ORDER OF THE PRESIDENT OF THE GENERAL COURT
13 February 2025 (*)
( 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‑486/24 R,
NKL Associates s.r.o., established in Prague (Czech Republic), represented by M. Pinto de Lemos Fermiano Rato and A. Kontosakou, lawyers,
applicant,
v
European Commission, represented by P.-J. Loewenthal and J. Szczodrowski, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By its application based on Articles 278 and 279 TFEU, the applicant, NKL Associates s.r.o., seeks the suspension of operation of Commission Decision C(2024) 4936 final of 10 July 2024 designating the online platform XNXX 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’), in so far as that decision requires applicant, in accordance with Article 39(1) 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), to make publicly available the repository referred to in paragraph 2 of that article (‘the advertisement repository’).
Background to the dispute and forms of order sought
2 The applicant is a company incorporated under Czech law which owns and operates the online platform XNXX, namely an adult content hosting service.
3 Article 33(4) of Regulation 2022/2065 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 stipulates 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, the advertisement repository 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 10 July 2024, by the contested decision, the Commission designated the online platform XNXX as a very large online platform in accordance with Article 33(4) of Regulation 2022/2065.
6 By application lodged at the General Court Registry on 20 September 2024, the applicant brought an action, inter alia, for partial 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 operation of the contested decision in so far as it requires the applicant to make the advertisement repository publicly available;
– order the Commission to pay the costs.
8 In its observations on the application for interim measures, which were lodged at the Court Registry on 30 October 2024, the Commission contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs of the proceedings.
Law
General considerations
9 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).
10 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’.
11 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).
12 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).
13 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.
14 In the circumstances of the present case, and without it being necessary to rule on the admissibility of the present application for interim measures, it is appropriate to examine first whether the condition relating to the establishment of a prima facie case is satisfied.
Prima facie case
15 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).
16 In order to demonstrate that the contested decision is, prima facie, unlawful, the applicant submits, in a single plea in law, that the obligation imposed by that decision to make the advertisement repository publicly available infringes the confidentiality of information, the advertisers’ right to private and family life, including the right to the protection of their personal data in the case of natural persons, and the applicant’s fundamental rights to conduct an economic activity and to property.
17 In the first place, the applicant submits that the information referred to in Article 39(2)(b) and (c) of Regulation 2022/2065, namely the information relating to the natural person on whose behalf the advertisement is presented and the information relating to the natural person who paid for the advertisement if different from the person on whose behalf the advertisement is presented, constitutes personal data and therefore claims that that provision is contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
18 In that context, the applicant claims that the obligation to publish the identity of natural persons, alone or in combination with the fact that they are advertisers of a given product, service or brand on the online platform XNXX, namely by mentioning their business activity and related sector, suffices to identify those natural persons or, at the very least, render them identifiable.
19 In the second place, the applicant submits that the information and data listed in Article 39(2)(d) to (g) of Regulation 2022/2065 as regards the content of a given advertisement, alone or in combination with the identity of the advertisers, constitute business secrets, since they are known only to a limited number of persons, their disclosure is liable to cause serious harm to the person who provided that information and data or to third parties, and the interests liable to be harmed by that disclosure are worthy of protection.
20 In the third place, the applicant submits that the obligation to publish an advertisement repository undermines the confidentiality of its information and that of its advertisers, in addition to its fundamental rights to conduct an economic activity and to property.
21 In that context, the applicant acknowledges that the fundamental rights at issue are not absolute rights. However, it claims that the obligation to publish the advertisement repository goes beyond what is appropriate and necessary to attain the objectives purportedly pursued by that regulation. In its submission, that obligation is disproportionate because there are less onerous alternatives. Furthermore, the disadvantages caused by complying with that obligation are disproportionate to the aims pursued.
22 The Commission disputes the applicant’s arguments.
23 In the first place, the Commission submits that the action for annulment is manifestly inadmissible. In its view, first, the partial annulment of an act of the institutions is possible only if the elements, the annulment of which is sought, can be severed from the remainder of the act and, second, a provision of an act of general application may form the subject of a plea of illegality based on Article 277 TFEU only where it constitutes the basis of that act or where it has a direct legal connection with that act. 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 the online platform XNXX. That decision merely designates that online platform as a very large online platform within the meaning of Article 33(1) of that regulation. Thus, that decision is not an implementing measure through which Article 39 of that regulation is applied to that online platform. The fact that the consequence of that decision is the applicability of the enhanced due diligence obligations laid down in Section 5 of Chapter III of that regulation does not render the plea of illegality, raised by the applicant against one of the provisions of the regulation in question, admissible. Admitting a plea of illegality in such circumstances would give rise to actio popularis, which goes beyond the purpose of Article 277 TFEU.
24 In the second place, the Commission submits that there is no prima facie unjustified interference with Articles 7 and 8 of the Charter. In its view, the applicant has failed to demonstrate prima facie that Article 39 of Regulation 2022/2065 unduly interfered with the rights of the applicant and its advertisers under those articles of the Charter, let alone that the obligation laid down by that article of that regulation was manifestly inappropriate or, as regards the protection of personal data, disproportionate.
25 In that context, the Commission contends, first of all, that, considering the scarce information disclosed and the context in which it was published, the affected natural persons would hardly be identifiable, and therefore the heightened standard of review for infringements of the right to protection of personal data would not be applicable. In its view, even if the applicant managed to show that the information disclosed pursuant to Article 39(2)(b) and (c) of Regulation 2022/2065 renders the natural persons concerned identifiable, the applicant has failed to establish that any interference with the rights enshrined in Articles 7 and 8 of the Charter was not prima facie justified. It submits that the alleged interference would indeed be legitimate and justified by the overriding general interest which that regulation seeks to protect.
26 In addition, the Commission submits that the information which Article 39(2) of Regulation 2022/2065 requires the applicant to make publicly available in the advertisement repository does not constitute confidential information, the disclosure of that information does not cause serious harm to the applicant or its advertising partners and the interests liable to be harmed are not worthy of protection. According to the Commission, the applicant is already required to disclose most of that information under other provisions of EU law. In addition, it maintains that information similar to that referred to in paragraph 2(d) and (g) of that article may be obtained, as regards the applicant, from commercial offerings. Next, it submits that the claims regarding the existence of urgency are unsubstantiated. Finally, it contends that the interests liable to be harmed are not worthy of protection.
27 Moreover, the Commission contends that any restriction to privacy is in any event justified. In the present case, the interference is provided for by law, namely by Article 39 of Regulation 2022/2065, which meets an objective of general interest recognised by the European Union. As regards compliance with the principle of proportionality, the Commission recalls that the EU legislature is afforded a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Consequently, in the present case, the legality of that provision cannot be assessed in the light of the potential existence of less intrusive measures, such as Article 26 of that regulation.
28 Finally, according to the Commission, any disclosure of personal data is in any event justified. In particular, the applicant has failed to demonstrate that, in the given context, namely that of the adult content industry, in which, inter alia, the use of pseudonyms is very common, the natural persons involved in the advertisements will be identified with sufficient precision and that the use of such data is thus covered under the right to protection of personal data.
29 In the third place, as regards the applicant’s claim that Article 39 of Regulation 2022/2065 interferes with its freedom to conduct a business under Article 16 of the Charter, the Commission observes that the applicant has failed to provide any evidence in support of its claim that compliance with Article 39 of that regulation would enable other market participants to gain an unfair and unearned competitive advantage and weaken the applicant’s market position.
30 The Commission recalls that, in any event, the freedom to conduct a business does not constitute an absolute prerogative. Rather, in its submission, that freedom must be viewed in relation to its function in society and must be weighed in the balance with other interests protected by the EU legal order, and the rights and freedoms of others. It submits that the interests which the EU legislature seeks to protect by means of the advertisement repository, aimed at ensuring greater transparency in online advertising, are of paramount importance to attaining the objectives of Regulation 2022/2065, namely a safe digital space for recipients of intermediary services, while ensuring that fundamental rights are respected.
31 In the present case, the Commission argues that any interference with the freedom to conduct a business is provided for by law, namely by Article 39 of Regulation 2022/2065. It further observes that the obligation imposed by that provision does not affect the essence of the applicant’s freedom to conduct a business, since the applicant may continue to operate the online platform XNXX in the European Union. That obligation meets an objective of general interest recognised by the European Union and is necessary and proportionate to meet that objective.
32 As regards the proportionality of any interference with the applicant’s freedom to conduct a business, the Commission submits that the applicant has not even attempted to demonstrate that the obligation imposed on it by Article 39 of Regulation 2022/2065 is manifestly inappropriate. According to the Commission, the applicant has also failed to demonstrate that that obligation is prima facie disproportionate.
33 In the fourth place, as regards the applicant’s claim that Article 39 of Regulation 2022/2065 unjustifiably interferes with its right to property referred to in Article 17 of the Charter, the Commission contends that an economic operator cannot claim such a right in a market share, even if that operator held it at the time before the introduction of a measure affecting that market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances. Consequently, according to the Commission, the applicant has not demonstrated a prima facie interference with that right.
34 In any event, the Commission recalls that the protection of the right to property enshrined in Article 17 of the Charter is not absolute. According to the Commission, any interference with the exercise of the right to property which the applicant holds over the information in question, even if established, is provided for by law. Likewise, that interference cannot be regarded as adversely affecting the essence of that right, since the applicant can continue to provide its services via the online platform XNXX in the European Union. Lastly, that interference meets an objective of general interest recognised by the EU legislature and is not manifestly inappropriate for attaining that objective. Consequently, the Commission submits that the applicant has not demonstrated that any interference with that provision was prima facie unjustified.
35 In that regard, in the first place, as regards the admissibility of the single 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.
36 In the second place, if the admissibility of the single 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 Articles 7, 8, 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).
37 In order to assess the condition relating to the establishment of a prima facie case, it is necessary from the outset to examine the single plea in so far as it relates to an alleged infringement of Articles 7, 8 and 16 of the Charter.
38 Article 7 of the Charter provides that everyone has the right to respect for his or her private and family life, home and communications.
39 Article 8(1) of the Charter provides that everyone has the right to protection of personal data concerning him or her.
40 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.
41 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, the commercial communications published on very large online platforms or the total number of recipients of the service reached.
42 Since the pieces of information referred to in paragraph 41 above, taken together, provide 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 7, 8 and 16 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).
43 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).
44 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).
45 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. 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.
46 Moreover, the equivalent nature, for the purposes of the application of Articles 7, 8 and 16 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).
47 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 offerings, it does not specify the costs and difficulties that access to that similar information would entail.
48 As regards the Commission’s arguments that the applicant was required to demonstrate that disclosure of the information at issue is liable to cause serious harm to it or to its advertising partners and that the interests liable to be harmed are not worthy of protection, those arguments are based on an interpretation of the relevant provisions of the Charter which 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).
49 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 to the applicant would not result in a limitation of the rights that it may derive from Articles 7, 8 and 16 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 106).
50 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 out 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).
51 Article 52(1) of the Charter provides that limitations may be imposed on the exercise of rights such as those set forth in Articles 7, 8 and 16 of the Charter as long as those 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).
52 The fundamental rights enshrined in Articles 7 and 8 of the Charter are not absolute rights, but must be considered in relation to their function in society (see judgment of 21 June 2022, Ligue des droits humains, C‑817/19, EU:C:2022:491, paragraph 112 and the case-law cited).
53 Moreover, the freedom to conduct a business enshrined in Article 16 of the Charter is not an absolute prerogative but must, first, be taken into account in relation to its function in society (judgment of 20 December 2017, Polkomtel, C‑277/16, EU:C:2017:989, paragraph 50) and, second, be balanced against the other interests protected by the legal order of the European Union (see, to that effect, judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 60), and the rights and freedoms of others (see, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 48).
54 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 7, 8 and 16 of the Charter or indeed the possible existence of alternative solutions that are less prejudicial to those rights (see, to that effect, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 109).
55 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).
56 It follows from the foregoing that, without prejudging the Court’s decision in the main action, it must be concluded that the single 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.
57 It must therefore be held that there is a prima facie case, in so far as the single plea appears, prima facie, not unfounded.
The condition relating to urgency
58 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 for 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).
59 It is in the light of those criteria that it must be examined whether the applicant has succeeded in demonstrating urgency.
60 In the present case, in the first place, the applicant submits that disclosure of the information listed in Article 39(2) of Regulation 2022/2065 will cause the applicant and its advertisers serious harm and risks affecting the competitive structure of the market.
61 In particular, first, the applicant claims that the information listed in Article 39(2) of Regulation 2022/2065 consists of extremely granular information and data which disclose its advertising strategies and those of its advertisers. It submits that that information is therefore of strategic commercial importance and value to the applicant and its advertisers and, for that reason, is also of significant commercial utility to its competitors and those of its advertisers. It considers that third parties may exploit such information to their own benefit and to the detriment of the applicant and its advertisers. It follows that making the advertisement repository publicly available would cause it serious harm.
62 Second, the applicant maintains that disclosure of the information listed in Article 39(2) of Regulation 2022/2065 will reveal not only the advertising strategies used by the applicant and its advertisers, but also the actual effectiveness of such strategies.
63 Third, the applicant submits that the manner in which the advertisement repository is to be assembled and published will further compound the harm caused.
64 Fourth, the applicant submits that the negative impact on its commercial interests will be further exacerbated by the provision of unfettered access to the information for an entire year after a given advertisement was last presented.
65 Fifth, the applicant also claims that the publication of the advertisement repository is likely to result in advertisers switching their business to smaller competitors who are not subject to the same onerous obligations, in order to protect the business secrecy of their advertising strategies. That is all the more likely in circumstances where the market in which it operates the online platform XNXX is highly fragmented and competitive, with millions of competitors. Were that to happen, the viability of that online platform would be at stake given that advertising revenue is its only source of revenue.
66 Furthermore, according to the applicant, the harm to its commercial interests and the impact on its revenue that would result from the publication of the advertisement repository is impossible to quantify solely in financial terms.
67 Sixth, according to the applicant, compliance with Article 39(1) of Regulation 2022/2065 will have an impact on the competitive structure of the market by altering market dynamics and increasing transparency as regards not only the commercial and advertising strategies employed by the applicant and its advertisers, but also their effectiveness and success. It submits that smaller competitors will gain insights into its strategies and those of its advertisers and, as a result, will be able to adjust their own strategies. In addition, smaller competitors who are not designated as very large platforms will attract advertisers who do not wish to see their data and information published in the advertisement repository. The applicant submits that, while it is impossible to calculate with any degree of accuracy the market share of the online platform XNXX, in such a highly fragmented market, the increased transparency in advertising strategies and the diversion of advertisers to smaller platforms can be expected to alter the market dynamics to its detriment.
68 Seventh, the applicant submits that the publication of the information referred to in Article 39(2)(b) and (c) of Regulation 2022/2065 will result in the disclosure of personal data of the advertisers, who are natural persons, for a lengthy period of time and in a systematic and comprehensive manner.
69 In the second place, the applicant claims that the disclosure of the information listed in Article 39(2) of Regulation 2022/2065 will cause irreparable harm to the applicant and its advertisers. According to the applicant, once the confidential information included in the advertisement repository has been disclosed, it cannot be ‘undislcosed’, even if the contested decision were to be ultimately annulled.
70 Further, the applicant claims that, unless the interim relief requested is granted, it will be placed in an impossible situation: either it makes the advertisement repository publicly available, and it will then inevitably provide unfettered access to the confidential information captured by it to an unlimited number of individuals, thereby harming its business and its advertisers, or it refrains from disclosing that repository, and it will then be in breach of its obligations under Regulation 2022/2065, which could give rise to a fine of up to 6% of its annual turnover. As regards those of the advertisers who are natural persons, it maintains that the disclosure of their personal data captured by that repository will cause them irreparable pecuniary and non-pecuniary harm.
71 The Commission disputes the applicant’s arguments.
72 In the first place, the Commission submits that, even if the applicant managed to show that the information at issue was confidential, it has failed to show that the damage it will suffer from disclosing that information under Article 39 of Regulation 2022/2065 was serious and irreparable.
73 First, the Commission maintains that it is impossible for the applicant to show that harm is serious and irreparable without specifying which confidential information is at issue or substantiating precisely why the confidentiality of that information would be breached due to the application of Article 39 of Regulation 2022/2065. However, the applicant has not provided any clarification in that respect in the present case.
74 Second, the Commission submits that the applicant entirely fails to provide any substantiation or evidence, let alone detailed documents, as to why such damage would be serious and irreparable.
75 In addition, the Commission recalls that, by virtue of various provisions of EU legislation, the applicant is already under the obligation to disclose most of the information listed in Article 39(2) of Regulation 2022/2065, while other information is commercially available.
76 Lastly, the Commission states that a whole range of information is not published in the advertisement repository.
77 Third, the Commission maintains that, in order for there to be urgency, the occurrence of the alleged damage must be foreseeable with a sufficient degree of probability. However, the damage alleged in the present case is based on a number of premisses which are purely speculative and based on future and uncertain events.
78 Fourth, the Commission submits that, in order to show urgency, the applicant must also demonstrate that the serious and irreparable damage it alleges is, first, likely and, second, imminent. Given the abstract and hypothetical nature of the applicant’s claims of serious harm, it is impossible, in the present case, to assess how likely it is that the disclosure of certain information would harm the applicant’s interests.
79 Fifth, the Commission contends that the damage relied on is mainly financial, since it essentially consists of the loss of advertising revenues.
80 In that context, the Commission states that the applicant tries to avoid the requirements relating to the quantification of the damage by attempting to present that damage as the type of damage that cannot be quantified. However, most of the applicant’s claims are in essence related to very specific and tangible characteristics of the market, such as the number of advertisers affected, the commercial advantage of obtaining access to some allegedly previously unknown data and information or the alleged loss of market share.
81 Lastly, the Commission asserts in particular that, as regards the applicant’s repeated claims that there is a risk that disclosure of confidential information would affect its viability due to the importance of advertising revenue as the only source of revenue of the online platform XNXX [confidential]. (1)
82 In that regard, in the first place, as regards the applicant’s argument that the information listed in Article 39(2) of Regulation 2022/2065 is extremely granular information and data which reveal the advertising strategies used by the applicant and its advertisers, it must be held that the applicant relies on harm resulting from the disclosure of allegedly confidential information.
83 It is apparent from the case-law that, when, first, the applicant for interim measures alleges that the information the publication of which 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 an 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).
84 Since it is apparent from paragraphs 41 to 55 above that the applicant’s claim that at least some of the information and data listed in Article 39(2) of Regulation 2022/2065 are 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.
85 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).
86 In the present case, it must be held that the obligations relating to the advertisement repository which provides information on advertisements on the applicant’s platform enable third parties to access important business secrets concerning the advertising strategies of the applicant’s advertising customers. Strategic information such as the duration of the campaign, its scope and the targeting parameters are revealed. That will enable the applicant’s competitors and advertising partners to draw market insights on a continuous basis to the applicant’s detriment.
87 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.
88 In the second place, as regards the applicant’s argument that it is impossible to quantify solely in financial terms the harm caused to its commercial interests and the impact on its revenue that would result from the publication of the advertisement repository, it must be held that it has not demonstrated to the requisite legal standard how making that repository available would cause it non-material damage.
89 By contrast, the applicant clearly relies on financial damage that stems from making that repository available, which results both from the reluctance of third-party sellers to publish advertisements on the online platform XNXX, which could ultimately lead some of those sellers to leave that platform, and from the acquisition, by the applicant’s competitors, of insights into strategies that could be implemented to improve their competitive position.
90 In the light of the variety of the precise commercial information which is meant to appear in the advertisement repository, 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 order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 131).
91 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).
92 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 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).
93 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).
94 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).
95 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).
96 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 the interests
97 According to settled case-law, it is clear that, in most interim proceedings, the decision to grant or to refuse the suspension of operation sought is likely to produce, to a certain extent, certain definitive effects and it is for the court hearing the application for interim relief to weigh up the risks attaching to each of the possible solutions. In practical terms, this involves, in particular, examining whether or not the interest of the applicant for interim measures in obtaining suspension of operation of the contested act outweighs the interest in that act’s immediate implementation. In that examination, it must be determined whether the possible annulment of that act by the judgment on the substance would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of its operation would be such as to impede the objectives pursued by the contested act in the event of the action in the main proceedings being dismissed (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 248 and the case-law cited).
98 It must therefore be examined whether the applicant’s interests in obtaining the immediate suspension of the contested decision outweigh the interests of the Commission in the immediate application of that decision.
99 As regards the interests pursued by the applicant, first, it claims that annulment of the contested decision would prove insufficient to reverse and undo the serious harm that would be caused to the applicant and its advertisers by the immediate implementation of the contested decision. According to the applicant, if the present application for interim measures were to be dismissed, the applicant would be under a duty to make the advertisement repository publicly available, thereby disclosing personal data of its advertisers, in combination with confidential, commercially sensitive information, within four months of the designation of the online platform XNXX as a very large online platform. It submits that, if thereafter it were to prevail in the main action, the situation that would have been created in the meantime would be impossible to reverse.
100 Second, the applicant states that suspension of operation of part of the contested decision would not prevent Article 39 of Regulation 2022/2065 from becoming fully effective vis-à-vis the applicant if, at a later stage, the main action were dismissed. That means that the partial suspension of operation of that decision would not impede the objectives pursued by that decision and by that regulation, because, were that action to be dismissed, it would be required to make the advertisement repository publicly available from that date.
101 Third, the applicant claims that it runs the risk that advertisers would be deterred from doing business with it and be diverted to smaller online platforms that are not subject to the enhanced due diligence obligations that apply to very large platforms, including those referred to in Article 39 of Regulation 2022/2065.
102 Fourth, the applicant submits that, since it challenges only the obligation to make the advertisement repository publicly available and not the establishment of that repository, a temporary partial suspension will not prevent the attainment of the objectives of supervision and research, given that the competent supervisory authorities and vetted researchers would still be able to gain access to that repository.
103 Fifth, the applicant claims that there is no indication in Regulation 2022/2065 that the EU legislature considered less onerous measures before adopting Article 39 of that regulation.
104 Sixth, with respect to the interests of its advertisers, the applicant submits that those interests do not relate just to the rights of business persons and companies who counted on their business secrets remaining confidential. In its view, they also relate to the rights to private and family life and the protection of personal data of those advertisers who are natural persons.
105 Lastly, with respect to the other interests at stake, the applicant submits that the public interest in gaining access to the information and in prosecuting the objectives of transparency and supervision purportedly pursued by Article 39 of Regulation 2022/2065 is not harmed by the preservation of the status quo for a limited period and cannot take precedence over its interests and those of its advertisers.
106 As regards the interests pursued by the Commission, as a preliminary point, the Commission observes that, where a legislative provision requires the disclosure of allegedly confidential information, as is the case with Article 39 of Regulation 2022/2065, ‘the status quo for all operators covered by that obligation is disclosure’.
107 In that context, the Commission submits, inter alia, that the overriding general interest in the immediate application of Article 39 of Regulation 2022/2065 outweighs the applicant’s particular interests.
108 In the first place, the Commission contends that the irreparable nature of the harm which the applicant claims to have suffered is not sufficient to conclude that the balance of interests lies with the applicant.
109 In particular, the Commission submits that the potential limitations that would affect the applicant’s activities as a result of the application of Article 39 of Regulation 2022/2065 to the online platform XNXX would have direct effects only on a limited part of those activities.
110 In the second place, the Commission adds that granting the suspension of operation sought will have immediate effects which should not be overlooked and which cannot be overshadowed by the fact that Article 39 of Regulation 2022/2065 could become fully effective vis-à-vis the applicant at a later stage if the main action for annulment were dismissed. Granting such suspension would impede the objectives pursued by the contested decision and by that regulation for the duration of the main proceedings, thus potentially allowing an online environment which threatens fundamental rights to persist or develop.
111 In addition, 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 and very large online search engines, in particular Article 39 of that regulation, which the EU legislature specifically decided to apply before the general entry into application of that regulation in the light of the systemic societal risks associated with those types of services, including online content providers such as the online platform XNXX, and their potential impact on a significant proportion of the European Union’s population.
112 In the third place, the Commission contends that granting access to the advertisement repository only to the competent supervisory authorities or to vetted researchers on a need-to-know basis would be insufficient to compensate for the lack of transparency.
113 In the fourth place, the Commission states that the systemic risks that the online platform XNXX would continue to pose for society and the inability to remedy any damage resulting from those risks if interim relief is granted and the applicant’s action for annulment is subsequently dismissed weigh heavily in favour of applying Article 39 of Regulation 2022/2065 to all providers of very large online platforms in a uniform manner as quickly as possible.
114 In the fifth place, the Commission contends that, since the applicant has not demonstrated that the information listed in Article 39(2) of Regulation 2022/2065 constitutes business secrets of third parties, it can draw no useful argument from the alleged legal interests that third parties might have harboured in relation to the non-disclosure.
115 In the sixth place, the Commission submits that the suspension of the obligation to make the advertisement repository publicly available exclusively in relation to the online platform XNXX would have an impact on the structure of the market and on the applicant’s position as regards its competitors.
116 In the first place, with regard to 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 advertisement repository 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).
117 It is true that the information published in the advertisement 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).
118 However, it follows from Article 39(1) of Regulation 2022/2065 that the advertisement 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).
119 It follows that, if the contested decision is annulled, the applicant will no longer be required to compile the advertisement repository aimed at ensuring greater transparency in online advertising in accordance with Article 39 of Regulation 2022/2065. Accordingly, it will no longer be required to keep online information relating to advertisements presented on the XNXX online platform 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).
120 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).
121 Furthermore, as regards the interest of third parties, business persons, companies and advertisers who are natural persons who relied on their information remaining protected from disclosure, it must be borne in mind that the EU legislature specifically provides, in Article 39(2)(b) and (c) of Regulation 2022/2065, that the advertisement repository contains at least information about the natural or legal person on whose behalf the advertisement is presented and about the natural or legal person who paid for the advertisement.
122 However, even if the EU legislature were to be recognised as enjoying a broad discretion, making the advertisement repository publicly available is certainly liable to affect directly the interests of third parties, business persons, companies and natural persons who relied on their information remaining protected from disclosure, and, therefore, to affect the applicant’s interests. While it is true that the interests of third parties are involved, the fact remains that the applicant has a responsibility towards them.
123 Moreover, as the applicant submits and as is apparent from paragraphs 82 to 96 above, if the interim measures sought are not granted, it is likely that the applicant will suffer serious and irreparable damage before any decision annulling the contested decision is made.
124 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).
125 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 damage, it has not demonstrated that the application to the online platform XNXX 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.
126 First, although the applicant claims that the viability of the online platform XNXX is at stake, given that advertising revenue is its only source of revenue and that its revenue is [confidential], its annual report for 2023 appears to prove that [confidential].
127 Second, as regards the applicant’s argument that the objectives pursued by Regulation 2022/2065 would not be attained due to the diversion of advertisers to smaller online platforms that are not subject to the obligations laid down in Article 39 of that regulation, it should be noted that that argument is based on uncertain assumptions and that it is not possible to predict whether advertisers will switch to such smaller online platforms.
128 Third, as regards the applicant’s argument that temporary partial suspension will not prevent the attainment of the supervision and research objectives, given that the competent supervisory authorities and vetted researchers would still be able to access the advertisement repository, it must be observed, as the Commission has done, that granting access to that repository only to the competent supervisory authorities or to vetted researchers on a need-to-know basis would be insufficient to compensate for the lack of transparency. That repository fulfils its purpose only if it is accessible to a wide audience. The accessibility of the information during the entire period of presentation until one year after the last presentation is needed to make developments in advertisement practices transparent and provide insights into past behaviour.
129 Fourth, as regards the applicant’s claim that any public interest would not be compromised by a preservation of the status quo, it should be noted that granting the interim measures sought would not merely maintain the status quo. The suspension of operation of the contested decision would have no effect either on the application of the general obligations laid down by Regulation 2022/2065 to all intermediary services or on the application of the obligations specific to very large online platforms to platforms other than the applicant which were designated as such by the Commission, pursuant to Article 33(4) of that regulation. It follows that such a suspension of operation 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).
130 In the second place, as regards 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).
131 In that context, it should be noted that not applying certain obligations laid down by Regulation 2022/2065 will lead to a delay, potentially for several years, in the full attainment 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).
132 That finding cannot be called into question by the applicant’s argument that the objectives of Article 39 of Regulation 2022/2065 can be attained in an equally effective manner by other means less prejudicial to its fundamental rights by means of Article 40(8) of that regulation, which protects confidential information by not making the information and data listed in Article 39(2) of that regulation available to the general public, in particular to competitors.
133 It is apparent from recitals 75 and 76 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 very large online platforms play an important role in the digital environment and that they may give rise to risks for society which differ, in terms of their scale and impact, from those attributable to smaller platforms (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 159).
134 In particular, it is apparent from recital 95 of Regulation 2022/2065 that the EU legislature considered that the advertising systems used by very large online platforms pose particular risks and require further public and regulatory scrutiny (order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 160).
135 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 the online platform XNXX only of the obligations imposed by Article 40 of Regulation 2022/2065 would be capable of satisfactorily attaining 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).
136 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, 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).
137 It follows from all of the foregoing that the application for interim measures must be dismissed.
138 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, 13 February 2025.
|
V. Di Bucci |
M. van der Woude |
|
Registrar |
President |
* Language of the case: English.
1 Confidential information redacted.