On 10 September 2013, the Vice-President of the Court of Justice published an order in Commission v Pilkington, upholding the interim measures granted by the President of the General Court ("GC") but amending the reasoning behind the assessment (C-278/13 P(R)).
On 11 March 2013, the GC President had granted an application for interim measures to protect Pilkington's confidential information pending its appeal against the Hearing Officer's decision, which rejected the application for confidential treatment of the Commission decision in the car glass cartel (Case COMP/39.125). The GC President had found that because Pilkington's rights to professional secrecy and effective judicial remedy were in jeopardy, as fundamental rights, they concerned per se serious and irreparable harm.
In the present order, the Vice-President upheld the GC assessment that fundamental rights were at issue, given that the disclosure of the contested information could irreversibly undermine the commercial interest of Pilkington. Nevertheless, the Vice-President went further and conducted the assessment of whether serious and irreparable harm could occur. The Vice-President held that an application for interim relief measures must include proof that the potential harm is both serious and irreparable, irrespective of whether the case concerns a potential restriction or an outright deprivation of fundamental rights.
It is also noteworthy that the Vice-President confirmed that the age of the contested information is not per se dispositive of a claim for confidentiality. The assessment for an application of interim measures must look at whether there is a prima facie case for harm, urgency and whether there is a countervailing public interest, notwithstanding the age of the document.