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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> WebGroup Czech Republic v Commission (Digital services - Application for suspension of operation of a measure - Prima facie case - Urgency - Very large online platforms - Order) [2024] EUECJ T-139/24_CO (12 July 2024) URL: https://www.bailii.org/eu/cases/EUECJ/2024/T13924_CO.html Cite as: [2024] EUECJ T-139/24_CO |
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ORDER OF THE PRESIDENT OF THE GENERAL COURT
12 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‑139/24 R,
WebGroup Czech Republic, a.s., 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 under Articles 278 and 279 TFEU, the applicant, WebGroup Czech Republic, a.s., seeks suspension of the operation of Commission Decision C(2023) 8850 final of 20 December 2023 designating XVideos 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 imposes on the applicant an obligation to make publicly available the repository provided for in Article 39(1) and (2) of that regulation.
Background to the dispute and forms of order sought by the parties
2 The applicant owns and operates the online platform XVideos, namely an adult content hosting service.
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 XVideos 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, in essence, that the President of the General Court should:
– order the suspension of the operation of the contested decision in so far as it imposes on the applicant an obligation to make publicly available the repository provided for in Article 39(1) and (2) 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.
Law
General considerations
11 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).
12 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’.
13 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).
14 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).
15 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.
16 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
17 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).
18 In order to show that the contested decision is, prima facie, unlawful, the applicant relies on a single plea in law in support of the action for annulment.
19 In support of the single plea in law, the applicant submits that the information and data listed in Article 39(2) of Regulation 2022/2065 are covered by business secrecy because they are known only to a limited number of persons, their disclosure is liable to cause serious harm to the person who has provided them or to third parties and the interests liable to be harmed by their disclosure are necessarily worthy of protection.
20 In particular, the applicant claims that most of the information and data listed in Article 39(2) of Regulation 2022/2065 are made available only to a limited number of persons. It claims that such information and data is not made available on a consolidated basis and organised in the comprehensive and systematic way required by the repository for any person other than the applicant.
21 Moreover, the applicant claims that the obligation to make the repository publicly available pursuant to Article 39(1) of Regulation 2022/2065 infringes its right to protection of the confidentiality of its business secrets and those of its advertisers, and its legitimate expectation that such information and data remain confidential. The protection of confidential information is a corollary of the right to respect for private and family life guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
22 In addition, according to the applicant, the obligation to make the repository publicly available pursuant to Article 39(1) of Regulation 2022/2065 infringes its right to conduct its business enshrined in Article 16 of the Charter. The disclosure of that repository prevents the applicant from operating its business freely by using the economic and financial resources available to it. It also submits that the obligation to make publicly available the information and data listed in Article 39(2) of that regulation, especially in a consolidated, comprehensive and systematic way and for a lengthy period, risks depriving the applicant of its financial resources. According to the applicant, that disclosure would enable other market participants to draw market insights regarding the applicant’s advertising strategy and activities, thereby giving them an unfair and unearned competitive advantage and weakening the applicant’s position. It observes that the loss of advertising revenue, which is the applicant’s sole source of revenue, would at best impede the free development of its business activity and at worst endanger its very existence, thereby violating the very essence of its freedom to conduct business.
23 In addition, the applicant submits that the obligation to make the repository publicly available pursuant to Article 39(1) of Regulation 2022/2065 breaches its right to property, enshrined in Article 17 of the Charter. According to the applicant, its property rights include its clientele and the income it derives from operating the online platform XVideos. It submits that compliance with the disclosure requirements laid down in Article 39(1) and (2) of that regulation would infringe its right to property. Furthermore, it argues that such disclosure risks causing it to lose the clientele that it had managed to build up through its own work and, as a result, advertising revenue. It adds that the conditions of its professional activities would be radically affected, in so far as that disclosure would enable its competitors and those of its advertisers to obtain market insights about its advertising strategy and afford them an unjust competitive advantage. According to the applicant, the scope of its activities would inevitably be subsequently reduced due to the loss of market share, as would the value of its clientele and more generally of its business.
24 Last, the applicant submits that the obligation to make the repository publicly available pursuant to Article 39(1) of Regulation 2022/2065 infringes the principle of proportionality and as such unlawfully restricts not only the applicant’s right to confidentiality and that of its advertisers, but also the applicant’s freedom to conduct its business and its right to property, in so far as the obligation at issue goes beyond what is appropriate and necessary to achieve the objectives pursued by that regulation. That obligation is also disproportionate because less onerous alternatives exist that are capable of achieving those objectives. Last, the disadvantages caused by the need to comply with the obligation in question are disproportionate to those objectives.
25 The Commission contends that the applicant has not shown that the single plea has a reasonable chance of succeeding.
26 In the first place, the Commission submits that the single plea is manifestly inadmissible. According to the Commission, a provision of an act of general application may form the subject of a plea of illegality based on Article 277 TFEU only where that provision constitutes the basis of that act or has a direct legal connection with that act. In the present case, 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 XVideos. That decision merely designates that online platform as a very large online platform within the meaning of Article 33(1) of that regulation. Therefore, that decision is not an implementing measure through which Article 39 of that regulation is applied. The fact that the consequence of the decision in question is the applicability of the enhanced due diligence obligations laid down in Section 5 of Chapter III of that regulation is not sufficient to render admissible the plea of illegality raised by the applicant against one of those provisions. Admitting a plea of illegality in such circumstances would give rise to actio popularis, which goes beyond the purpose of Article 277 TFEU.
27 In the second place, the Commission submits that there is no prima facie unjustified interference with Article 7 of the Charter. According to the Commission, the applicant has not demonstrated that the information it is required to make publicly available pursuant to Article 39 of Regulation 2022/2065 is prima facie confidential, that the disclosure of that information would cause serious harm to it or its advertising partners and that the interests liable to be harmed are 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 that regulation can be obtained, as far as the applicant is concerned, from commercial offers.
28 In that context, the Commission claims that any restriction on 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. It does not affect the essence of the right in question, since no personal data are involved in the disclosure. That interference also meets an objective of general interest recognised by the European Union.
29 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 Article 39 of Regulation 2022/2065 cannot be assessed in the light of the potential existence of less intrusive measures, such as Article 26 of that regulation, as suggested by the applicant.
30 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.
31 In any event, the Commission recalls that the freedom to conduct a business does not constitute an absolute prerogative. The interests which the EU legislature seeks to protect by means of the repository, aimed at ensuring greater transparency in online advertising, are of paramount importance to achieve the objectives of Regulation 2022/2065, namely to ensure a safe digital space for recipients of intermediary services, while ensuring that fundamental rights are respected.
32 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 XVideos 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.
33 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. In any event, according to the Commission, the applicant has also failed to demonstrate that that obligation is prima facie disproportionate.
34 In the fourth place, as regards the applicant’s claim that Article 39 of Regulation 2022/2065 unjustifiably interferes with its right to property under 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.
35 In any event, the Commission recalls that the protection of the right to property enshrined in Article 17 of the Charter is not absolute. In the present case, any interference with the exercise of that right which the applicant holds over the information in question, even if established, is provided for by law. Nor can that interference be regarded as adversely affecting the essence of that right, since the applicant can continue to operate the online platform XVideos in the European Union. Last, as observed in relation to the alleged interference with Articles 7 and 16 of the Charter, any interference meets an objective of general interest recognised by the EU legislature and is not manifestly inappropriate to achieve that objective. Consequently, the Commission submits that the applicant has not demonstrated that any infringement of Article 17 of the Charter due to Article 39 of Regulation 2022/2065 is prima facie unjustified.
36 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.
37 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, 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).
38 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 the applicant’s right to confidentiality and that of its advertisers and of Articles 16 and 17 of the Charter.
39 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.
40 Article 17 of the Charter provides that everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.
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, commercial communications published on very large online platforms or the total number of recipients of the service reached.
42 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).
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 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).
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 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.
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 its advertising partners and that the interests liable to be harmed are 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 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 (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 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 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).
52 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, order of 27 March 2024, Commission v Amazon Services Europe, C‑639/23 P(R), EU:C:2024:277, paragraph 109).
53 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).
54 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.
55 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 of urgency
56 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).
57 It is in the light of those criteria that it must be examined whether the applicant has succeeded in demonstrating urgency.
58 In the present case, in order to demonstrate the serious and irreparable nature of the damage alleged, in the first place, the applicant submits that the disclosure of the information and data listed in Article 39(2) of Regulation 2022/2065 would cause serious harm to it and to its advertisers and risks affecting the competitive structure of the market.
59 In particular, first, the applicant submits that disclosure to the general public of the information and data listed in Article 39(2) of Regulation 2022/2065 is likely to cause serious damage to the applicant in so far as such disclosure is not only of strategic commercial importance, but is also of significant utility to other market participants which are liable to exploit that information to their own benefit and to the detriment of the applicant.
60 Second, the applicant claims that disclosure to the general public of the information and data listed in Article 39(2) of Regulation 2022/2065 would reveal not only the advertising strategies employed by the applicant and its customers, namely advertisers, but also the actual effectiveness of such strategies.
61 Third, the applicant submits that access to the repository provided for in Article 39 of Regulation 2022/2065 would allow any interested person to reconstruct the way in which the applicant’s business and advertising activities are organised and to engage in the systematic gathering of business intelligence that would reveal the applicant’s strategies and those of its advertisers.
62 Fourth, the applicant submits that allowing access to the repository provided for in Article 39 of Regulation 2022/2065 for such a lengthy period of time will give competitors ample opportunity to examine carefully the valuable information contained therein, analyse it, correlate it to ongoing market developments and revisit it at any time. Those competitors are thus in a position continuously to draw insights from, and study the effectiveness of, the strategies employed by the applicant and by its advertisers.
63 Fifth, according to the applicant, compliance with the obligations imposed by Article 39 of Regulation 2022/2065 is likely to result in advertisers switching their business to smaller competitors who are not subject to the same onerous obligations. That likelihood is all the greater given that the market for adult content hosting services is highly fragmented and competitive, with millions of competitors. Were that to happen, the viability of the online platform XVideos would be at stake since advertising revenue is its only source of revenue.
64 In particular, the applicant submits that the damage to its commercial interests and the impact on its income that would result from the disclosure of the information and data listed in Article 39(2) of Regulation 2022/2065 is impossible to quantify solely in financial terms. According to the applicant, while the risk of use of the confidential information in question and of the loss of the strategic advantages that the applicant and its advertisers enjoyed due to the applicant’s investment and experience is foreseeable with a sufficient degree of certainty, it cannot be quantified. As a general rule, confidential information is by nature intangible and the quantification of the amount of damage that might result from its use, in the form of lost earnings, is inherently very difficult to undertake, if not impossible.
65 Sixth, the applicant submits that compliance with Article 39(1) of Regulation 2022/2065 can be expected to impact the competitive structure of the market by altering market dynamics and increasing transparency not only with regard to the commercial and advertising strategies employed by the applicant and its advertisers but also with regard to the effectiveness and success of those strategies.
66 In the second place, the applicant submits that the disclosure of the information and data 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 and commercially sensitive information included in the repository that must be made publicly available in accordance with that article is disclosed, it cannot be undisclosed.
67 In addition, the applicant submits that, unless the contested decision is suspended in so far as it imposes on the applicant the obligation to make the repository publicly available in accordance with Article 39(1) and (2) of Regulation 2022/2065, it will be placed in an impossible situation. On the one hand, if it makes the repository publicly available, the applicant will inevitably provide unfettered access to its confidential and commercially sensitive information to an unlimited number of individuals, thereby harming its business and its advertisers. On the other hand, if it refrains from doing so, it will be in breach of its obligations under that regulation and will face a fine.
68 The Commission disputes the applicant’s arguments.
69 In the first place, the Commission contends that it is impossible for the applicant to show that harm is serious and irreparable 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.
70 In the second place, according to the Commission, the applicant’s claims that confidential information could be used by its competitors to target the advertisers of the online platform XVideos are vague and unconvincing. The applicant merely claims that disclosure of that information will have serious economic consequences for its business, because its business model is centred around advertising. It entirely fails to provide any substantiation or evidence, let alone the detailed documents required by the case-law, as to why such damage would be serious and irreparable.
71 In the third place, the Commission emphasises that, in order for there to be urgency, the occurrence of the alleged damage must be foreseeable with a sufficient degree of probability. 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.
72 Thus, the applicant suggests that advertisers would switch to smaller competitors that are not subject to the same obligations, implying that this would affect its viability, but it does not demonstrate, as the case-law requires it to do, the existence of obstacles of a structural or legal nature preventing it from regaining a significant proportion of its market share.
73 In the fourth place, the Commission submits that, in order to show that the condition relating to urgency is satisfied, the applicant must also demonstrate that the serious and irreparable damage it alleges is both likely and imminent.
74 In the fifth place, the Commission maintains that the alleged damage is purely financial, since it essentially consists of the loss of advertising revenues.
75 In that context, the Commission states that the applicant tries to avoid the requirements relating to the quantification of the damage at issue 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.
76 In that regard, in the first place, as regards the applicant’s argument that the viability of the online platform XVideos would be at stake since advertising revenue is its only source of revenue, it must be stated that the alleged damage is purely financial.
77 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).
78 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).
79 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).
80 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 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).
81 In the present case, it must be stated that, although the applicant claims that the viability of the online platform XVideos is at stake since advertising revenue is its only source of revenue, it provides no figures regarding the financial situation of the group 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 impact of that loss on its financial viability.
82 In the second place, the application for interim measures also lacks details on the alleged loss of revenues or market share for the applicant.
83 Although the applicant submits that compliance with Article 39(1) of Regulation 2022/2065 is likely to affect the competitive structure of the market, it does not refer, in the 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 the repository provided for in that article online as a result of the annulment of the contested decision.
84 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 being made publicly available as required by Article 39 of Regulation 2022/2065. 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.
85 As regards, in the third place, the applicant’s argument that the damage caused by the application of Article 39 of Regulation 2022/2065 is irreparable because, once the confidential and commercially sensitive information included in the repository that must be made publicly available pursuant to that article is disclosed, it cannot be undisclosed, 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).
86 Since it is apparent from paragraphs 41 to 53 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.
87 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).
88 In the present case, the applicant relies on financial damage, albeit not quantified, that stems from making a repository of all of the advertising partners of the online platform XVideos publicly available, which would create a serious risk of deterring existing and potential advertisers from advertising on that platform and would give competitors of that platform an unfair and unearned competitive advantage and, at the same time, weaken the market position of the platform in question.
89 In the light of the variety of the precise commercial information which is meant to appear in the repository that must be made publicly available pursuant to 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).
90 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.
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 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).
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 interests
97 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).
98 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).
99 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.
100 As regards the interests pursued by the applicant, first, it claims that the annulment of the contested decision would be insufficient to reverse and make good the serious and irreparable harm that the immediate implementation of that decision would cause to it. According to the applicant, if the present application for interim measures were to be dismissed, the applicant would be required to make publicly available the repository provided for in Article 39 of Regulation 2022/2065 and would thereby be obliged to disclose confidential and commercially sensitive information within four months from its designation as a very large online platform. If, thereafter, the applicant were to succeed in its action against that decision, the situation that would have been created in the meantime would be impossible to reverse. The serious damage caused by that disclosure would be irreparable.
101 Second, the applicant states that suspension of the 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 for annulment is dismissed. In other words, if the present application for interim measures were to be granted, that would not impede the objectives pursued by that decision and by Regulation 2022/2065.
102 Third, the applicant submits that, given that it challenges only the obligation to make a repository publicly available under Article 39(1) of Regulation 2022/2065, the suspension of the operation of part of the contested decision would not prevent the attainment of the objectives of supervision and research identified in recital 95 of that regulation. The competent supervisory authorities and vetted researchers within the meaning of that regulation would still be able to gain access to that repository on a need-to-know basis.
103 Fourth, the applicant claims that the public interest in gaining access to the information and data listed in Article 39(2) of Regulation 2022/2065 and the pursuit of the objectives of transparency purportedly pursued by that regulation would not be affected by a preservation of the status quo for a limited period.
104 Fifth, the applicant submits that account must be taken of additional interests of third parties that should ultimately tip the balance in favour of the applicant. Those are the legal interests of businesspersons and companies who have relied on their business secrets remaining protected from disclosure.
105 Sixth, the applicant states, in its response to the measure of organisation of procedure referred to in paragraph 10 above, that the interest in the immediate and full implementation of Regulation 2022/2065 must be weighed against the risk that disclosure of the information in a repository will affect the totality of the revenue of the online platform in question and may ultimately threaten its viability. According to the applicant, even if it were to succeed in the main proceedings, the annulment of the contested decision, in so far as it imposes on the applicant the obligation to make that repository publicly available, might be ineffective because, by that point in time, the online platform XVideos may have already ceased to exist.
106 As regards the interests pursued by the Commission, first, the Commission submits, in essence, that the applicant has in no way demonstrated that it will suffer irreparable damage once the obligations stemming from Article 39 of Regulation 2022/2065 start to apply to it.
107 Second, the Commission argues that suspension 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.
108 In addition, the Commission contends that the unprecedented speed, namely 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 the online platform XVideos, and their potential impact on a significant proportion of the European Union’s population.
109 Third, the Commission submits that granting access to the repository provided for in Article 39 of Regulation 2022/2065 only to competent supervisory authorities or vetted researchers on a need-to-know basis would be insufficient to compensate for the lack of transparency.
110 Fourth, the Commission states that the systemic risks that the online platform XVideos 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 uniformly and as quickly as possible.
111 Fifth, the Commission contends that, since the applicant has not demonstrated that the information in question constitutes business secrets of third parties, it can draw no useful argument from the alleged legal interests that third parties might have had in the information not being disclosed. On the contrary, business users may also have a commercial interest in accessing general information on advertisements and, in particular, on the period during which the advertisement was presented and how many users it reached. By consulting the repository that must be made publicly available pursuant to Article 39 of Regulation 2022/2065, a legitimate business user will be able to identify fraud or scams consisting in offering goods or services based on their brand or product, or intellectual property infringements.
112 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).
113 It is true that the information published in the repository provided for in Article 39 of Regulation 2022/2065 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).
114 However, it follows from Article 39(1) of Regulation 2022/2065 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).
115 It follows that, if the contested decision is annulled, the applicant will no longer be required to compile the 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 online platform XVideos 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).
116 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).
117 That being so, as the applicant submits and as is apparent from paragraphs 85 to 96 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.
118 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).
119 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 the online platform XVideos 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.
120 First, as stated in paragraph 81 above, the applicant has not shown that it 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.
121 In addition, it is apparent from paragraphs 82 to 84 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 the online platform XVideos 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.
122 Second, as regards the applicant’s argument that account must be taken of additional interests of third parties, businesspersons and companies who have relied on their business secrets remaining protected from disclosure, which should ultimately tip the balance in favour of the applicant, 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 repository in question 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.
123 Even if the EU legislature were to be recognised as enjoying a broad discretion, making the repository provided for in Article 39 of Regulation 2022/2065 publicly available is liable directly to affect the interests of third parties, businesspersons and companies 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.
124 However, it must be observed that the applicant does not specify whether the information referred to in Article 39(2)(b) and (c) of Regulation 2022/2065 is sufficient to identify those third parties, those businesspersons and those companies with sufficient precision.
125 Furthermore, it must be observed that the single plea put forward by the applicant to establish a prima facie case in the present application for interim measures is not based on a breach of the privacy of third parties, businesspersons or companies. The applicant relies on Article 7 of the Charter only in support of its arguments based on the need to preserve the confidentiality of its business secrets.
126 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).
127 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 the online platform XVideos 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.
128 It should nevertheless 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 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).
129 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 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.
130 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).
131 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 XVideos 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).
132 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).
133 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 and of third parties, 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).
134 It follows from all the foregoing that the application for interim measures must be dismissed.
135 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, 12 July 2024.
V. Di Bucci | M. van der Woude |
Registrar | President |
* Language of the case: English.
© European Union
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