Corte di giustizia UE/2016

[OSCURATO:PERSONA]-[OSCURATO:PERSONA] 14 June 2016 ( * ) (Appeal — [OSCURATO:PERSONA] for interim measures — Procedure for placing plant protection products on the market — Publication of documents relating to that procedure — Application for confidential treatment of certain information contained in those documents — Rejection — Application for suspension of the decision rejecting the application for confidential treatment and for the grant of other interim measures — Urgency) [OSCURATO:PERSONA] C‑134/16 P(R), APPEAL under the second paragraph of [OSCURATO:PERSONA] 57 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 4 March 2016, [OSCURATO:PERSONA] BV, established in Amsterdam ([OSCURATO:PERSONA]), represented by C. Mereu and K. [OSCURATO:PERSONA], avocats, applicant, the other party to the proceedings being: [OSCURATO:PERSONA] (EFSA), represented by D. Detkten and S. Gabbi, acting as Agents, and R. [OSCURATO:PERSONA] and C. Wagner, avocats, defendant at first instance, [OSCURATO:PERSONA]-[OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], M. Wathelet, makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] BV seeks to have set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 29 February 2016 in [OSCURATO:PERSONA] v EFSA (T‑725/15 R, not published, ‘the order under appeal’, EU:T:2016:128), by which the [OSCURATO:PERSONA] rejected its application for suspension of the operation of the decision of the [OSCURATO:PERSONA] (EFSA) of 10 December 2015 (‘the contested decision’) concerning the publication of the EFSA conclusion on the [OSCURATO:PERSONA] on the review of the approval of the active substance diflubenzuron regarding the metabolic 4-chloroaniline (PCA) (‘the EFSA conclusion’), in respect of which [OSCURATO:PERSONA] requested partial confidential treatment. Background to the dispute, procedure before the [OSCURATO:PERSONA] and the order under appeal 2 [OSCURATO:PERSONA] is a company that develops, produces and sells agrochemical and specialty chemicals. In accordance with the arrangements set out in [OSCURATO:PERSONA] 91/414/EEC of 15 [OSCURATO:PERSONA] 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), it notified the competent authorities of the active substance diflubenzuron, an insecticide used on a variety of crops, mainly apples, pears and mushrooms. 3 [OSCURATO:PERSONA] 2008/69/EC of 1 [OSCURATO:PERSONA] 2008 amending [OSCURATO:PERSONA] 91/414 (OJ 2008 L 172, p. 9) included diflubenzuron in Annex I to [OSCURATO:PERSONA] 91/414 with a view to the marketing of that substance and, at the same time, required [OSCURATO:PERSONA] to submit ‘confirmatory data’ on the potential genotoxicity of the impurity and metabolite 4-chloroaniline (PCA). 4 Following the examination of those data by the various bodes responsible for the authorisation procedure established by [OSCURATO:PERSONA] 91/414, including EFSA, the [OSCURATO:PERSONA] formally informed [OSCURATO:PERSONA], in [OSCURATO:PERSONA] 2013, that the approval of diflubenzuron was being reviewed under [OSCURATO:PERSONA] 21 of [OSCURATO:PERSONA] (EC) No 1107/2009 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 21 October 2009 concerning the placing of plant protection products on the market and repealing Directives 79/117/EEC and 91/414 (OJ 2009 L 309, p. 1). 5 [OSCURATO:PERSONA] 2014, [OSCURATO:PERSONA] submitted to the Kingdom of Sweden, the [OSCURATO:PERSONA] (‘the RMS’) for diflubenzuron, data intended to address potential concerns with the metabolite. [OSCURATO:PERSONA] 2014, the RMS released a draft report evaluating the updated data, in which it concluded that the potential exposure to PCA from the representative use of diflubenzuron in pome fruits did not pose a risk (‘the [OSCURATO:PERSONA] 2014 report’). [OSCURATO:PERSONA], the other [OSCURATO:PERSONA] and EFSA were given the opportunity to comment on that report. 6 Subsequently, the RMS produced an addendum to the [OSCURATO:PERSONA] 2014 report, in which it stated that [confidential] (‘the [OSCURATO:PERSONA] 2015 addendum’). 7 In order to address the content of the [OSCURATO:PERSONA] 2015 addendum, [OSCURATO:PERSONA] submitted a scientific paper to EFSA in August 2015, which EFSA refused to take into account, on the ground that [OSCURATO:PERSONA] had already been given the opportunity to comment on the [OSCURATO:PERSONA] 2014 report. 8 In its conclusion, of 27 August 2015, EFSA stated that it could not be concluded that [confidential] . 9 [OSCURATO:PERSONA] was asked to identify potentially confidential information in that document before it was published on the EFSA website. In reply, [OSCURATO:PERSONA] requested that certain parts of the document be redacted on grounds of confidentiality under [OSCURATO:PERSONA] 63 of [OSCURATO:PERSONA] 1107/2009, paragraphs 1 and 2 of which provide as follows: ‘1.      A person requesting that information submitted under this [OSCURATO:PERSONA] 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. 2.      Disclosure of the following information shall normally be deemed to undermine the protection of the commercial interests or of privacy and the integrity of the individuals concerned: … (g)      names and addresses of persons involved in testing on vertebrate animals.’ 10 EFSA granted the request for confidential treatment seeking the redaction of the names of the authors of studies and reports, in accordance with [OSCURATO:PERSONA] 63(2)(g) of [OSCURATO:PERSONA] 1107/2009, and the request for the correction of certain material mistakes. However, EFSA refused the requests based on [OSCURATO:PERSONA] 63(1) of that regulation, seeking the redaction of sections containing information which might undermine [OSCURATO:PERSONA]’ commercial interests, on the grounds, inter alia, that the latter had been given the opportunity to comment on the [OSCURATO:PERSONA] 2014 report and would have the chance to comment on the [OSCURATO:PERSONA]’s final decision. Moreover, the mere risk that most of the information in question would harm [OSCURATO:PERSONA]’ image was not sufficient to justify treating it as confidential, bearing in mind EFSA’s obligation to publish information that might have an effect on public health. 11 On 12 October 2015, [OSCURATO:PERSONA] requested EFSA to review the decision rejecting its claims for confidential treatment. In support of that request, it submitted that EFSA had, inter alia, infringed [OSCURATO:PERSONA] (EC) No 178/2002 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 28 [OSCURATO:PERSONA] 2002 laying down the general principles and requirements of food law, establishing the [OSCURATO:PERSONA] and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1). It submitted that although, under that regulation, the EFSA conclusion should have ‘high scientific quality’, that authority had formed its conclusion of the basis of the [OSCURATO:PERSONA] 2015 addendum, which was itself based on questionable science and truncated information. [OSCURATO:PERSONA] also contended that, by wilfully ignoring its comments, EFSA had infringed its rights of defence and acted contrary to its obligations under that regulation to base its assessments on ‘all the available scientific evidence’. [OSCURATO:PERSONA], there was no reliable evidence that [confidential] . 12 By the contested decision, EFSA definitively rejected [OSCURATO:PERSONA]’ claims for confidential treatment and published the EFSA conclusion. 13 On 10 December 2015, [OSCURATO:PERSONA] was notified of that decision and, on 11 December 2015, the EFSA conclusion was published in full on EFSA’s website. 14 By application lodged at the Registry of the [OSCURATO:PERSONA] on 11 December 2015, [OSCURATO:PERSONA] brought an action for annulment of the contested decision. 15 By separate document lodged on the same day, [OSCURATO:PERSONA] filed an application requesting the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] to grant interim measures. 16 By order of 15 December 2015 ( [OSCURATO:PERSONA] v EFSA , T‑725/15 R), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] granted, under [OSCURATO:PERSONA] 157(2) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], temporary suspension of operation of the contested decision and ordered EFSA immediately to withdraw the EFSA conclusion from its website. EFSA complied with the order on the same day. 17 On 29 February 2016, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] adopted the order under appeal, by which he decided that the publication of the EFSA conclusion was not likely to cause [OSCURATO:PERSONA] serious and irreparable harm of either a financial or non-material nature and that there was therefore no urgent need to grant the interim measures sought. On that basis, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] rejected [OSCURATO:PERSONA]’ application without examining the conditions relating to a prima facie case or weighing up the interests involved. Procedure before the [OSCURATO:PERSONA] of Justice and forms of order sought by the parties 18 By its appeal, [OSCURATO:PERSONA] claims, in essence, that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        reinstate the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 15 December 2015 ( [OSCURATO:PERSONA] v EFSA , T‑725/15 R), in so far as it orders EFSA to suspend operation of the contested decision and remove the EFSA conclusion from its website; –        order EFSA to pay a daily financial penalty in order to ensure that the removal obligation is complied with; –        in the event that its appeal is successful, give a final ruling on its application for interim measures by (i) suspending the contested decision pending full resolution of the dispute in the main proceedings and (ii) granting the interim relief measures necessary, and –        order EFSA to pay all the costs, including those relating to the proceedings before the [OSCURATO:PERSONA]. 19 EFSA contends that the [OSCURATO:PERSONA] of Justice should dismiss the appeal and order [OSCURATO:PERSONA] to pay the costs. 20 On 7 March 2016, [OSCURATO:PERSONA] filed an application for interim measures seeking, in essence, the suspension of the order under appeal and the contested decision, as well as further interim measures. 21 By order of 11 March 2016 in [OSCURATO:PERSONA] v EFSA (C‑134/16 P(R), EU:C:2016:164), pursuant to [OSCURATO:PERSONA] 160(7) of the [OSCURATO:PERSONA] of Procedure, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice suspended operation of the contested decision pending the adoption of the present order and ordered EFSA not to publish its conclusion. The appeal 22 [OSCURATO:PERSONA] puts forward six grounds of appeal, alleging six errors of law. The first four grounds of appeal, alleging errors of law regarding the examination of the serious and irreparable nature of the non-material harm alleged Arguments of the parties 23 With regard to the purportedly serious and irreparable nature of the non-material harm alleged, [OSCURATO:PERSONA] takes issue with the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] for stating, in paragraph 51 of the order under appeal, that ‘[a]ccording to settled case-law, annulment of the contested decision on conclusion of the main proceedings would provide sufficient reparation for the alleged non-material damage (see, to that effect, orders of 25 March 1999 in Willeme v [OSCURATO:PERSONA] , C‑65/99 P(R), ECR, EU:C:1999:176, paragraph 14; 22 [OSCURATO:PERSONA] 2010 in H v [OSCURATO:PERSONA] and Others , T‑271/10 R, EU:T:2010:315, paragraph 36, and 18 November 2011 in EMA v [OSCURATO:PERSONA] , T‑116/11 R, EU:T:2011:681, paragraph 21)’. Not only is there no settled case-law on that question but the decisions on which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] relied provide no justification for that assertion in paragraph 51 of the order under appeal. In actual fact, the relevant test for determining whether there is likely to be non-material damage is to verify whether the suspension of publication sought would ensure that the judgment on the substance takes full effect. In the present case, the judgment concluding the substantive proceedings cannot repair all the damage to [OSCURATO:PERSONA]’ reputation that it is alleged will occur if EFSA’s conclusion is published, with the result that publication of that conclusion should be suspended. 24 By its second ground of appeal, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] erred in law by considering, in paragraph 52 of the order under appeal, that if the contested decision were annulled, a publicity campaign could remedy the harm caused to the reputation of chemical products such as diflubenzuron. That is tantamount to laying down an irrebuttable presumption that such a campaign would be sufficient to remedy the non-material harm caused by the publication of the EFSA conclusion. 25 Moreover, with regard to the claim that the non-material harm alleged would be serious, by its third ground of appeal, [OSCURATO:PERSONA] takes issue with the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] for failing, in paragraph 54 of the order under appeal, in his duty to provide a proper statement of reasons, by taking the view that, even if the sales of diflubenzuron were to cease entirely as a result of the publication of the EFSA conclusion, the volume of those sales does not appear sufficiently high to reach the level of seriousness required. 26 By its fourth ground of appeal, [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] concluded, in paragraphs 54 and 55 of the order under appeal, that the non-material harm in question is not serious, on the basis of his personal opinion that [confidential] is unlikely to harm [OSCURATO:PERSONA]’ reputation as a business and [confidential] would not necessarily have an adverse effect on the reputation of the undertaking concerned. Moreover, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] failed to address [OSCURATO:PERSONA]’ contentions concerning the harm specifically caused to the reputation of products containing diflubenzuron. [OSCURATO:PERSONA], [OSCURATO:PERSONA] submits that stigma inevitably attaches to [confidential] , which may therefore be presumed without having to be proved. 27 EFSA disputes [OSCURATO:PERSONA]’ arguments. Findings of the [OSCURATO:PERSONA] 28 For the purpose of the reply to the second ground of appeal, which it is appropriate to consider first, it should be noted that that ground is based on a misreading of paragraph 52 of the order under appeal. 29 Indeed, in addressing the arguments concerning the claim that the non-material harm alleged by [OSCURATO:PERSONA] was irreparable, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] stated, in paragraph 52 of the order under appeal, that the latter had not established, to the requisite legal standard, the existence of obstacles of a structural or legal nature preventing it from restoring its reputation. In reaching that conclusion, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] relied on [OSCURATO:PERSONA]’ assertion that [confidential] and described that assertion as mere speculation unsupported by any evidence. 30 It is only when drawing the appropriate inferences from that conclusion, which is not disputed by [OSCURATO:PERSONA], that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] stated that it appeared plausible that any harm to [OSCURATO:PERSONA]’ reputation ‘could be restored if the contested decision were annulled, where appropriate by means of a publicity campaign organised by [[OSCURATO:PERSONA]], aimed at the circles concerned’. 31 As a consequence, contrary to what is claimed by [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] did not lay down a presumption that a publicity campaign would necessarily be an appropriate means of remedying the non-material damage in question or require [OSCURATO:PERSONA] to prove the contrary. 32 It follows from the foregoing considerations that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] did not err in law as regards the standard of the burden of proof imposed for the purpose of establishing the irreparable nature of the harm alleged and the second ground of appeal must therefore be rejected as unfounded. 33 The grounds adopted by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in paragraph 52 of the order under appeal are therefore sufficient to justify the conclusion that the non-material damage alleged was not irreparable and it follows that the error which [OSCURATO:PERSONA] attributes to the [OSCURATO:PERSONA] in its first ground of appeal cannot call that conclusion into question. Indeed, even if annulment of the contested decision were not sufficient to remedy the damage alleged, the fact remains that [OSCURATO:PERSONA] has failed to prove that that damage is irreparable due to obstacles of a structural or legal nature. 34 Accordingly, the first ground of appeal must be rejected as ineffective. 35 As regards the third and fourth grounds of appeal, alleging that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] erred in law in his assessment of the seriousness of the non-material damage alleged, it is sufficient to note that, as is apparent from the considerations set out above, [OSCURATO:PERSONA] has not succeeded in demonstrating that the [OSCURATO:PERSONA] was incorrect in his view that the non-material damage in question was not irreparable. 36 As a consequence, even if the third and fourth grounds of appeal were upheld, that would still not have the effect of setting aside the order under appeal, since those grounds of appeal do not call into question the assertion that the non-material damage alleged is not irreparable or, therefore, the conclusion, in paragraph 56 of the order under appeal, that such damage does not justify the interim measures sought. 37 Accordingly, the third and fourth grounds of appeal must also be rejected as ineffective. The fifth ground of appeal, alleging an error of law in the examination of whether the financial harm alleged is irreparable Arguments of the parties 38 By its fifth ground of appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] erred in law by stating, in paragraph 65 of the order under appeal, that if the [OSCURATO:PERSONA] annulled the contested decision, it would have to be content with subsequent financial compensation to remedy the financial harm alleged, and that it had failed to show that it would be prevented from obtaining such compensation through an action for damages. 39 In particular, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] failed to take account of the arguments set out by [OSCURATO:PERSONA] in its application for interim relief, in which it explained why subsequent financial compensation would not make good either the damage caused by the continuing publication of the EFSA conclusion or the effects of that publication on its reputation. [OSCURATO:PERSONA], [OSCURATO:PERSONA] argued in that application that the damage to its reputation was non-material and unquantifiable damage, since the grant of compensation, of whatever amount, would not change the opinion of consumers and customers following publication of the EFSA conclusion. 40 EFSA disputes that line of argument. Findings of the [OSCURATO:PERSONA] 41 For the purpose of ruling on the fifth ground of appeal, it should be noted that, although it is directed at paragraphs 64 and 65 of the order under appeal, its purpose is in fact to call into question the assessment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] concerning the non-material damage allegedly suffered by [OSCURATO:PERSONA] as a result of the effects of the publication of the EFSA conclusion on its reputation. 42 That assessment, which is set out in paragraphs 50 to 56 of the order under appeal and with which [OSCURATO:PERSONA] does not take issue on the ground that it failed to address its arguments, was unsuccessfully challenged by the appellant in its first four grounds of appeal, as is apparent from paragraphs 28 to 37 of the present order. 43 Consequently, the fifth ground of appeal must also be rejected. The sixth ground of appeal, alleging infringement of the duty to state reasons Arguments of the parties 44 By its sixth ground of appeal, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] erred in law by failing to address the argument, raised in paragraph 71 of its application for interim relief, that the disclosure of the EFSA conclusion would prejudice the outcome of the main action and thus jeopardise its right to an effective remedy, as enshrined in [OSCURATO:PERSONA] 6 of the [OSCURATO:PERSONA] for the Protection of [OSCURATO:PERSONA], signed in Rome on 4 November 1950, and in [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 45 EFSA disputes that line of argument. Findings of the [OSCURATO:PERSONA] 46 For the purpose of ruling on the sixth ground of appeal, it should be noted, first, that, in the context of an appeal, the purpose of review by the [OSCURATO:PERSONA] of Justice is, inter alia, to consider whether the [OSCURATO:PERSONA] addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the plea alleging that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 36 of the Statute of the [OSCURATO:PERSONA] of Justice, applicable to the [OSCURATO:PERSONA] by virtue of the first paragraph of [OSCURATO:PERSONA] 53 of that Statute, and from [OSCURATO:PERSONA] 119 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] (order of 13 December 2012 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑593/11 P, EU:C:2012:804, paragraph 27). 47 In that regard, it is clear from the settled case-law of the [OSCURATO:PERSONA] of Justice that that court does not require the [OSCURATO:PERSONA] to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties to the case and that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] of Justice with sufficient material for it to exercise its power of review (order of 13 December 2012 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑593/11 P, EU:C:2012:804, paragraph 28). 48 In the present case, it is apparent from paragraph 71 of its application for interim relief that, in citing case-law covering the specific area of proceedings relating to the interim protection of information alleged to be confidential, [OSCURATO:PERSONA] claimed, in essence, that the publication of the EFSA conclusion would affect the outcome of the main proceedings and thereby jeopardise its fundamental right to an effective remedy. 49 However, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] stated, in paragraphs 34 and 35 of the order under appeal, that [OSCURATO:PERSONA] had failed to identify any information which could be classified as confidential, so that the case on which he was required to adjudicate did not have the characteristics of a case covered by that specific area of proceedings. [OSCURATO:PERSONA] not only failed to dispute that point but even confirmed it in its appeal when it stated that its appeal did not concern paragraphs 29 to 36 of the order under appeal. 50 Consequently, the sixth ground of appal must be rejected as unfounded. 51 [OSCURATO:PERSONA] has been unsuccessful in all its grounds of appeal, the appeal must be dismissed in its entirety. Costs 52 [OSCURATO:PERSONA] 138(1) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 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. 53 [OSCURATO:PERSONA] EFSA has applied for costs and [OSCURATO:PERSONA] has been unsuccessful, [OSCURATO:PERSONA] must be ordered to pay the costs incurred in the present appeal proceedings and in the interim proceedings in [OSCURATO:PERSONA] C‑134/16 P(R)-R. On those grounds, the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] hereby orders that: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] is to pay the costs of the appeal proceedings, including those incurred in the interim proceedings in [OSCURATO:PERSONA] C‑134/16 P(R)-R. [Signatures] * Language of the case: English.