The Court of Justice of the European Union (“CJEU”) has handed down a judgment dismissing an appeal by the Commission against a General Court (“GC”) order partially upholding the application for interim relief by Pilkington Group Ltd (“Pilkington”). In 2008 Pilkington had been fined, along with three other companies, for participation in a market-sharing cartel in the car glass sector. The origin of the application for interim relief dates to April 2011, when the Commission informed Pilkington of its intentions to publish a non-confidential version, fuller than a preceding version, of its 2008 decision. The Commission did not accept all of Pilkington’s requests for confidential treatment regarding certain information to be included in the fuller version. Therefore, in October 2012, Pilkington filed before the GC, beside an action for annulment, an application for interim measures seeking to suspend the operation of the decision until the GC handed down its ruling and an order to the effect that the Commission would refrain from publishing the fuller version of its 2008 decision. In March 2013, the GC handed down its order granting interim measures in relation to certain information relating, in particular, to customer names and other information which might identify individual customers, product names and descriptions, shares of business of customers and pricing calculations. The GC held that, in order to protect Pilkington’s fundamental right to the protection of its professional secrets, which would irreversibly lose any meaning if the documents were to be published by the Commission before it adjudicated on Pilkington’s action for annulment, the condition of urgency was fulfilled. The GC also found that the interim measures were justified prima facie because complex questions were raised which required a thorough examination in the main proceedings. On appeal to the CJEU, the Commission claimed that the GC had erred in law as to the assessment of the conditions for granting of interim measures relating to urgency and to the establishment of a prima facie case. Whereas the CJEU concluded that the GC had erred in law in finding that the alleged breach of Pilkington's right to the protection of professional secrecy and of its right to an effective judicial remedy were in themselves sufficient for the purpose of establishing the likelihood of serious and irreparable harm, the CJEU held that the publication of the information in question, assuming that it was covered by business secrecy, would necessarily cause Pilkington significant harm and that the ensuing damage could be irreparable. The CJEU did not accept the Commission’s argument, according to which the harm was purely financial and could be repaired because, notwithstanding the fact that damage of a pecuniary nature cannot in general be regarded as irreparable, such harm could nevertheless be considered irreparable if the harm cannot be adequately identified or quantified and it would not, in practice, be possible to make good for that harm by bringing an action for damages. As to the establishment of a prima facie case, the CJEU did not uphold the Commission’s claim according to which the GC had reversed on the Commission the burden of proof by requiring it to demonstrate that the information at issue was clearly not confidential. The CJEU held that, in the circumstances of the case, the GC had not been in a position to conclude that there was no prima facie case, as it was not obvious that the information in question was not confidential. Therefore, the CJEU concluded that the GC did not err in law in its application of the condition relating to the establishment of a prima facie case. The CJEU dismissed the Commission’s appeal. Source: Case C-278/13