ORDER OF THE PRESIDENT OF THE COURT
1 October 2020 (*)
(Appeal – Intervention – Confidentiality – Information treated as confidential at first instance)
In Case C‑376/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 August 2020,
European Commission, represented by G. Conte, C. Urraca Caviedes, J. Szczodrowski and M. Farley, acting as Agents,
appellant,
the other parties to the proceedings being:
CK Telecoms UK Investments Ltd, established in London (United Kingdom), represented by T. Wessely, Rechtsanwalt, O.W. Brouwer, advocaat, J Aitken, A. Woods and M. Davis, Solicitors,
applicant at first instance,
United Kingdom of Great Britain and Northern Ireland,
EE Ltd,
interveners at first instance,
THE PRESIDENT OF THE COURT
having regard to the proposal of A. Arabadjiev, Judge-Rapporteur,
after hearing the Advocate General, G. Pitruzzella,
makes the following
Order
1 By its appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (T‑399/16, ‘the judgment under appeal’, EU:T:2020:217), by which that court annulled Commission Decision C(2016) 2796 final of 11 May 2016 declaring incompatible with the internal market the concentration resulting from the acquisition of Telefónica Europe plc by Hutchison 3G UK Investments Ltd (Case COMP/M.7612 – Hutchison 3G UK/Telefónica UK).
2 By document lodged on 7 August 2020, the Commission asked the Court of Justice to grant confidential treatment, vis-à-vis EE Ltd only, one of the two interveners at first instance, to certain passages set out in paragraphs 74, 89, 131, 132, 136 and 140 to 145 of the appeal and in footnotes 30, 71, 75, 76 and 78 of that appeal, which contain information constituting business secrets and correspond to information for which the General Court granted confidential treatment at first instance.
3 The Commission provided grounds justifying the request for each of the elements for which confidential treatment is sought. In particular, in support of its request, the Commission submitted that the appeal contained pieces of information that could be regarded as business secrets, commercially sensitive information or other types of confidential information that should not be communicated to EE.
4 The Commission also submitted, in annex to its request for confidential treatment, a non-confidential consolidated version of its appeal.
5 By letter of 10 September 2020, the Court Registry invited the applicant at first instance, CK Telecoms UK Investments Ltd, to submit its observations on the request for confidential treatment made by the Commission.
6 By its response lodged on 15 September 2020 and supplemented the following day, that company stated that it did not seek any further confidential treatment of information beyond that covered by the Commission’s request for confidential treatment, or confidential treatment of information contained in that request vis-à-vis the other intervener at first instance, namely the United Kingdom of Great Britain and Northern Ireland.
7 In that regard, 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 that party 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 admitted as interveners before the General Court.
8 However, where a party is requesting, vis-à-vis 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 vis-à-vis that same party in the proceedings at first instance, that 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 2 September 2020, Eurofer v Commission, C‑226/20 P, not published, EU:C:2020:669, paragraph 4).
9 In the present case, it must be noted that, in the proceedings at first instance, the President of the First Chamber of the General Court decided, by orders of 16 March and 26 September 2017, on the basis of Article 144(5) and (7) of the Rules of Procedure of the General Court, that the communication to EE, as an intervener at first instance, of each of the procedural documents served on the main parties was to be limited to a non-confidential version, with the decision on the merits of the requests for confidential treatment submitted by the main parties to be taken at a later stage.
10 In addition, as is apparent from paragraphs 49 to 53, 56 to 59, 62 and 63 of the judgment under appeal, following the requests for confidential treatment submitted by the main parties before the General Court following those orders, several pieces of information and items in the case file were subject to such treatment vis-à-vis EE. Moreover, only a non-confidential version of the judgment under appeal was notified to EE. Since the pieces of information covered by the requests for confidential treatment submitted by the Commission were considered to be confidential by the General Court, they did not appear either in the non-confidential version of the procedural documents served on the main parties or in the non-confidential version of the judgment under appeal, which was notified to EE.
11 It follows that the Commission’s request seeking that the Court keep confidential, vis-à-vis EE, the pieces of information set out in paragraphs 74, 89, 131, 132, 136 and 140 to 145 of the appeal and in footnotes 30, 71, 75, 76 and 78 of that appeal, which were kept confidential in the case giving rise to the judgment under appeal, must be granted and that only the non-confidential version of that appeal, in which that information is deleted, must be served, by the Registrar, on EE.
On those grounds, the President of the Court hereby orders:
1. Confidential treatment is granted, vis-à-vis EE Ltd, to the pieces of information set out in paragraphs 74, 89, 131, 132, 136 and 140 to 145 of the appeal of the European Commission and in footnotes 30, 71, 75, 76 and 78 of that appeal, which were kept confidential in the case giving rise to the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (T‑399/16, EU:T:2020:217), and only the non-confidential version of that appeal, in which that information is deleted, shall be required to be served by the Registrar on EE.
2. The costs are reserved.
Luxembourg, 1 October 2020.
A. Calot Escobar | | K. Lenaerts |