy and the integrity of the individual.

50However, by those arguments, the applicant seeks, in essence, to contest the conclusion reached by EFSA at the end of its scientific assessment and not the assessment set out in the contested decision relating to confidentiality. The applicant does not put forward any argument to demonstrate the confidential nature of the information at issue or the errors made in the course of the procedure that led to the adoption of the contested decision.

51Consequently, in the absence of any arguments demonstrating the confidential nature of the information at issue, the arguments put forward by the applicant in support of the first two pleas in law do not appear to be such as to establish the existence of a prima facie case.

52By its third plea in law, the applicant argues that the contested decision was adopted in breach of Articles 38, 39 and 40 of Regulation No 178/2002. In support of that plea, the applicant alleges that EFSA failed to take all the available scientific data into account and failed to fully discharge the assessment procedure. According to the applicant, the publication of truncated and premature conclusions runs counter to the very objective of the principle of transparency and to the public interest. EFSA incorrectly interpreted the confidentiality criteria set out in Article 63 of Regulation No 1107/2009, which presuppose that the requirements of the provisions relating to approval and renewal have been complied with, and therefore EFSA could not rely on Articles 38 and 40 as grounds for publishing a conclusion that was vitiated by a procedural defect. The applicant asserts that the requirement in Article 39(3) of Regulation No 178/2002 that scientific conclusions relating to foreseeable health effects must on no account be kept confidential does not apply to the findings set out in the contested decision, because the assessment under Article 12 of Implementing Regulation No 844/2012 is still ongoing.

53As has been observed in paragraph 43 above and contrary to the applicant’s assertions, it is in no way for EFSA to provide reasons to justify the publication of its conclusions. On the contrary, it follows from Article 63 of Regulation No 1107/2009 and Articles 38, 39 and 40 of Regulation No 178/2002 that the only information that can be omitted under those provisions is the information provided by the applicant for which verifiable evidence has been submitted to show that the disclosure of that information might undermine its commercial interests, or the protection of privacy and the integrity of the individual. Accordingly, the applicant cannot rely on possible inaccuracies in the scientific assessment in order to prevent the publication of information relating to the concerns identified by EFSA in the course of its assessment of mancozeb.

54Regarding the applicant’s argument that the requirement in Article 39(3) of Regulation No 178/2002 does not apply to the findings set out in the contested decision, because the assessment under Article 12 of Implementing Regulation No 844/2012 is still ongoing, it should be noted that, as has been observed in paragraph 46 above, the line of argument based on the allegation that EFSA’s assessment has not been completed cannot be regarded as relevant in the context of the analysis of the confidential nature of the information which may be eligible for interim protection.

55Regarding the argument that disclosure of a document may be refused if it seriously undermines the decision-making process of the institution and there is no public interest 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), it should be noted that it is completely irrelevant in the context of this analysis. The grounds on which an institution may rely in order to refuse access to documents under that regulation cannot be relied on in support of a request under Article 63 of Regulation No 1107/2009 in order to force the administrative authority not to publish data which it plans to make public.

56In those circumstances, the applicant’s allegation that the information at issue should be regarded as confidential because of the alleged infringement of Articles 38, 39 and 40 of Regulation No 178/2002 cannot be upheld.

57It follows from the foregoing that the third plea in law appears, prima facie, to be unfounded.

58By its fourth plea in law, the applicant argues that the contested decision was adopted in breach of Article 63 of Regulation No 1107/2009 on the ground that EFSA’s conclusion calls into question the properties of the substance as well as the products containing it, and undermines its commercial interests. According to the applicant, EFSA should refrain from publishing the unsanitised conclusion and documents presenting areas of concern which have not yet been fully and correctly assessed. In addition, the information that EFSA has refused to redact on the ground that it has already been made public would perpetuate an error made in the context of a separate and defective earlier procedure.

59As has been noted in paragraph 43 above, pursuant to Article 63(1) of Regulation No 1107/2009 it is for any person requesting that information submitted under that regulation be treated as confidential to show that the disclosure of that information might undermine his commercial interests, or the protection of privacy and the integrity of the individual. The second paragraph of that article lists a certain number of pieces of information the disclosure of which may normally be deemed to undermine the protection of the commercial interests or the protection of the privacy and integrity of the persons concerned.

60The applicant confines itself to alleging that the publication of the statements identified as areas of concern could be detrimental to its reputation, its market share and its turnover, in so far as the substance in question is classified — in its view incorrectly — as harmful to health.

61However, as has been noted in paragraph 45 above, the incorrectness of information does not constitute, as such, a relevant criterion for determining whether the disclosure of that information is likely to undermine commercial interests. That issue is separate from that of the correctness of information. A piece of information may be correct and yet undermine an applicant’s commercial interests on account of its disclosure. Conversely, the disclosure of false information does not necessarily harm those interests (see, to that effect, judgment of 14 December 2018, Arysta LifeScience Netherlands v EFSA, T‑725/15, EU:T:2018:977, paragraph 109).

62Furthermore, in so far as all of EFSA’s conclusions concerning the risk posed by a substance to human and animal health or to the environment are likely to have a negative impact on the commercial interests of companies manufacturing or marketing the substance concerned, the result of the applicant’s reasoning would be that any publication of scientific assessments by EFSA reporting on potentially harmful effects would be systematically postponed. However, as has been noted in paragraph 43 above, it is apparent from the general scheme of Regulations No 178/2002 and No 1107/2009 that the principle governing EFSA’s activities is that of transparency and that confidential treatment is only an exception.

63Regarding the argument concerning the publication of the information that EFSA had refused to redact on the ground that it had already been made public, the applicant confines itself to alleging that publication would perpetuate an error made in the course of a separate and defective earlier procedure. The applicant does not provide any substantiated evidence to demonstrate the confidential nature of that information.

64Consequently, it is not apparent from a prima facie examination of the arguments relating to the alleged infringement of Article 63 of Regulation No 1107/2009 that those arguments are such as to convince the judge hearing the application for interim relief as to the existence of a prima facie case in that regard.

65By its fifth plea in law, the applicant argues that EFSA acted ultra vires on the ground that it proposed a classification for mancozeb.

66It should be noted, in the light of what has been recalled in paragraph 45 above, that that argument, which seeks to contest EFSA’s conclusion, is irrelevant in the context of the analysis of confidentiality.

67It follows from the foregoing that the fifth plea in law appears, prima facie, to be unfounded.

68By its sixth plea in law, the applicant alleges infringement of the principles of legality, legal certainty, legitimate expectations, proportionality and sound administration, and breach of the duty of diligence and impartiality. The applicant argues in that regard that it had a legitimate expectation that the additional information it had offered and the assessment updated by Greece would be taken into consideration in EFSA’s assessment. According to the applicant, the contested decision is contrary to the principle of proportionality on the ground that EFSA failed to take into account the infringement of Articles 12 and 13 of Implementing Regulation No 844/2012 and Article 63 of Regulation No 1107/2009 and fails to ensure that the documents to be published constitute objective and reliable information that is easily accessible to the public.

69It should be noted that, by its line of argument, the applicant seeks to contest the objective, reliable and easily accessible nature of EFSA’s conclusion and not the confidential nature of the information set out therein. As is apparent from paragraph 43 et seq. above, such a line of argument cannot be regarded as relevant in the context of the analysis of the confidential nature of the information which may be eligible for interim protection.

70In any event, it should be borne in mind that the principle of proportionality requires that acts of the EU institutions should be appropriate for attaining the legitimate objectives pursued by the legislation at issue and should not go beyond what is necessary in order to achieve those objectives (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 67; of 7 February 2018, American Express, C‑643/16, EU:C:2018:67, paragraph 84; and of 22 November 2018, Swedish Match, C‑151/17, EU:C:2018:938, paragraph 35).

71It follows from the wording of the provisions of Regulation No 178/2002 that, in principle, EFSA is to publish the information on which it bases its opinions and that, by way of derogation from that principle, it is not to divulge to third parties confidential information that it receives where confidential treatment has been requested and justified for that information, except for information which must be made public in order to protect public health. In those circumstances, having regard to the lack of verifiable and convincing evidence relating to the confidential nature of the information in question, it cannot be asserted that disclosure of the information in question goes beyond what is necessary to achieve the objectives pursued by EFSA.

72Regarding the argument alleging that EFSA failed to observe its duty to state reasons on the ground that EFSA did not provide reasons for disregarding the submissions that were reiterated during the procedure, it should be noted that, in the annexes to the decision of 18 November 2019 and to the contested decision, EFSA sets out in detail the reasons why the applicant’s requests for confidential treatment have not been accepted.

73It should be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern for the purposes of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, order of 5 February 2019, Trifolio-M and Others v EFSA, T‑675/18 R, not published, EU:T:2019:64, paragraph 71 and the case-law cited).

74EFSA cannot therefore be criticised, prima facie, for having disregarded its duty to state reasons.

75Accordingly, the arguments put forward by the applicant in support of the sixth plea in law do not appear to be such as to establish the existence of a prima facie case.

76It follows from all of the foregoing that the application for interim relief must be dismissed on the ground that there is no prima facie case, without it being necessary either to examine the condition relating to urgency or the weighing up of interests or to deal with the issues of admissibility raised by EFSA.

77As the present order closes the interim proceedings, the order of 7 April 2020, Indofil Industries v EFSA, T‑162/20 R, adopted on the basis of Article 157(2) of the Rules of Procedure, under which EFSA had been ordered to suspend the operation of the contested decision until the date of the order terminating the present interim proceedings, must be cancelled.

Costs

Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

hereby orders:

1.The application for interim relief is dismissed.

2.The order of 7 April 2020 made in Case T‑162/20 R is cancelled.

3.The costs are reserved.

Luxembourg, 12 August 2020.

Registrar

—

Language of the case: English.