ORDER OF THE VICE-PRESIDENT OF THE COURT

21 March 2025 (*)

( Appeal – Interim relief – Foreign subsidies – Inspections within the European Union – Regulation (EU) 2022/2560 – Accessibility of data requested by the European Commission – Application for suspension of operation of a measure – Urgency )

In Case C‑720/24 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 22 October 2024,

Nuctech Warsaw Company Limited sp. z o.o., established in Warsaw (Poland),

InsTech Netherlands BV, formerly Nuctech Netherlands BV, established in Rotterdam (Netherlands),

represented by J.‑F. Bellis and S. Ross, avocats,

appellants,

the other party to the proceedings being:

European Commission, represented by A.‑L. Delbac, M. Farley and L. Flynn, acting as Agents,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By their appeal, the appellants, Nuctech Warsaw Company Limited sp. z o.o. and InsTech Netherlands BV (formerly Nuctech Netherlands BV), seek to have set aside the order of the President of the General Court of the European Union of 12 August 2024, Nuctech Warsaw Company Limited and Nuctech Netherlands v Commission (T‑284/24 R, EU:T:2024:564; ‘the order under appeal’), by which the President of the General Court dismissed their application for interim measures that had requested the suspension of operation of the decision of the European Commission of 16 April 2024 requiring an undertaking active in the threat detection systems sector to submit to inspections pursuant to Article 14(3) of Regulation (EU) 2022/2560 (Case FS.100068 – MARE) (‘the decision at issue’) and of any subsequent acts or requests based on that decision.

 Legal context

2        Article 14 of Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market (OJ 2022 L 330, p. 1), entitled ‘Inspections within the Union’, provides, in paragraphs 2 and 3 thereof:

‘2.      Where the Commission undertakes such an inspection, the officials authorised by the Commission to conduct an inspection shall be empowered to:

…

(b)      examine books and other business records, irrespective of the medium on which they are stored, access any information which is accessible to the entity subject to the inspection and take, or request copies or extracts from, those books or records;

…

3.      The undertaking or association of undertakings shall submit to inspections ordered by decision of the Commission. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a Commission decision:

…

(c)      referring to the possibility to impose fines or periodic penalty payments provided for in Article 17; and

…’

 Background to the dispute

3        The background to the dispute is set out in paragraphs 2 to 9 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.

4        The appellants are undertakings established in Poland and in the Netherlands, respectively. They are wholly owned subsidiaries of Nuctech Hong Kong Co. Ltd, a company registered in Hong Kong (China). Nuctech Hong Kong is ultimately controlled by Tsinghua Tongfang Co. Limited, a company registered in China and listed on the Shanghai Stock Exchange (China). Tsinghua Tongfang also controls Tongfang Nuctech Technology Co. Ltd. (‘Nuctech Technology’), a company registered in China.

5        The appellants are active in the development, production and supply of security inspection equipment and after-sale services of that equipment.

6        On 16 April 2024, the European Commission adopted the decision at issue, ordering an inspection pursuant to Article 14(3) of Regulation 2022/2560.

7        Between 23 and 26 April 2024, the Commission carried out an inspection at the appellants’ premises, during which it requested the content of the mailboxes of a number of the appellants’ employees and officers (‘the electronic correspondence at issue’).

8        The appellants refused on the ground that that correspondence was stored not on local servers but on their parent company’s servers, established in China.

9        The Commission requested the appellants to place a legal hold on the mailboxes of the employees whose data are on the servers located in China.

10      By email of 8 May 2024, the Commission confirmed its requests for access to the electronic correspondence at issue. It is also apparent from the appellants’ appeal and from the Commission’s response that, on 23 May 2024 and 4 July 2024, the Commission again confirmed its wish to access that correspondence.

 The proceedings before the General Court and the order under appeal

11      By application lodged at the Registry of the General Court on 29 May 2024, Nuctech Warsaw Company Limited and Nuctech Netherlands (now InsTech Netherlands) brought an action for the annulment of the decision at issue and of any subsequent acts or requests of the Commission, including the requests for access to the electronic correspondence at issue and the legal hold requests made in that respect.

12      By separate document lodged at the Court Registry on 29 May 2024, those undertakings brought an application for interim measures seeking the suspension of operation of that decision and of those various acts and requests.

13      By the order under appeal, the President of the General Court dismissed that application.

14      After finding, in paragraphs 49 and 75 of the order under appeal, that the appellants had not established, to the requisite legal standard, the existence of a prima facie case, or demonstrated that the condition relating to urgency was satisfied, the General Court also held, in paragraph 87 of that order, that, in weighing up the interests, the interest defended by the Commission had to prevail over the appellants’ interest.

 Forms of order sought

15      The appellants claim that the Court should:

–        set aside the order under appeal;

–        suspend the decision at issue and the Commission’s requests to produce the electronic correspondence at issue as well as maintain the legal hold on it, made on 8 May 2024, 23 May 2024 and 4 July 2024, and

–        order the Commission to pay the costs.

16      The Commission contends that the Court should:

–        dismiss the appeal, and

–        order the appellants to pay the costs.

 The appeal

17      In support of their appeal, the appellants raise three grounds of appeal alleging, first, errors of law when assessing the condition relating to a prima facie case, second, errors of law when assessing the condition relating to urgency and, third, errors of law when performing the weighing up of interests involved.

18      As a preliminary point, it is necessary to examine the arguments raised by the Commission in its response, relating to the inadmissibility of the appeal and the inadmissibility or ineffectiveness of the suspension request, set out in point 2 of the form of order sought in that appeal.

19      In the first place, the Commission appears to argue, in paragraphs 18 to 21 of its response, that if the appeal is to be interpreted as meaning that the appellants are seeking the setting aside of the whole order under appeal and the suspension of operation of the decision at issue, it should be dismissed as inadmissible on the ground that it does not meet the requirements of Article 168(1)(d) of the Rules of Procedure of the Court of Justice, since, according to the Commission, the appellants have not put forward any argument relating to the appraisal of that decision by the President of the General Court in the order under appeal. The Commission states, in that regard, that the legality of the decision at issue cannot be called into question by arguments relating to the subsequent requests addressed to the appellants, dated 8 May, 23 May and 24 July 2024, which, moreover, the Commission argues, constitute purely confirmatory measures.

20      In that regard, it should be recalled that, under Article 168(1)(d) of the Rules of Procedure, an appeal must contain the pleas in law and arguments relied on and a summary of those pleas in law. The present appeal appears to be sufficiently clear and precise in itself to enable the Commission to prepare its observations and the judge hearing the application to rule on it. Consequently, that argument must be rejected.

21      In the second place, the Commission contends that the suspension request set out in point 2 of the form of order sought in the appeal is inadmissible or ineffective, on the ground that it does not refer to all the requests for access to the electronic correspondence at issue which were sent by the Commission and which were the subject of the action for annulment before the General Court. The Commission submits in particular that that suspension request does not relate to the requests for access to that correspondence which it sent on 23 and 24 April 2024, respectively, to InsTech Netherlands and to Nuctech Warsaw Company Limited.

22      In that regard, even though, as the Commission states, the appellants are not seeking, in point 2 of the form of order sought, the suspension of all of the requests for access to the electronic correspondence at issue that it sent and that were the subject of that action for annulment, that finding has no bearing on the admissibility of the appeal. It would, by contrast, be relevant in the event that the Court of Justice sets aside the order under appeal, and, as the case may be, itself disposes of the case.

23      Furthermore, it should be stated that, in point 1 of the form of order sought by the appellants, they have indeed claimed that the order under appeal should be set aside.

24      Consequently, the appeal is admissible.

 The second ground of appeal, alleging errors of law when assessing the condition relating to urgency

25      The second ground of appeal, relating to the condition of urgency, which it is appropriate to examine first, consists of two parts.

 First part of the second ground of appeal

–       Arguments

26      By the first part of their second ground of appeal, the appellants submit that the order under appeal is vitiated by an error of law inasmuch as the President of the General Court treated, in paragraph 71 of that order, the administrative penalties of a pecuniary nature which could be imposed by the public authorities of a third country, in the present case China, for infringing that country’s law in the event of the electronic correspondence at issue being sent to the Commission, as damage of a purely financial nature.

27      The appellants refer to the principles stemming from the order of the Vice-President of the Court of 11 April 2024, Lagardère v Commission (C‑89/24 P(R), EU:C:2024:312, paragraphs 75, 77 and 78), in order to argue that those penalties expose them to serious and irreparable damage. According to the appellants, by analogy with what the General Court held, in the field of competition law, in paragraph 95 of the judgment of 12 April 2013, CISAC v Commission (T‑442/08, EU:T:2013:188), the fact that those penalties are imposed by public authorities attaches stigma to them, in the same way as criminal convictions.

28      The appellants further state that, in any event, the administrative penalties that could be imposed in the present case for infringing Chinese law are not only pecuniary penalties, but could consist in a business suspension or a licence revocation. In addition, the individuals directly liable for those infringements could also be subject to financial and criminal sanctions.

29      The Commission contends that that line of argument is unfounded.

–       Assessment

30      According to settled case-law of the Court of Justice, the purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Court. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking the interim relief. It is for that party to prove that it cannot await for the outcome of the main proceedings without suffering such damage (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 40).

31      While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the Vice-President of the Court of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 75 and the case-law cited).

32      Furthermore, the court hearing the application for interim relief must have concrete and precise indications, supported by detailed documents which demonstrate the situation of the party seeking the interim measures and enable the precise effects which would probably follow if the measures sought were not granted to be examined. That party is therefore required to provide, with supporting documentation, evidence and information allowing an accurate overall picture of its financial situation to be established (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), EU:C:2021:631, paragraph 41 and the case-law cited).

33      Those requirements apply in particular where the damage alleged is damage of a pecuniary nature, which cannot, other 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 prevailed before he or she suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P (R), EU:C:2021:631, paragraph 42 and the case-law cited).

34      In the first place, it should be pointed out that, where the harm relied upon is of a financial nature, the interim measures sought will be justified if it appears that, without such measures, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be substantially affected in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (order of the Vice-President of the Court of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 54).

35      In the present case, as regards the administrative penalties of a pecuniary nature that would, it is alleged, be imposed by the Chinese authorities in the event of the electronic correspondence at issue being sent to the Commission, it must be stated, first of all, that the appellants have not asserted that the President of the General Court made an error of assessment in finding, in paragraphs 67 and 68 of the order under appeal, that they had not established or even claimed that they were in a position that would imperil their financial viability and that they had not provided any figures regarding the financial situation of the group of companies to which they belong, from accounts or otherwise, capable of substantiating the existence of serious and irreparable damage.

36      Next, as regards the appellants’ argument that there is stigma attached to such penalties, which, according to them, warrants the application of the principles stemming from the order of the Vice-President of the Court of 11 April 2024, Lagardère v Commission (C‑89/24 P(R), EU:C:2024:312), it must be recalled that, in paragraphs 75 and 77 of that order, the Vice-President of the Court of Justice stated that damage resulting from the fact that an undertaking is compelled to adopt conduct which could, in all likelihood, justify its criminal liability and therefore make it subject to criminal sanctions, had to be regarded as serious, in particular having regard to the stigma attached to a criminal conviction and the breach of the bond of trust with the company officers and the employees which could arise, in that case, from the commission of criminal offences against those persons.

37      Administrative penalties cannot be treated in the same way as such criminal penalties on the ground that they would be imposed by the administrative authorities of a third country. It follows that that fact is not such as to warrant the application by analogy of the principles stemming from the order of the Vice-President of the Court of 11 April 2024, Lagardère v Commission (C‑89/24 P(R), EU:C:2024:312), to the appellants. The fact, referred to by them, that the General Court was able to state, in paragraph 95 of the judgment of 12 April 2013, CISAC v Commission (T‑442/08, EU:T:2013:188), that a Commission decision finding an infringement of EU competition law constitutes ‘non-negligible stigma’ vis-à-vis the persons concerned does not appear to be such as to call this analysis into question.

38      Consequently, by holding, in paragraph 71 of the order under appeal, that the financial damage resulting from the imposition of administrative penalties of a pecuniary nature by the Chinese authorities cannot, otherwise than in exceptional circumstances, be regarded as irreparable, the President of the General Court did not vitiate that order by an error of law.

39      In the second place, the appellants further claim, ‘for the sake of completeness’, that the administrative penalties that could be imposed by the Chinese authorities in the event of the electronic correspondence at issue being sent to the Commission, in breach of Chinese law, could also be non-pecuniary in nature, such as a business suspension or a licence revocation, and that penalties could be imposed on the individuals directly concerned.

40      In that regard, it is important to state, as a preliminary point, that the appellants merely refer to the general description of penalties set out in paragraph 54(a) to (c) of their application for interim measures and in a legal opinion from a law firm, annexed to that application and to the present appeal.

41      In addition, and above all, as regards the administrative penalties consisting in a business suspension or a licence revocation, the appellants have not provided any information making it possible to show that the harm that could result from such administrative penalties liable to be adopted by the Chinese authorities would be such as to imperil their financial viability and could not be remedied by an action for damages, in accordance with the requirements of the case-law referred to in paragraphs 32 and 33 above.

42      It follows that the appellants have not established that the President of the General Court made an error of assessment by failing to find, in the order under appeal, that, at least in respect of administrative penalties consisting in a business suspension or a licence revocation, the damage liable to be sustained was serious and irreparable.

43      As for the criminal penalties, described in the legal opinion referred to in paragraph 40 above, they would be imposed, it is argued, on the individuals regarded as directly liable for the infringement of Article 28 of the Chinese Law on Safeguarding State Secrets, which prohibits data containing State secrets from being sent to the Commission without the approval of the competent authority.

44      However, the appellants have not put forward any argument making it possible to establish that the President of the General Court erred in law by holding, in paragraph 73 of the order under appeal, that they had failed to demonstrate that the electronic correspondence at issue actually contained State secrets or that they or Nuctech Technology had taken the necessary steps to obtain the required authorisation for its disclosure under that law and that that request had been refused.

45      It is apparent, by contrast, from paragraph 50 of the appeal that the appellants claim that the question whether or not they requested, under the Chinese Law on Safeguarding State Secrets, that the electronic correspondence at issue be communicated is ‘no longer relevant’, contrary to what the President of the General Court found, in paragraph 73 of the order under appeal, since they have established that sending that correspondence to the Commission would infringe Chinese Data Security Law and the Chinese Personal Information Protection Law.

46      Accordingly, the appellants have not established that the President of the General Court erred in law by finding, in paragraph 74 of the order under appeal, that, in the light of the evidence submitted to him in the context of the proceedings for interim relief, the appellants had not established to the requisite legal standard that they would be compelled, in order to give effect to the decision at issue, to take actions in respect of which they would probably incur criminal liability and, consequently, be subject to criminal sanctions.

47      The first part of the second ground of appeal must therefore be rejected as unfounded.

 Second part of the second ground of appeal

–       Arguments

48      By the second part of their second ground of appeal, the appellants submit that the President of the General Court failed to examine any of the supplementary evidence submitted by them, in three supplemental submissions, the first two dated 28 June 2024 and the third dated 12 July 2024, in order to establish that both the appellants and Nuctech Technology had in fact applied for authorisation from the competent Chinese authorities to send the electronic correspondence at issue to the Commission and that their applications had been rejected. According to the appellants, if the President of the General Court had examined that evidence, he would have had to find that sending that correspondence to the Commission would infringe Chinese law and subject the appellants and the individuals directly responsible to administrative penalties, which warranted a finding of urgency.

49      The appellants further state that no reason was provided by the President of the General Court, in the order under appeal, for ignoring the supplementary evidence.

50      The Commission contends that the second part of the second ground of appeal is ineffective and unfounded.

–       Assessment

51      It must be noted, first of all, that it is in no way apparent from the information provided by the appellants in the second part of their second ground of appeal that the supplemental submissions to which they refer concern steps that they themselves, or Nuctech Technology, had taken vis-à-vis the Chinese authorities pursuant to the Chinese Law on Safeguarding State Secrets.

52      Next, the fact that the appellants and Nuctech Technology took steps to obtain the authorisations required under the Chinese Data Security Law and the Chinese Personal Information Protection Law is not such as to vitiate the order under appeal by an error of law as regards the assessment by the President of the General Court of the condition relating to urgency and is, therefore, ineffective.

53      The analysis of the President of the General Court to the effect that the administrative penalties imposed in the event of infringement of those laws did not make it possible to establish urgency is based to the requisite legal standard on the finding, in paragraph 71 of the order under appeal, that the appellants had failed to demonstrate that those penalties would result in irreparable damage.

54      Lastly, in so far as the appellants claim that the order under appeal is vitiated by a failure to comply with the obligation to state reasons on the ground that the President of the General Court did not expressly refer to the supplementary evidence adduced in the three supplemental submissions, it must be borne in mind that, according to settled case-law, the judge hearing an application for interim measures cannot be required to reply explicitly to all of the points of fact and law raised in the course of the interlocutory proceedings. It is sufficient that the reasons given validly justify his order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review (order of the President of the Court of 31 August 2010, Artisjus v Commission, C‑32/09 P(R), EU:C:2010:473, paragraph 17 and the case-law cited).

55      In the present case, the President of the General Court set out to the requisite legal standard, in the order under appeal, the reasons why the condition relating to urgency was not satisfied.

56      Consequently, the second part of the second ground of appeal must be rejected as in part ineffective and in part unfounded and, accordingly, the second ground of appeal must be rejected in its entirety.

57      In those circumstances, it does not appear necessary to examine the first and third grounds of appeal, relating, respectively, to a prima facie case and to the weighing up of interests, since the operative part of the order under appeal, which dismisses the appellants’ application for interim measures, is based to the requisite legal standard on the ground that the condition relating to urgency is not, in any event, satisfied.

58      Since, in accordance with the provisions of Article 160(3) of the Rules of Procedure, the conditions relating to a prima facie case and to urgency are distinct and cumulative (see, to that effect, order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 41 and the case-law cited), the absence of urgency, correctly observed by the President of the General Court, has as its consequence that even a potential error of law committed by the President of the General Court in the assessment of the prima facie case or in the weighing up of interests would not lead to the order under appeal being set aside.

59      Accordingly, the appeal must be dismissed in its entirety.

 Costs

60      In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.

61      Under Article 138(1) of the Rules of Procedure, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

62      Since the appellants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds, the Vice-President of the Court of Justice hereby orders:

1.      The appeal is dismissed.

2.      Nuctech Warsaw Company Limited sp. z o.o and InsTech Netherlands BV shall pay, in addition to their own costs, those incurred by the European Commission.

Luxembourg, 21 March 2025.

*      Language of the case: English.