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On October 29, the General Court (“GC”) partially granted the interim measures requested by Facebook within the framework of two appeals against several information requests that the European Commission (the “Commission”) had issued to Facebook as part of several investigations into how its marketplace competes with classified advertisement services of other operators and into its data collection and processing practices.
The GC has now ordered the partial suspension of both information requests, inasmuch as they relate to documents not related to the commercial activities of Facebook and which, moreover, contain personal data of a sensitive nature. This suspension shall be maintained until a restricted-access virtual data room to which the documents in question shall be uploaded is set up.
The investigations of the European Commission
In 2019, the Commission opened two preliminary investigations with respect to Facebook. The first preliminary investigation concerned the data collection practices of Google and Facebook (AT.40628 — Facebook data-related practices), and, the second one, how the marketplace of Facebook competes with classified advertisement services of other operators (AT.40684 — Facebook Marketplace).
As part of these preliminary investigations, the Commission issued two information requests to Facebook, and provided for a potential penalty payment of EUR 8 million per day of non-compliance. While Facebook provided the Commission with the vast majority of the requested documents, it refused to submit several others arguing that the scope of the requests was beyond what was necessary for the investigation, and that they were based on ambiguous keyword searches. Such ambiguity and excessive broadness, Facebook claimed, implied the obligation to hand in to the Commission purely internal and private documents that were irrelevant to the investigation and which contained highly sensitive information about Facebook and its employees.
In light of these claims, the Commission suggested that Facebook supply such documents that had a purely private and sensitive nature through a virtual data room. However, after various exchanges with the Commission on how this data room would work, on July 15, Facebook filed two appeals before the GC (T-451/20 and T-452/20) against the two information requests, requesting their annulment and interim suspension or, alternatively, their partial suspension and the possibility of responding to the remainder of the information requests using a data room with restricted access.
The Orders of the President of the GC, of July 24, provisionally granting the interim measures
On July 24, the President of the GC, making use of his power to provisionally grant interim measures even before having received the observations of the counterparty, ordered the suspension of the two appealed information requests until the GC had ruled on the interim measures (analyzed in our blog here).
Orders of the President of the GC, of October 29, on the application for interim measures
In the two relevant Orders (T-451/20 and T-452/20), the President of the GC conducts an exhaustive analysis of the satisfaction of each of the three requisites that shall be met for the European Union Courts to grant an application for interim measures.
First, the President of the GC draws a particular analogy as he establishes that information requests such as the disputed ones, whereby the investigated company has to hand over a large number of documents based on wide-ranging keyword searches and the Commission only analyzes their relevance ex post, are very similar to an inspection of company premises and, therefore, must be subject to a similar degree of procedural safeguards (among others, excluding those documents which are not relevant to the investigation from the casefile -and, thus, from the powers of investigation of the Commission-).
As for the fumus boni iuris requirement, Facebook argues four grounds which essentially summarize the arguments put forward in its main appeals (analyzed in this blog here). In both orders, the President of the GC only considers two of them; in particular, those which relate to the violation of the principle of necessity and the rights to privacy and defense of Facebook, which allegedly derived from the wide-ranging and vague scope of the appealed decisions.
In terms of the first evaluated argument, in view of the GC, given the broad scope of the search terms, it would be highly likely that they would capture a significant number of documents not necessary to the investigation. Therefore, in the absence of a method to verify the relevance of the documents which would safeguard the rights of the persons affected, it could not be ruled out that the information requests would be deemed unlawful in the main proceedings.
Furthermore, the fact that, for the purposes of its investigations, the Commission uses search methods which require the processing of personal data does not shield it from the obligation to take into account their particular sensitivity and to limit their collection and processing to what is strictly necessary and proportionate to the exercise of its powers.
As regards the second considered argument, the President of the GC admits the argument put forward by Facebook regarding the possibility that the disclosure of documents containing extremely sensitive personal data (e.g., medical information) could infringe the right to privacy of the Facebook employees to whom those data refer, therefore causing them irreparable harm in the absence of the requested interim suspension. However, the GC rejects the same argument made in respect of Facebook itself. The GC found that, since the documents include data shared in the most private sphere of the employees, any undue enlargement of the group of third parties who had knowledge of them could cause them serious and irreparable harm. In this sense, since the knowledge of information is irreversible, the potential annulment of the information requests by the GC could not reverse the harmful effects of the disclosure.
However, the GC rejects the urgency of adopting the requested interim measure with regards to the alleged risk of disclosure of the information to third parties and its potential use in the context of a new investigation by the Commission. Instead, it concludes that if the information requests were eventually declared null and void or found to be partially unlawful, the Commission could not legally use the information it gleaned from them.
Nevertheless, after weighing up the conflicting public (effective application of competition law) and private interests (the potential irreparable harm analyzed) at stake, the President of the GC agreed to the requested interim measure. Specifically, it ordered the partial suspension of the information requests in respect of such documents which were not related to the commercial activities of Facebook and which contained sensitive personal data, until an ad hoc procedure for the assessment of such documents has been set up.
This procedure would see Facebook identifying the documents that it considers to contain sensitive information and uploading them to a virtual data room, to which access would be restricted to a small number of Commission officials, always with the -physical or virtual- presence of the lawyers of Facebook. The Commission officials will then select the documents they consider necessary for the purpose of the investigation and, before including them into the casefile, they will need to give the lawyers of Facebook the chance to comment on the relevance of each document. In the event of a disagreement as to the classification of a particular document, Facebook will be able to ask the Director for Information, Communication and the Media at DG Competition to resolve the disagreement.
Of particular interest in this detailed analysis by the President of the TG is the comparison it draws between the safeguards to be respected for individuals in the case of a Commission raid on company headquarters with those that should govern a large-scale information request which limits the relevance evaluation of the gathered documents to an ex post analysis.
The Orders are also particularly interesting for being the first case in which the court orders an interim measure consisting of an ad hoc procedure, through the use of a data room, to assess the relevance of the documents collected during an investigation.
Through these Orders, the GC highlights, once again and in line with its recent case law (analyzed here and here), the judicial protection that the rights of the parties deserve against the procedural actions of the Commission, both in dawn raids of company headquarters and in the face of arbitrary and disproportionate interferences by the Commission in the right to privacy of those under investigation.
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