ORDER OF THE PRESIDENT OF THE GENERAL COURT
2 July 2024 (*)
(Interim relief – Digital services – Regulation (EU) 2022/2065 – Very large online platforms – Application for suspension of operation of a measure – Prima facie case – Urgency – Weighing up of interests)
In Case T‑138/24 R,
Aylo Freesites LTD, established in Nicosia (Cyprus), represented by C. Thomas, A. Bray, A. Ghalamkarizadeh and J. Beckedorf, lawyers,
applicant,
v
European Commission, represented by O. Gariazzo and P.‑J. Loewenthal, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By its application under Articles 278 and 279 TFEU, the applicant, Aylo Freesites LTD, seeks suspension of the operation of Commission Decision C(2023) 8842 final of 20 December 2023 designating Pornhub as a very large online platform in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council (‘the contested decision’).
Background to the dispute and forms of order sought by the parties
2 The applicant operates the adult content online platform ‘Pornhub’, which enables users to watch adult videos uploaded and shared by verified users.
3 Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ 2022 L 277, p. 1) provides that the European Commission is to adopt a decision designating as a very large online platform or a very large online search engine the online platform or the online search engine which has a number of average monthly active recipients of the service in the European Union equal to or higher than 45 million.
4 Article 39(1) of Regulation 2022/2065 provides that providers of very large online platforms or of very large online search engines that present advertisements on their online interfaces are to compile and make publicly available in a specific section of their online interface, through a searchable and reliable tool that allows multicriteria queries and through application programming interfaces, a repository containing the information referred to in paragraph 2 of that article, for the entire period during which they present an advertisement and until one year after the advertisement was presented for the last time on their online interfaces.
5 On 20 December 2023, by the contested decision, the Commission designated the online platform ‘Pornhub’ as a very large online platform in accordance with Article 33(4) of Regulation 2022/2065.
6 By application lodged at the Court Registry on 1 March 2024, the applicant brought an action for, inter alia, annulment of the contested decision.
7 By a separate document lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:
– order the suspension of the operation of the contested decision in so far as its effect is to require the applicant to make an advertisement repository publicly available under Article 39 of Regulation 2022/2065;
– order the Commission to pay the costs.
8 In its observations on the application for interim measures, lodged at the Court Registry on 18 March 2024, the Commission contends, in essence, that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs of the present proceedings.
9 By a measure of organisation of procedure of 2 April 2024, the President of the General Court requested the parties to submit their observations on the consequences to be drawn, for the present case, from the order of 27 March 2024, Commission v Amazon Services Europe (C‑639/23 P(R), EU:C:2024:277).
10 On 15 and 16 April 2024 respectively, the applicant and the Commission complied with that request.
11 By a measure of organisation of procedure of 31 May 2024, the President of the General Court put a question to the Commission to be answered in writing.
12 On 7 June 2024, the Commission replied to the question put by the President of the General Court.
Law
General considerations
13 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. 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 the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
14 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to ‘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’.
15 The judge hearing an application for interim measures 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, so that applications for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, where 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).
16 In the context of that overall examination, the judge 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).
17 Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
18 In the circumstances of the present case, it is appropriate to examine first of all whether the condition relating to the establishment of a prima facie case is satisfied.
The prima facie case
19 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 relied on 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 complex issues of law the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the court hearing the application for interim relief 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 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 188 and the case-law cited).
20 In order to show that the contested decision is, prima facie, unlawful, the applicant relies on four pleas in law put forward in support of the main action. The first three pleas concern the application of Article 33 of Regulation 2022/2065, while the fourth plea relates to Article 39 of that regulation.
21 By its fourth plea, which it is appropriate to examine first, the applicant raises a plea of illegality in respect of Article 39 of Regulation 2022/2065, alleging infringement of the principle of equal treatment and of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
22 In that regard, the applicant submits that it does not contest the requirement to compile the repository or to make the information it contains available to the Commission, Digital Service Coordinators and vetted researchers under other provisions of Regulation 2022/2065. However, making the repository publicly available would cause severe harm to its business interests, in so far as that would lead to the unjustified disclosure of its strategic secrets to competitors and would encourage advertisers to turn to other platforms.
23 According to the applicant, such disclosure does not meet any objectives of general interest recognised by the European Union, nor does it protect the rights and freedoms of others. The objective of Article 39 of Regulation 2022/2065, which is to facilitate supervision and research into emerging risks brought about by the distribution of advertising online, is achieved by making the information available to the Commission, the competent Digital Service Coordinator and vetted researchers. A public advertisement repository is not needed.
24 The Commission contends that the applicant has not shown that its fourth plea has a reasonable chance of succeeding.
25 In the first place, according to the Commission, that plea is manifestly inadmissible and cannot therefore form the basis of a prima facie case. In accordance with the case-law of the Court of Justice, a plea of illegality, raised under Article 277 TFEU, in respect of Article 39 of Regulation 2022/2065 is admissible only in so far as that Article 39 constitutes the legal basis of the contested decision. Most importantly, it is not the contested decision that imposes on the applicant the obligations under Article 39 of Regulation 2022/2065 in relation to Pornhub. The contested decision merely designates Pornhub as a very large online platform in accordance with Article 33(4) of Regulation 2022/2065. Therefore, the contested decision is not an implementing measure through which Article 39 of Regulation 2022/2065 is applied to Pornhub.
26 In the second place, the Commission contends that the applicant has failed to demonstrate that the information which it is required to disclose in accordance with Article 39 of Regulation 2022/2065 is confidential in nature, that the disclosure of that information would cause serious harm to it or its advertising partners and that the information in question is worthy of protection. In any event, the applicant is already required to disclose most of that information under other provisions of EU law. In addition, the Commission submits that information similar to that referred to in Article 39(2) of Regulation 2022/2065 can be obtained, as far as the applicant is concerned, from commercial offers.
27 In the third place, as regards the applicant’s claim that Article 39 of Regulation 2022/2065 infringes its freedom to conduct a business and its right to property, the Commission observes that any interference is provided for by law and does not affect the essence of that freedom or right, since the applicant may continue to provide the Pornhub service in the European Union. The Commission further observes that any interference with that freedom and that right meets an objective of general interest recognised by the European Union, namely to create a safe digital space for recipients of intermediary services, while ensuring that fundamental rights are respected.
28 In the fourth place, the Commission submits that the applicant has not substantiated the claim of unequal treatment.
29 In that regard, in the first place, as regards the admissibility of the fourth plea relied on by the applicant, alleging the illegality of Article 39 of Regulation 2022/2065, it must be recalled that the Vice-President of the Court of Justice decided, in his order of 27 March 2024, Commission v Amazon Services Europe (C‑639/23 P(R), EU:C:2024:277, paragraph 91), that the assessment, for the purpose of applying Article 277 TFEU, of the nature of the legal connection between Article 39 of Regulation 2022/2065 and a designation decision under Article 33 of that regulation, such as the contested decision, appears to constitute a complex point of law the solution to which is not immediately obvious and therefore calls for a detailed examination.
30 In the second place, if the admissibility of the fourth plea were to be accepted, the examination of that plea would mean that the court adjudicating on the substance would determine whether Article 39 of Regulation 2022/2065 complies with the principle of equal treatment and with Articles 16 and 17 of the Charter (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 92).
31 In order to assess the condition relating to the establishment of a prima facie case, it is necessary from the outset to examine that plea in so far as it relates to an alleged infringement of Articles 16 and 17 of the Charter.
32 Article 16 of the Charter provides that the freedom to conduct a business in accordance with EU law and national laws and practices is recognised.
33 Article 17 of the Charter provides that everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.
34 It is apparent from Article 39(1) and (2) of Regulation 2022/2065 that the application of those provisions to the applicant would require it to make publicly available a repository containing various items of information relating to advertisements presented on very large online platforms. That information includes, in particular, the content of the advertisement, the person on whose behalf the advertisement is presented, the period during which the advertisement was presented, the main parameters used for targeting certain recipients, commercial communications published on very large online platforms or the total number of recipients of the service reached.
35 Since that information, taken together, provides detailed particulars on all of the applicant’s online advertising activities, including its relations with its customers or the precise details of commercial communications campaigns conducted, it cannot a priori be ruled out that the obligations imposed by Article 39 of Regulation 2022/2065 may be regarded as limiting the rights that the applicant derives from Articles 16 and 17 of the Charter, without it being necessary, in order to reach such a preliminary conclusion, for the applicant to put forward additional arguments intended to establish the confidential nature of that information (see, to that effect and by analogy, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 97).
36 Admittedly, the situation would be different if it were to be considered that, as the Commission submits, the information which Article 39 of Regulation 2022/2065 requires the applicant to disclose is, in reality, already available to the public, irrespective of the application of that article (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 98).
37 In that regard, it does indeed seem that some of that information must be disclosed under Article 26 of Regulation 2022/2065, Article 6 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), Article 5 of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ 2019 L 186, p. 57) and Article 15 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).
38 For all that, it is not apparent from the Commission’s line of argument that all the information referred to in Article 39(2) of Regulation 2022/2065, and in particular the period during which the advertising is disseminated or the total number of recipients of the service reached, must be disclosed irrespective of the application of that Article 39. It must also be stated that the Commission is maintaining only that most of that information is covered by such disclosure obligations and that it does not therefore claim that that is the case for all of that information.
39 Moreover, the equivalent nature, for the purposes of the application of Articles 16 and 17 of the Charter, of disclosure of information to the user concerned alone or to the public as a whole is a largely new and somewhat complex issue (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 102).
40 In addition, although the Commission submits that information similar to that referred to in Article 39(2) of Regulation 2022/2065 can be obtained, as far as the applicant is concerned, from commercial offers, it does not specify the costs and difficulties that access to that similar information would entail. Moreover, it does not adduce any evidence in support of its assertion.
41 As regards the Commission’s argument that the applicant was required to demonstrate that disclosure of the information at issue is liable to cause serious harm to it or its advertising partners and that the information at issue is worthy of protection, that argument is based on an interpretation of the relevant provisions of the Charter that is not apparent, at first sight, either from the wording of those provisions or from the case-law of the Court of Justice. The merits of such an argument must therefore be assessed by the court adjudicating on the substance of the case (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 105).
42 In those circumstances, the judge hearing the application for interim measures cannot find that it has been established, with sufficient evidence, that the information which Article 39 of Regulation 2022/2065 requires the applicant to disclose is not confidential and, consequently, that the application of that Article 39 to the applicant would not result in a limitation of the rights that it may derive from Articles 16 and 17 of the Charter.
43 Such a limitation of those rights would, however, be such as to establish the illegality of Article 39 of Regulation 2022/2065 only if that limitation did not comply with the conditions set in Article 52(1) of the Charter (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 107).
44 That provision provides that limitations may be imposed on the exercise of rights such as those set forth in Articles 16 and 17 of the Charter as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 108).
45 The assessment to be carried out in order to determine whether those conditions are satisfied in the present case, however, involves taking into account various factors, such as the degree of contribution of the publication of all the information referred to in Article 39(2) of Regulation 2022/2065 to the attainment of the objectives pursued by the EU legislature, the degree of seriousness of the limitation of the rights provided for in Articles 16 and 17 of the Charter or indeed the possible existence of alternative solutions that are less prejudicial to those rights (see, to that effect and by analogy, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 109).
46 Therefore, even if the EU legislature were to be recognised as enjoying a broad discretion in that regard, the question whether it exceeded the limits of that discretion by adopting Article 39 of Regulation 2022/2065 constitutes, in the absence of clear precedents, a major legal disagreement the resolution of which is not immediately obvious (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P (R), EU:C:2024:277, paragraph 110).
47 It follows from the foregoing that, without prejudging the Court’s decision in the main action, it must be concluded that the fourth plea appears, prima facie, not unfounded and therefore calls for a detailed examination which cannot be carried out by the judge hearing the application for interim measures but must be examined in the main proceedings.
48 It must therefore be held that there is a prima facie case, in so far as the fourth plea appears, prima facie, not unfounded.
The condition of urgency
49 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to avoid a lacuna in the legal protection afforded by the EU judicature. To attain that objective, urgency must generally be assessed in the light of the need of an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27 and the case-law cited).
50 It is in the light of those criteria that it must be examined whether the applicant has succeeded in demonstrating urgency.
51 In the present case, in order to demonstrate the serious and irreparable nature of the damage alleged, in the first place, the applicant claims that the obligation laid down in Article 39 of Regulation 2022/2065 to make publicly available a highly detailed advertisement repository will cause serious harm to fundamental aspects of its business that will be irreparable.
52 In particular, according to the applicant, the application of the obligation to make the repository publicly available will result in a ‘self-reinforcing cycle’ of serious harm to the fundamental aspects of its business and its competitive position. Pornhub’s business model is centred around advertising, which accounts for 99% of its revenues, which enable creators to be remunerated for the content that they upload. That content attracts users, who attract advertisers. Ultimately, the revenues from the advertisers in turn attract content creators.
53 In addition, the applicant submits that a publicly accessible repository of all of Pornhub’s advertising partners will create a risk of deterring existing and potential advertisers from advertising on Pornhub. A significant proportion of advertisers on Pornhub are therefore likely to migrate their advertising to competing websites not subject to the obligations laid down in Article 39 of Regulation 2022/2065, in order to safeguard their commercial strategies, maintain their reputation and protect their privacy. For those reasons, the requirement to make the repository publicly available, laid down in Article 39 of Regulation 2022/2065, will lead to a significant loss of advertisers and, therefore, a sharp decline in advertising revenues for Pornhub. That will have a cascading effect, first on content creators who are attracted to the Pornhub platform in order to share in the advertising revenues. As content creators depart, user engagement will decline as well, further amplifying the negative impact on Pornhub’s advertising revenues.
54 In the second place, the applicant submits that the harm caused to it by the application of Article 39 of Regulation 2022/2065 will be irreparable because the information disclosed cannot be made confidential again and ‘advertisers, content creators and users who have switched to competing platforms are unlikely to return to Pornhub’.
55 In particular, according to the applicant, the information publicly disclosed cannot be made confidential again. Therefore, even if the Court were to annul Pornhub’s designation as a very large online platform in the main action, the disclosure of the commercially sensitive information of the applicant and its advertisers will remain irreversible since, once a person has acquired knowledge of that information by reading it, that knowledge cannot be taken back. Once confidential business strategies are made public, the initial situation cannot be restored.
56 The applicant further submits that, even if the requirement to make the advertisement repository publicly available is overturned, Pornhub’s loss of competitiveness caused by the public disclosures would be hard to restore. Throughout the period during which Pornhub is subject to the obligation, laid down in Article 39 of Regulation 2022/2065, to make the repository publicly available, advertisers, content creators and users that switch to competing platforms will be building business relationships with them, making it difficult for Pornhub to regain its market position even if that obligation is removed.
57 The Commission disputes the applicant’s arguments.
58 In the first place, the Commission contends that the information that Article 39(2) of Regulation 2022/2065 requires the applicant to make publicly available in the advertisement repository for Pornhub does not constitute confidential information. The applicant is already required to disclose most of that information under other provisions of EU law.
59 In the second place, the Commission submits that the applicant has failed to show that the disclosure of the information which it is required to make publicly available under Article 39 of Regulation 2022/2065 would cause it or its advertising partners serious and irreparable damage.
60 In particular, first, the Commission states that it is impossible for the applicant to show serious and irreparable damage without specifying which confidential information is at issue and substantiating precisely why it considers that its confidentiality would be breached due to the application of Article 39 of Regulation 2022/2065.
61 Second, according to the Commission, the applicant’s claims that allegedly confidential information could be used by its competitors to target Pornhub’s advertisers are vague and unconvincing.
62 Third, the damage that the applicant would suffer, according to its claims, by complying with Article 39 of Regulation 2022/2065 stems, according to the Commission, from a number of premisses that are purely speculative and based on future and uncertain events.
63 Fourth, the Commission submits that, in order to show urgency, the applicant must also demonstrate that the serious and irreparable damage it alleges is both likely and imminent.
64 Fifth, the Commission maintains that the alleged damage is purely financial, since it essentially consists of the loss of advertising revenues.
65 In the third place, the Commission submits that the interests liable to be harmed by disclosure of the information at issue are not worthy of protection and that the applicant has not demonstrated that that information constitutes a secret to be protected.
66 In that regard, in the first place, as regards the applicant’s argument that making the repository required by Article 39 of Regulation 2022/2065 publicly available will lead to a reduction in Pornhub’s advertising revenues, it must be stated that the alleged damage is purely financial.
67 According to the case-law, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the party seeking those measures would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P‑R, EU:C:2014:1749, paragraph 46 and the case-law cited). Since imminent disappearance from the market does constitute damage that is both irreparable and serious, adoption of the interim measure sought appears justified in such a situation (order of 9 June 2010, Colt Télécommunications France v Commission, T‑79/10 R, not published, EU:T:2010:228, paragraph 37).
68 Furthermore, according to settled case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable, since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before that person suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 TFEU and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).
69 While, in the case-law, account has also been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected, it must be pointed out that this situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders. A party seeking interim measures which invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that share is impossible by reason of obstacles of a structural or legal nature (see order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 35 and the case-law cited).
70 It is also settled case-law that, in order to assess whether the alleged damage is of a serious and irreparable nature justifying the suspension, exceptionally, of the operation of the act at issue, the judge hearing the application for interim measures must, in all cases, have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must in principle produce, with supporting documentation, an accurate overall picture of its financial situation (see, to that effect, order of 10 July 2018, Synergy Hellas v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited).
71 In the present case, it must be stated that the applicant neither establishes nor even claims that it is in a position that would imperil its financial viability before final judgment is given in the main action, in the light of its size, its turnover and the characteristics of the group to which it belongs.
72 The only quantitative element put forward by the applicant is the claim that Pornhub’s business model is centred around advertising, which accounts for 99% of its revenues.
73 Apart from that claim, the applicant provides no figures regarding the financial situation of the group of companies to which it belongs, from accounts or otherwise, that are capable of substantiating the existence of serious and irreparable damage. Although the applicant provides explanations of the cascading effects of the loss of advertising revenues, it does not specify the extent of that loss or its impact on the applicant’s financial viability.
74 Moreover, the application for interim measures also lacks details on the alleged loss of revenues or market share.
75 Although the applicant maintains that Pornhub’s loss of competitiveness caused by the public disclosures would be hard to restore, it does not refer, in its application for interim measures, to specific obstacles that would prevent it from regaining a significant proportion of its market share if it were subsequently no longer required to keep that repository online as a result of the annulment of the contested decision.
76 Admittedly, the expert report produced in Annex A.7 to the application for interim measures refers, in paragraph 4.32 et seq. of that annex, to the difficulty of ensuring that the content creators and users who leave the applicant’s platform return to it, in so far as competing platforms would benefit from self-reinforcing network effects whereby the increase in their advertising revenues would attract content creators and end users, with further effects on advertising revenues.
77 However, that expert report does not contain any information that makes it possible to assess the degree of probability of those assumptions materialising.
78 It cannot therefore be held that the applicant has established that there are obstacles of a structural or legal nature preventing it, if the contested decision is annulled, from regaining a significant proportion of any market share lost as a result of the repository required by Article 39 of Regulation 2022/2065 being made publicly available. It follows that the applicant has not shown, in any event, that the market losses resulting from making that repository available would cause it irreparable damage.
79 As regards, in the second place, the applicant’s argument that the damage caused by the application of Article 39 of Regulation 2022/2065 will be irreparable because the information disclosed cannot be made confidential again, it is apparent from the case-law that when, first, the applicant for interim measures alleges that the information whose publication he, she or it wishes provisionally to prevent constitutes business secrets and, second, that allegation satisfies the condition that there is a prima facie case, the judge hearing the application for interim measures is in principle required, when examining the condition of urgency, to start from the premiss that the information constitutes business secrets (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 126).
80 Since it is apparent from paragraphs 34 to 41 above that the applicant’s claim that at least some of the information referred to in Article 39(2) of Regulation 2022/2065 is confidential satisfies the condition that there is a prima facie case, it must be presumed, for the purpose of assessing the condition relating to urgency, that applying that provision will lead to the disclosure of confidential information.
81 In that context, it must be observed that the question of the extent to which the disclosure of allegedly confidential information will cause serious and irreparable damage depends on a combination of factors, such as how significant the information is in professional and commercial terms for the undertaking seeking its protection and the usefulness of that information for other market participants which are liable to examine and use it subsequently (see, to that effect, order of 10 September 2013, Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 42).
82 In the present case, the applicant relies on financial damage that stems from making a repository of all of Pornhub’s advertising partners publicly available, which will create a serious risk of deterring existing and potential advertisers from advertising on Pornhub and will give Pornhub’s competitors access to a ready-made target list that is complete, structured and searchable, together with highly sensitive information about each advertiser in each Member State.
83 In the light of the variety of the precise commercial information which is meant to appear in the repository required by Article 39 of Regulation 2022/2065, the interest of advertisers in being able to implement advertising practices which cannot be easily reproduced by their competitors and the advantage that the applicant’s competitors might derive from full access to such commercial information, the damage resulting from making that repository publicly available must be regarded as being of the serious nature required for the grant of interim measures (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 131 and the case-law cited).
84 The evidence put forward by the applicant therefore makes it possible to establish that it cannot await the outcome of the main proceedings without suffering serious damage.
85 As regards the irreparable nature of that damage, it must be recalled that, admittedly, damage of a financial nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before that person suffered the damage. That is however not the case, and such damage can then be deemed to be irreparable, if it cannot be quantified (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 92 and the case-law cited).
86 Nevertheless, the uncertainty linked to reparation for harm of a pecuniary nature in a possible action for damages cannot be regarded, in itself, as a circumstance capable of establishing that such a harm is irreparable, for the purposes of the case-law of the Court of Justice. At the stage of seeking interim relief, the possibility of subsequently obtaining compensation for pecuniary damage, if an action for damages is brought following annulment of the contested measure, is necessarily uncertain. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the final future decision that will be made in the main action, in this case an action for annulment, to which the interlocutory proceedings are an adjunct (see, to that effect, order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 93 and the case-law cited).
87 On the other hand, the situation is different where it is already clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that harm by bringing an action for damages. That may be the case, inter alia, in a situation involving the publication of specific commercial information that is confidential (see, to that effect, order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 94 and the case-law cited).
88 In that regard, it is clear that the harm that is liable to be suffered by the applicant due to the publication of its business secrets would differ, both in nature and in scale, according to whether the persons who acquire knowledge of those business secrets are its customers, its competitors, financial analysts or indeed members of the general public. It would be impossible to identify the number and status of all those who in fact had knowledge of the published information and thereby assess the consequences that the publication of that information might have on the applicant’s commercial and financial interests (see, to that effect, order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 95 and the case-law cited).
89 That uncertainty, which is also present in this case, is such as to demonstrate that the financial damage relied on is irreparable (see, to that effect, orders of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 96, and of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraphs 113 to 118).
90 In view of the foregoing considerations, it must be found that the condition relating to urgency is satisfied in the present case, since the likelihood of the applicant suffering serious and irreparable damage has been established to the requisite legal standard.
The weighing up of interests
91 According to settled case-law, the weighing up of interests requires the judge hearing an application for interim measures to determine whether or not the applicant’s interest in obtaining the measures sought outweighs the interest in the immediate application of the contested measure, by examining, more specifically, whether the possible annulment of that measure by the Court when ruling on the main application would allow the situation that would have been brought about by its immediate operation to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main application being dismissed (see order of 26 June 2003, Belgium and Forum 187 v Commission, C‑182/03 R and C‑217/03 R, EU:C:2003:385, paragraph 142 and the case-law cited).
92 As regards more particularly the condition that the legal situation created by an interim relief order must be reversible, it must be recalled that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future decision on the main action. Consequently, that procedure is merely ancillary to the main action to which it is adjunct, and accordingly the decision made by the judge hearing an application for interim relief must be provisional in the sense that it cannot either prejudge the future decision on the substance of the case or render it illusory by depriving it of practical effect (see order of 1 September 2015, Pari Pharma v EMA, T‑235/15 R, EU:T:2015:587, paragraph 65 and the case-law cited).
93 It must therefore be examined whether the applicant’s interests in obtaining the immediate suspension of the contested decision outweigh the interests pursued by the Commission in adopting that decision.
94 As regards the interests pursued by the applicant, it claims, first, that suspending the public availability of Pornhub’s advertisement repository will not undermine the objectives of Article 39 of Regulation 2022/2065, which are to facilitate supervision and research into emerging risks brought about by the distribution of advertising online. According to the applicant, those objectives can be achieved by means of Article 40 of Regulation 2022/2065, which protects confidential information by not making the information referred to in Article 39 of that regulation available to the general public, in particular to competitors. That would not undermine Pornhub’s business model by discouraging advertisers from publishing their advertisements on Pornhub and encouraging them to switch to adult content websites that are not subject to the obligations set out in Section 5 of Chapter III of Regulation 2022/2065.
95 Similarly, the applicant submits that suspending the obligation to make Pornhub’s advertisement repository publicly available will contribute to achieving the objectives of Regulation 2022/2065, since making the repository publicly available is counter-productive.
96 Second, the applicant states, in its response to the measure of organisation of procedure referred to in paragraph 10 above, that making the repository publicly available also concerns natural persons who advertise the specific content that they create for platforms such as those operated by the applicant. Disclosure of their identities risks exposing those natural persons to acts of harassment and discrimination, inter alia by financial institutions. The applicant states in that regard that, according to its estimate, 20% of advertisers present on its website are natural persons.
97 By contrast, the Commission submits, in essence, that the weighing up of interests militates against granting suspension of the operation of the contested decision, given, first, the importance of the interests which that decision seeks to safeguard, namely to protect society from the risks inherent in online advertising, to inform users about such advertisements and to supervise all instances of alleged illegality, justifying a limitation to companies’ business interests and requiring them to disclose certain information, even if that information is potentially confidential. That is particularly so in relation to the obligation to make the advertisement repository publicly available, since advertising and advertising revenues fuel the dissemination of illegal and harmful content online. Moreover, the complete implementation of Article 39 of Regulation 2022/2065 is all the more imperative given that adult content platforms are generally much less transparent.
98 Second, the unprecedented speed – only 16 months – with which political agreement was reached on Regulation 2022/2065 demonstrates the urgency which the EU legislature has attached to the pursuit of that objective. That is particularly the case with regard to the enhanced due diligence obligations which that regulation imposes on providers of very large online platforms, in particular Article 39 thereof, which the EU legislature specifically decided to apply before the general entry into application of the regulation in the light of the systemic societal risks associated with those types of services, including online content providers such as Pornhub, and their potential impact on a significant proportion of the European Union’s population.
99 As regards, in the first place, the interest in granting the interim measures sought, it must be pointed out that any decision annulling the contested decision would not be rendered ineffective if the application for interim measures were dismissed and if, as a result, the applicant were required immediately to make the repository required by Article 39 of Regulation 2022/2065 publicly available (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 144).
100 It is true that the information published in that repository pending a decision annulling the contested decision would, in practice, be definitively deprived of its confidential character, since it could no longer be withheld from the knowledge of third parties (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 145).
101 However, it follows from Article 39(1) of that regulation that that repository must be continuously updated, in so far as it must contain the information referred to in Article 39(2) of that regulation for the entire period during which the provider of the very large online platform concerned presents an advertisement and until one year after the advertisement was presented for the last time on its online interface (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 146).
102 It follows that, if the contested decision is annulled, the applicant will no longer be required to compile the repository required by that Article 39. Accordingly, it will no longer be required to keep online information relating to advertisements presented on Pornhub or to disclose information relating to developments in its advertising campaigns or to new advertising campaigns. That annulment would therefore be such as to ensure that advertisers returned to a more attractive business environment and to enable the applicant to develop new strategies in the management of its advertising activities without its competitors being able to acquaint themselves with them by means of that repository (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 147).
103 The annulment of the contested decision would therefore retain an interest for the applicant and real effectiveness, even in the absence of the grant of interim measures. Such a situation distinguishes the present case from those in which the Court of Justice relied decisively, in its assessment of the weighing up of the interests involved, on the fact that the disclosure of information contained in a decision or in a report would definitively render ineffective any annulment of the decision ordering disclosure of that information (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 148 and the case-law cited).
104 That being so, as the applicant submits and as is apparent from paragraphs 79 to 90 above, if interim measures are not granted, it is likely that the applicant will suffer serious and irreparable damage before any decision annulling the contested decision is made.
105 That fact cannot, however, be regarded as being, in itself, decisive, since the very purpose of weighing up the interests involved is to assess whether, despite the adverse effect on the interests of the applicant, which is at risk of suffering serious and irreparable damage, the taking into account of the interests in the immediate implementation of the contested decision is such as to justify the refusal to grant the interim measures sought (see order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 150 and the case-law cited).
106 For the purposes of that assessment, it should be noted that, although it follows from the examination of the condition relating to urgency that the applicant is in fact likely, if interim measures are not granted, to suffer serious and irreparable pecuniary damage, it is not apparent from the elements put forward by the applicant that the application to Pornhub of Article 39 of Regulation 2022/2065, pending the decision of the court adjudicating on the substance, would have the effect of jeopardising the applicant’s existence or long-term development.
107 First, as stated in paragraph 71 above, it is not claimed, let alone demonstrated, that the applicant would be exposed to a risk that it would cease operations if interim measures were not granted, in the light of its size, its turnover and the characteristics of the group to which it belongs.
108 In addition, it is apparent from paragraphs 74 to 78 above that the applicant has not established the existence of a risk of a significant and lasting loss of market share if Article 39 of Regulation 2022/2065 were applicable to Pornhub during the period between the date of the examination of its application for interim measures and that of the decision on the substance of the case.
109 Second, as regards the applicant’s argument, set out in its response to the measure of organisation of procedure, that there is a significant risk that the advertisement repository will be used as a ‘doxing’ list, since it makes publicly available the identities of individuals such as performers advertising their OnlyFans channels or individuals engaged in affiliate marketing, it must be borne in mind that the EU legislature specifically provides, in Article 39(2)(b) and (c), of Regulation No 2022/2065, that that repository is to include at least information on the natural or legal person on whose behalf the advertisement is presented and on the natural or legal person who paid for the advertisement.
110 Even if the EU legislature were to be recognised as enjoying a broad discretion, making the advertisement repository publicly available is, specifically for performers and for other natural persons, liable directly to affect those natural persons and, therefore, the applicant. While it is true that the interests of third parties are involved, the fact remains that the applicant has a responsibility towards its advertisers.
111 However, it must be observed that none of the four pleas put forward by the applicant to establish a prima facie case in the present application is based on a breach of the privacy of performers who advertise on the site operated by the applicant or refers to Article 7 of the Charter. Moreover, although the applicant explains the risks of harassment and discrimination faced by those persons on the basis of their identities, it does not specify whether the information referred to in Article 39(2)(b) and (c) of Regulation 2022/2065 is sufficient to identify them with sufficient precision, since that information does not appear to include their private addresses.
112 Furthermore, the mere fact of being listed in the advertisement repository as a natural person does not necessarily make it possible to identify the nature of the activities and the personal involvement of the natural person in them.
113 As regards, in the second place, the interest in the immediate application of the contested decision, it must be emphasised that Regulation 2022/2065 is a central element of the policy developed by the EU legislature in the digital sector. In the context of that policy, that regulation pursues objectives of great importance, since it seeks, as is apparent from recital 155 thereof, to contribute to the proper functioning of the internal market and to ensure a safe, predictable and trusted online environment in which the fundamental rights enshrined in the Charter are duly protected (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 155).
114 It is true that the Commission has not claimed, let alone demonstrated, that the grant of interim measures having the effect of excluding the application to Pornhub of Article 39 of Regulation 2022/2065 until judgment has been given on the substance of the case would be such as to impede definitively the achievement of those objectives.
115 It should nevertheless be noted that not applying certain obligations laid down by that regulation will lead to a delay, potentially for several years, in the full achievement of those objectives. Not applying those obligations will therefore give rise to a risk of potentially allowing an online environment which threatens the fundamental rights provided for in the Charter to persist and develop (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 157).
116 That finding cannot be called into question by the applicant’s argument that the objectives of Article 39 of Regulation 2022/2065 can be achieved by means of Article 40 of Regulation 2022/2065, which protects confidential information by not making the information referred to in Article 39 of that regulation available to the general public, in particular to competitors.
117 It is apparent from recital 95 of Regulation 2022/2065 that the EU legislature considered, following an assessment which it is not for the judge hearing the application for interim measures to call into question, that the advertising systems used by very large online platforms pose particular risks and require further public and regulatory supervision (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 160).
118 It cannot therefore be held, without going beyond the jurisdiction of the judge hearing the application for interim measures by ruling out assessments of the EU legislature which have not been shown to be incorrect, that the application to Pornhub only of the obligations imposed by Article 40 of Regulation 2022/2065 would be capable of satisfactorily achieving the objectives of Article 39 of that regulation (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 161).
119 It should also be noted that the grant of the interim measures sought would not lead solely to preserving the status quo. Suspension of the operation of the contested decision would be liable to alter the competitive situation in the digital sector in a manner which has not been provided for by the EU legislature, by making the applicant subject to a regime different from that applicable to other players in that sector which have, in view of the criteria defined by that legislature, characteristics comparable to that company (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 163).
120 In the light of all those factors, it must be held that the interests defended by the EU legislature prevail, in the present case, over the interests of the applicant, of performers and of other natural persons, with the result that the weighing up of interests leans in favour of dismissing the application for interim measures (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 164).
121 It follows from all the foregoing that the application for interim measures must be dismissed.
122 Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 2 July 2024.
|
V. Di Bucci |
M. van der Woude |
|
Registrar |
President |
* Language of the case: English.