Language of document : ECLI:EU:C:2018:785

ORDER OF THE PRESIDENT OF THE COURT

25 September 2018 (*)

(Intervention at first instance — Confidentiality)

In Case C‑499/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 July 2018,

Bayer CropScience AG,

Bayer AG,

established in Monheim am Rhein (Germany), represented by K. Nordlander, advokat, P. Harrison, Solicitor, C. Zimmermann and A. Robert, avocats, and M. Zdzieborska, Solicitor,

appellants,

the other parties to the proceedings being:

European Commission

defendant at first instance,

Kingdom of Sweden,

Association générale des producteurs de maïs et autres céréales cultivées de la sous-famille des panicoïdées (AGPM), established in Montardon (France),

The National Farmers’ Union (NFU), established in Stoneleigh (United Kingdom),

Association européenne pour la protection des cultures (ECPA), established in Brussels (Belgium),

Rapool-Ring GmbH Qualitätsraps deutscher Züchter, established in Isernhagen (Germany),

European Seed Association (ESA), established in Brussels (Belgium),

Agricultural Industries Confederation Ltd, established in Peterborough (United Kingdom),

Union nationale de l’apiculture française (UNAF), established in Paris (France),

Deutscher Berufs- und Erwerbsimkerbund eV, established in Soltau (Germany),

Österreichischer Erwerbsimkerbund, established in Großebersdorf (Austria),

Pesticide Action Network Europe (PAN Europe), established in Brussels (Belgium),

Bee Life European Beekeeping Coordination (Bee Life), established in Louvain-la-Neuve (Belgium),

Buglife — The Invertebrate Conservation Trust, established in Peterborough (United Kingdom),

Stichting Greenpeace Council, established in Amsterdam (Netherlands),

interveners at first instance,

THE PRESIDENT OF THE COURT,

having regard to the proposal of the Judge-Rapporteur, L. Bay Larsen,

after hearing the Advocate General, M. Wathelet,

makes the following

Order

1        By their appeal, Bayer CropScience AG and Bayer AG ask the Court to set aside the judgment of the General Court of the European Union of 17 May 2018, Bayer CropScience and Others v Commission (T‑429/13 and T‑451/13, EU:T:2018:280), by which the General Court dismissed the action of Bayer CropScience seeking the annulment of Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ 2013 L 139, p. 12).

2        By document lodged at the Court Registry on 7 August 2018, Bayer CropScience and Bayer request that the Court grant confidential treatment, vis-à-vis the interveners at first instance, to certain passages in the appeal, the Schedule of Annexes and Annex 12 to the appeal, and to Annexes 4 and 5 to the appeal in their entirety. To that end, Bayer CropScience and Bayer have produced, in annex to their application for confidential treatment before the Court, a non-confidential version of the documents for which that treatment is requested.

3        The passages in Annex 12 to the appeal for which confidential treatment is requested correspond to the passages of the application at first instance in respect of which the General Court granted confidential treatment by order of 27 March 2015 in Case T‑429/13.

4        The other data for which confidential treatment is requested are new and particular to the present appeal.

5        It should be recalled that Article 171(1) of the Rules of Procedure of the Court 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 of the appeal on that party. 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.

6        However, in line with what was held in paragraph 5 of the order of the President of the Court of 13 December 2016, Lundbeck v Commission (C‑591/16 P, not published, EU:C:2016:967), it must be held, in a situation such as that at issue in the present case, in which parties apply for, inter alia, confidential treatment, vis-à-vis other parties that were interveners before the General Court, for material produced before the Court of Justice for which such treatment has already been granted during the proceedings at first instance vis-à-vis those same parties, that the same treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice.

7        Consequently, the application of Bayer CropScience and Bayer must be upheld in so far as it requests the Court to grant confidential treatment to the passages in Annex 12 to the appeal that correspond to those in the application at first instance in respect of which confidential treatment has already been granted. Accordingly, only the non-confidential version of that annex may be disclosed to the interveners at first instance.

8        By contrast, footnote 7 of the appeal, the main clause of the sentence in paragraph 3 of the appeal containing the reference to that footnote, Annexes 4 and 5 to the appeal and the references to those annexes in the Schedule of Annexes all contain information that was not submitted to the General Court and therefore did not previously benefit from confidential treatment before that Court. Consequently, that information must be communicated to the other parties to the appeal proceedings, including the interveners at first instance, pursuant to the provisions of the Rules of Procedure referred to in paragraph 5 of the present order.

9        In that regard, it must be recalled that, according to settled case-law, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only, as the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 68, and of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 69).

10      Consequently, it is not necessary, in principle, for a party to appeal proceedings to produce for the first time before the Court of Justice information or evidence relating to the factual circumstances of the case at issue other than those that were previously submitted to the General Court, in respect of which confidential treatment may therefore need to be granted vis-à-vis the parties that participated in the proceedings before the General Court.

11      In such circumstances, it is necessary to refuse the application in which Bayer CropScience and Bayer request that the Court grant confidential treatment, vis-à-vis the interveners at first instance, for the material referred to in paragraph 8 of the present order.

12      However, in order to allow Bayer CropScience and Bayer effectively to protect their commercial interests, it is appropriate to prescribe a short period for those parties to indicate to the Court whether they wish to retain that material in their appeal or whether they would prefer to remove it from the appeal before it is served on the other parties.

On those grounds, the President of the Court hereby orders:

1.      Confidential treatment is granted, vis-à-vis the interveners at first instance, to the passages in Annex 12 to the appeal corresponding to those which previously benefited from confidential treatment and appear in the application at first instance of Bayer CropScience AG in the case that gave rise to the judgment of the General Court of the European Union of 17 May 2018, Bayer CropScience and Others v Commission (T429/13 and T451/13, EU:T:2018:280), only the non-confidential version of those documents having to be served, by the Registrar, on the interveners at first instance.

2.      The remainder of the application for confidential treatment is dismissed.

3.      A period shall be prescribed within which Bayer CropScience AG and Bayer AG may indicate to the Court whether they wish to retain in their appeal footnote 7 of the appeal, the main clause of the sentence in paragraph 3 of the appeal containing the reference to that footnote, Annexes 4 and 5 to the appeal and the references to those annexes in the Schedule of Annexes.

4.      The costs shall be reserved.

Luxembourg, 25 September 2018.


A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.