ORDER OF THE PRESIDENT OF THE COURT
13 February 2019 (*)
(Appeal — Intervention at first instance — Confidentiality)
In Case C‑595/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 September 2018,
The Goldman Sachs Group Inc., established in New York (United States), represented by A. Mangiaracina, avvocatessa, and J. Koponen, advokat,
appellant,
the other parties to the proceedings being:
European Commission, represented by P. Rossi, J. Norris, C. Sjödin and T. Vecchi, acting as Agents,
defendant at first instance,
Prysmian SpA, established in Milan (Italy),
Prysmian Cavi e Sistemi Srl, established in Milan,
represented by C. Tesauro, F. Russo and L. Armati, avvocati,
interveners at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal of P.G. Xuereb, Judge Rapporteur,
after hearing the Advocate General, J. Kokott,
makes the following
Order
1 By its appeal, The Goldman Sachs Group Inc. asks the Court to set aside the judgment of the General Court of the European Union of 12 July 2018, The Goldman Sachs Group v Commission (T‑419/14, ‘the judgment under appeal’, EU:T:2018:445), by which the General Court dismissed its action seeking, in particular, annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the Agreement on the European Economic Area (EEA) (Case AT.39610 — Power cables), in so far as it concerns the appellant.
2 By document lodged at the Registry of the Court of Justice on 4 January 2019, the European Commission asked the Court to grant confidential treatment, vis-à-vis Prysmian SpA and Prysmian Cavi e Sistemi Srl, the interveners at first instance, to certain information contained in paragraphs 100, 101 and 103 of its response to the appeal and to footnotes 104 and 106 thereof. To that end, the Commission submits, in annex to its application for confidential treatment before the Court of Justice, a non-confidential version of that response.
3 In that regard, it should be recalled that, by order of 14 September 2016, The Goldman Sachs Group v Commission (T‑419/14, not published, EU:T:2016:711), the President of the Eighth Chamber of the General Court decided, on the basis of Article 144(5) and (7) of the Rules of Procedure of the General Court, that only a non-confidential version of the application initiating proceedings and of the reply which were submitted by The Goldman Sachs Group as well as of the Commission’s defence and rejoinder would be disclosed to the interveners at first instance. Moreover, only a non-confidential version of the judgment under appeal was notified to Prysmian and Prysmian Cavi e Sistemi by the General Court. Since the information covered by the application for confidential treatment submitted by the Commission was held to be confidential by the General Court and, it did not appear either in the non-confidential version of the application initiating proceedings and of the pleadings submitted by The Goldman Sachs Group and the Commission, or in the non-confidential version of the judgment under appeal.
4 Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. Moreover, in accordance with Article 172 of those rules, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service on him of the appeal. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on the parties given leave to intervene before the General Court.
5 However, it must be held, in a case such as this one, in which a party is requesting, in relation to a party that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential in relation to that same party in the proceedings at first instance, that the same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (order of the President of the Court of 13 December 2016, Lundbeck v Commission, C‑591/16 P, not published, EU:C:2016:967, paragraph 5).
6 It follows that the application for confidential treatment lodged by the Commission so far as concerns the information set out in paragraphs 100 and 103 and in footnote 104 of the Commission’s response must be upheld, since that information has already been treated as confidential before the General Court.
7 By contrast, as regards the application for confidential treatment in relation to paragraph 101 of that response, it must be stated that the information in that paragraph is reflected in the heading preceding that paragraph, in respect of which the Commission has not applied for confidential treatment, and appears in paragraph 50 of the non-confidential version of the notice of appeal submitted by The Goldman Sachs Group. Since that information is already known to the parties in relation to whom the Commission is making its request for confidentiality, granting such treatment to that information no longer serves any purposes at this stage of the proceedings (see, to that effect, order of the President of the Court of 7 March 2017, Council v PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia, C‑603/16 P, not published, EU:C:2017:238, paragraph 7).
8 As regards the information indicated by the Commission and contained in footnote 106 of that response, it must be stated that that information, although it has a certain connection with the information which was considered confidential by the General Court in the order of 14 September 2016, The Goldman Sachs Group v Commission (T‑419/14, not published, EU:T:2016:711), and which is at issue in paragraphs 103, 106 and 108 of the judgment under appeal, cannot be placed on the same footing as information which was considered confidential by the General Court. Moreover, it should be recalled, so far as this point is relevant, that the interveners at first instance are in possession of the information referred to in the last two lines of that footnote 106, in which recital 761 and footnote 1133 of Commission Decision C(2014) 2139 final are mentioned, since they have a copy of that decision. Accordingly, it must be held that the Commission has not demonstrated that the information referred to in those two last lines of that footnote 106 were treated as confidential before the General Court.
9 It follows from the foregoing that the application lodged by the Commission asking the Court to grant confidential treatment, vis-à-vis the interveners at first instance, to the information indicated by the Commission set out in paragraphs 100 and 103 and in footnote 104 of its response must be upheld. Accordingly, only a non-confidential version of that document, which it will be for the Commission to prepare, will be served on those interveners. The remainder of the application must be dismissed.
On those grounds, the President of the Court hereby orders:
1. Confidential treatment is granted, vis-à-vis Prysmian SpA and Prysmian Cavi e Sistemi Srl, to the information indicated by the European Commission set out in paragraphs 100 and 103 and in footnote 104 of its response, only the non-confidential version of those documents, in which that information is deleted, having to be served, by the Registrar, on Prysmian and on Prysmian Cavi e Sistemi;
2. The remainder of the application is dismissed;
3. The costs are reserved.
Luxembourg, 13 February 2019.
A. Calot Escobar | | K. Lenaerts |