ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
27 March 2015 (*)
(Confidentiality — Disputed by an intervener)
In Case T‑429/13,
Bayer CropScience AG, established in Monheim am Rhein (Germany), represented by K. Nordlander, lawyer, and P. Harrison, Solicitor,
applicant,
supported by
Association générale des producteurs de maïs et autres céréales cultivées de la sous-famille des panicoïdées (AGPM), represented by L. Verdier, lawyer,
The National Farmers’ Union (NFU), represented by N. Winter, Solicitor, and H. Mercer QC,
European Crop Protection Association (ECPA), represented by D. Abrahams, Barrister, and I. de Seze and E. Mullier, lawyers,
Rapool-Ring GmbH, represented by C. Stallberg and U. Reese, lawyers,
European Seed Association (ESA), represented by P. de Jong, P. Vlaemminck and B. Van Vooren, lawyers,
Agricultural Industries Confederation Ltd, represented by P. de Jong, P. Vlaemminck and B. Van Vooren, lawyers,
interveners,
v
European Commission, represented by P. Ondrůšek and G. von Rintelen, acting as Agents,
defendant,
supported by
Kingdom of Sweden, represented by A. Falk, C. Meyer-Seitz, and U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, acting as Agents,
Union nationale de l’apiculture française (UNAF), represented by B. Fau, lawyer,
Deutscher Berufs- und Erwerbsimkerbund eV,
Österreichischer Erwerbsimkerbund, represented by A. Willand, lawyer,
Stichting Greenpeace Council, represented by B.N. Kloostra, lawyer,
Pesticide Action Network Europe (PAN Europe),
Bee Life European Beekeeping Coordination (Bee Life),
Buglife — The Invertebrate Conservation Trust, represented by B.N. Kloostra, lawyer,
interveners,
APPLICATION for 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),
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 On 19 August 2013, the applicant, Bayer CropScience AG, brought an action under Article 263 TFEU for 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 19 December 2013, the Kingdom of Sweden applied for leave to intervene in support of the form of order sought by the Commission.
3 By document lodged at the Court Registry on 20 December 2013, the Union nationale de l’apiculture française (UNAF) applied for leave to intervene in support of the form of order sought by the Commission.
4 By document lodged at the Court Registry on 30 December 2013, the Association générale des producteurs de maïs et autres céréales cultivées de la sous-famille des panicoïdées (AGPM) applied for leave to intervene in support of the form of order sought by the applicant.
5 By document lodged at the Court Registry on 20 December 2013, the National Farmers’ Union (NFU) applied for leave to intervene in support of the form of order sought by the applicant.
6 By document lodged at the Court Registry on 20 December 2013, the Deutscher Berufs- und Erwerbsimkerbund eV (DBEB) and the Österreichischer Erwerbsimkerbund (ÖEB) jointly applied for leave to intervene in support of the form of order sought by the Commission.
7 By document lodged at the Court Registry on 23 December 2013, the European Crop Protection Association (ECPA) applied for leave to intervene in support of the form of order sought by the Commission.
8 By document lodged at the Court Registry on 31 December 2013, Rapool-Ring GmbH applied for leave to intervene in support of the form of order sought by the applicant.
9 By document lodged at the Court Registry on 26 December 2013, the European Seed Association (ESA) applied for leave to intervene in support of the form of order sought by the applicant.
10 By document lodged at the Court Registry on 26 December 2013, the Agricultural Industries Confederation Ltd (AIC) applied for leave to intervene in support of the form of order sought by the applicant.
11 By document lodged at the Court Registry on 31 December 2013, Stichting Greenpeace Council applied for leave to intervene in support of the form of order sought by the Commission.
12 By document lodged at the Court Registry on 31 December 2013, Pesticide Action Network Europe (PAN Europe), Bee Life European Beekeeping Coordination (Bee Life) and Buglife — The Invertebrate Conservation Trust (Buglife) jointly applied for leave to intervene in support of the form of order sought by the Commission.
13 By letters lodged at the Court Registry on 5 and 26 February, 6, 18 and 26 March, 8 and 10 April and 17 July 2014 (together ‘the application for confidential treatment’), the applicant requested that, in accordance with Article 116(2) of the Rules of Procedure of the General Court, certain confidential information in the application, the defence, the reply and the rejoinder and the annexes to those documents should not be disclosed to the interveners, in the event that they were granted leave to intervene in the proceedings. The applicant produced, for the purposes of that disclosure, a non-confidential version of the documents in question.
14 By orders of 21 October 2014, leave was granted to the Kingdom of Sweden, UNAF, DBEB, ÖEB, Stichting Greenpeace Council, PAN Europe, Bee Life and Buglife to intervene in support of the form of order sought by the Commission, and leave was granted to the AGPM, NFU, ECPA, Rapool-Ring, ESA and AIC to intervene in support of the form of order sought by the applicant. Furthermore, the decision on whether the application for confidential treatment was well founded was reserved and, as a provisional measure, the provision of procedural documents to those parties was restricted to a non-confidential version, pending the submission of any observations on the application for confidential treatment.
15 By letters lodged at the Court Registry on 12 November 2014, DBEB and the ÖEB, Stichting Greenpeace, PAN Europe, Bee Life, Buglife and UNAF objected to the applicant’s application for confidential treatment.
The application for confidential treatment
16 Article 116(2) of the Rules of Procedure of the General Court provides:
‘If the President allows the intervention, the intervener shall receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.’
17 That provision lays down the principle that interveners are to receive a copy of every document served on the parties and that it is only by way of derogation from that principle that certain secret or confidential documents or information may be withheld from disclosure (orders of 4 April 1990 in Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10; 22 February 2005 in Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 18; and 18 November 2008 in Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 17).
Whether the application for confidential treatment is well founded
18 The application for confidential treatment submitted by the applicant concerns six categories of data.
19 First, there is personal data, that is the names and contact details of the applicant’s employees.
20 Second, the application concerns letters of support from third parties and references to those letters.
21 Third, the applicant requests confidential treatment of certain unpublished studies commissioned by it and other information, prepared specifically for the purposes of the present proceedings.
22 Fourth, there are information and documents relating to ongoing proceedings not made public.
23 Fifth, the application concerns unpublished information relating to the applicant’s products and activities.
24 Sixth, there is an unpublished list drawn up by the applicant of studies on imidacloprid and clothianidin and related comments from the European Food Safety Authority (EFSA).
25 In that regard, it should be borne in mind, first, that the party who makes an application for confidential treatment is required to specify the documents or information covered and to duly state the reasons why they are claimed to be confidential (see order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 31 and the case-law cited). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restate those requirements in paragraph 76, according to which ‘[a]n application must accurately identify the particulars or passages to be excluded and briefly state the reasons for which each of those particulars or passages is regarded as secret or confidential’. The first subparagraph of Article 6(2) of the Instructions to the Registrar of the General Court (OJ 2007 L 232, p. 1) provides that an application for confidential treatment must be made in accordance with, inter alia, paragraph 76 of the Practice Directions to Parties (see the order in Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 18).
26 Second, when a party makes an application under the second sentence of Article 116(2) of the Rules of Procedure, the President is to give a decision solely on the documents and information the confidentiality of which is disputed (order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 36). In so far as an application is not contested, there is no need to give a decision on it.
27 Third, where an application under the second sentence of Article 116(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether the documents and information whose confidentiality is disputed, and in respect of which an application for confidential treatment has been requested, are secret or confidential (see, to that effect, orders in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 38; of 11 June 2007 in Deutsche Post v Commission, T‑266/02, EU:T:2007:166, paragraph 21; and in Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 19).
28 Where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are secret or confidential, the President is required to go on to assess and weigh up the competing interests, for each document and piece of information (the orders in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 42, and Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 20).
29 Last, it must be borne in mind that the parties and interveners in proceedings are in any event to use the pleadings of which copies are sent to them solely for the purpose of exercising their respective procedural rights (judgment of 17 June 1998 in Svenska Journalistförbundet v Council, T‑174/95, ECR, EU:T:1998:127, paragraph 137; order of the President of the First Chamber of the Court of 5 August 2003 in Glaxo Wellcome v Commission, T‑168/01, not published in the ECR, paragraph 28, and order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 47).
30 In the present case, it should be noted, in addition, that DBEB, ÖEB, Stichting Greenpeace, PAN Europe, Bee Life, Buglife and UNAF are the only interveners to have raised objections to the application for confidential treatment. In contrast, the other parties granted leave to intervene in the proceedings, either in support of the form of order sought by the applicant or that sought by the Commission, have not objected to the application and, as a consequence, have by implication waived the right to challenge the claim that the case-file contains confidential information. It follows that there is no need to examine whether the applicant’s application is well founded in regard to those interveners (see, to that effect, order of 4 March 2005 in BUPA and Others v Commission, T‑289/03, ECR, EU:T:2005:78, paragraph 11) and that the present order must be confined to examining that application with regard to DBEB, ÖEB, Stichting Greenpeace, PAN Europe, Bee Life, Buglife and UNAF, inasmuch as they have disputed the application for confidential treatment.
Certain arguments raised by Stichting Greenpeace, PAN Europe, Bee Life and Buglife
31 The objections to confidential treatment raised by Stichting Greenpeace, PAN Europe, Bee Life and Buglife are based, in the first place, on the fact that the documents and information at issue are alleged to constitute ‘information relating to emissions into the environment’ or ‘environmental information’ as provided for in the Convention on access to information, public participation in decision‐making and access to justice in environmental matters (OJ 2005 L 124, p. 1) (Aarhus Convention), Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26), and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13). In accordance with those instruments, it is argued that the documents and information in question should be disclosed.
32 Suffice it to note in that regard that the interveners that have raised those objections have failed to show how Directive 2003/4 directly applies to them. In addition, they have not explained how the Aarhus Convention and Regulation No 1367/2006 apply to the present case, where under the second subparagraph of Article 2(2) of that convention and Article 2(1)(c) of that regulation organs or institutions acting in a judicial capacity are excluded from the scope of that legislation.
33 The objections based on the Aarhus Convention, Directive 2003/4 and Regulation No 1367/2006 must therefore be rejected.
The personal data, that is the names and contact details of the applicant’s employees.
34 DBEB, ÖEB, Stichting Greenpeace, PAN Europe, Bee Life, Buglife and UNAF do not contest the application for confidentiality as regards the data referred to in paragraph 19 above. Consequently, in accordance with the case-law referred to in paragraph 26 above, there is no need to give a decision on the confidentiality of the personal data of the applicant’s employees, contained in the procedural documents and the annexes thereto, namely (i) the reference to Annex B.24 of the defence, in the schedule of annexes to the defence, (ii) Annexes B.7, B.9, B.14, B.15, B.17, B.18 and B.24 to the defence, (iii) footnote 59 of the reply, (iv) the reference to Annex C.28 to the reply, in the schedule of annexes to the reply, and Annex C.28 to the reply, (v) footnotes 10 and 11 of the rejoinder and (vi) the reference to Annexes D.1 and D.2 to the rejoinder, in the schedule of annexes to the rejoinder, and Annexes D.1 and D.2 to the rejoinder.
The letters of support from third parties
35 The applicant argues that the letters of support from third parties, submitted in annexes to the application and which DBEB, ÖEB and UNAF argue should be denied confidential treatment, were prepared for the sake of the present proceedings and that it received no permission from their authors to share those letters with the general public or third parties other than the Court. According to the applicant, if disclosed, the letters are liable to cause serious harm to the applicant and to the authors.
36 DBEB and ÖEB contend that, in its pleadings, the applicant attaches significant relevance to the letters of support and that the information contained therein is deemed to be important for the risk assessment and as such for the decision on the present action. They therefore take the view that they should have the opportunity of examining the letters of support and commenting upon them in their statements in intervention.
37 UNAF contends, first of all, that if the applicant did not receive the authorisation of the authors of the letters of support to use them in the present judicial proceedings or received only a very limited authorisation, then it should not have annexed them to the application, all the more so since it could envisage that at least some of those letters would have to be disclosed to the interveners. UNAF states that the alleged infringement, unspecified and unsubstantiated by the applicant, of an alleged agreement between the applicant and the authors cannot be a reason for confidential treatment.
38 It must be noted, in that regard, that in the context of his examination of whether the documents and information the confidentiality of which is contested is secret or confidential, the President cannot be bound by a confidentiality agreement which the applicant for confidential treatment may have concluded with a person not party to the dispute relating to documents or information that concern that person and are included in the pleadings or annexed thereto (see, to that effect, order of 3 June 1997 in Gencor v Commission, T‑102/96, ECR, EU:T:1997:82, paragraphs 17 to 19, and order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 39). In the present case, there is therefore no need to request the applicant to produce the confidentiality agreements on which it relies in support of its application.
39 In any event, as UNAF correctly contends, the applicant must, given the adversarial and public nature of legal proceedings, envisage the possibility that some of the secret or confidential documents or information which it has decided to place on the file might be necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (see, to that effect, the order of 29 May 1997 in British Steel v Commission, T‑89/96, ECR, EU:T:1997:77, paragraph 24; order of the President of the Second Chamber of the Court of 2 June 1992 in NALOO v Commission, T‑57/91, not published in the ECR, paragraph 16, and order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 46).
40 In the present case, it must be noted, first, that the applicant relies on the content of the letters of support at several points in the originating application, in order to substantiate its claims that (i) the restrictions imposed on neonicotinoids are likely to harm bees rather than protect them, (ii) the risk mitigation and stewardship measures are sufficiently effective and (iii) the economic consequences of the contested measure on farmers are considerable. Secondly, the applicant has not specified how the disclosure of the letters of support could cause serious harm to it or to the authors of the letters, nor what that harm would consist of.
41 In those circumstances, it is apparent on weighing up the competing interests that the letters of support are necessary for the exercise of the interveners’ procedural rights. If the interveners did not acquaint themselves with those letters, it would be excessively difficult for them to challenge the applicant’s arguments cited above.
42 Consequently, the Court must dismiss the application for confidential treatment concerning (i) paragraph 190 and footnotes 73 and 74, paragraph 192, footnotes 76, 77, 89 and 92, paragraph 235 and footnote 94 of the application, (ii) Annexes A.5, A.31 to A.36, A.41 and A.44 to A.46 to the application, and the references to those annexes in the schedule of annexes to the application and (iii) paragraph 212 of the defence. Since the letters of support contain personal information on the employees of their authors and of the applicant and the applicant has already expressed its wish for the confidential treatment of such data, a period will be prescribed within which it is to produce versions of those letters in which that data can be redacted.
The unpublished studies commissioned by the applicant, and other information, prepared specifically for the purposes of the present proceedings
43 The applicant submits that the unpublished studies commissioned by it and the other information, prepared specifically for the purposes of the present proceedings, contain information relevant to the process of obtaining registrations for new active substances or approvals for new plant protection products, not otherwise available through any public sources. Some of those studies at issue include the applicant’s proprietary information, information on the toxicity of imidacloprid for bees or information as regards exposure levels and effects at colony level.
44 DBEB and ÖEB submit, in that regard, that the studies and information at issue are relevant to the outcome of the present dispute, since the applicant uses them to call in question the risk assessment of the EFSA and the Commission. In particular, they may contain information on the use of the substances referred to in the contested measure, seed treatment and bees’ exposure by different means. DBEB and ÖEB take the view that confidential treatment of that information would prevent them in the proceedings from introducing their apicultural expertise, in particular with regard to the effectiveness of risk mitigation measures and their interests with regard to the protection of bees.
45 Stichting Greenpeace, PAN Europe, Bee Life and Buglife contend, in essence, that the applicant has no economic interest in keeping the studies and information at issue confidential. The studies contain no information on the applicant’s commercial position or specific products and are, therefore, not confidential. At the very least the protocols of the studies should be disclosed since they do not include confidential information. Stichting Greenpeace, PAN Europe, Bee Life and Buglife state, lastly, that the confidential treatment of the studies and information at issue would infringe their procedural rights. Since the applicant relies on scientific and factual information in order to challenge the contested measure, it is essential for them to get access to that information in order to be able to discuss its quality and relevance for the contested measure.
46 UNAF contends that, as the case refers to a matter where manifest error of assessment will be applied as a criterion of review, it would be most improper to exclude the interveners from assessing, at least with regard to the studies used, whether a manifest error of assessment was committed by the Commission. The precautionary principle and the prevention principle would also be jeopardised if those studies were granted confidential treatment. Lastly, the information therein is necessary for the exercise of the interveners’ procedural rights and it is in the interest of the sound administration of justice that such studies be debated by all interveners.
47 It must be found, in that regard, that, even if the information in the unpublished studies commissioned by the applicant, and the other information, prepared specifically for the purposes of the present proceedings, had to be characterised as secret or confidential, it is apparent on weighing up the competing interests that those studies and information are necessary for the exercise of the interveners’ procedural rights.
48 The applicant relies on those studies and information in order to challenge the merits of the Commission’s assessments concerning:
– whether the studies published at the beginning of 2012, relied on by the Commission, actually contained any genuinely new and relevant scientific information (paragraphs 75 and 76 and Annex A.16 to the application, paragraph 69 of the defence, paragraphs 43 and 48 of the reply);
– whether the exposure of bees to the substances with which certain seeds have been treated has no adverse effect on them (Annex A.24 to the application);
– whether a statement of the Commission grossly overstates the toxicity of imidacloprid for bees (footnote 12 of the reply);
– the difference between exposure levels that might give rise to an acute risk of relevance to an individual bee, on the one hand, and those that might give rise to acute risks of relevance at the colony level, on the other (paragraph 17, footnote 16 and Annex C.6 to the reply) and
– to what extent amateur gardeners are likely to follow the instructions of products containing the substances covered by the contested measure (Annex C.43 to the reply).
49 It is clear that all those questions go to the heart of the dispute in the present case, in that the Court’s replies to them will be decisive for the assessment of the lawfulness of all or part of the contested measure and, consequently, for the outcome of the applicant’s action. Accordingly, the confidential treatment of the studies and information at issue would prevent the interveners from commenting effectively on questions essential to the outcome of proceedings and could therefore impede the exercise of their procedural rights.
50 Consequently, the Court must dismiss the application for confidential treatment concerning (i) paragraphs 75 and 76 and footnotes 29 and 30 of the application, (ii) Annexes A.16 and A.24 to the application and the reference to Annex 16 in the schedule of annexes to the application, (iii) paragraph 69 of the defence and (iv) footnote 12, paragraph 17, footnote 16, and paragraphs 43 and 48 of the reply and (v) Annexes C.6 and C.43 to the reply as well as the reference to Annex C.6 in the schedule of annexes to the reply.
The information and documents concerning ongoing proceedings not made public
51 The information and documents relating to ongoing proceedings not made public — which DBEB, ÖEB and UNAF contend should not be granted confidential treatment — concern two sets of proceedings, the first of which the applicant claims is confidential, with the final decision to be anonymised, and the second legal proceedings not made public.
52 DBEB and ÖEB assume that that information concerns the correspondence between the applicant and the Commission in the context of the assessment of the risks in relation to the substances covered by the contested measure and contend, in that regard, that there is no reason why the information should be considered confidential.
53 UNAF contends that, since the final decisions in confidential proceedings are, according to the applicant, anonymised, there is no need for confidential treatment of them. In addition, as a professional trade association, it is not a competitor of the applicant and disclosing the information at issue to it would not adversely affect the applicant’s interests.
54 It is clear, first of all, as regards the nature of the information and documents concerning ongoing proceedings not made public that — contrary to what DBEB and ÖEB contend — that information and those documents do not relate to the risk assessment procedure of the EFSA and the Commission with respect to substances covered by the contested measure. Consequently, the objections of DBEB and ÖEB are devoid of purpose.
55 Next, contrary to what UNAF contends, the mere fact that the final decision of one of the proceedings in question is to be anonymised does not mean that interim documents, not made public, in proceedings such as those in question, cannot contain confidential information.
56 Lastly, it must be observed that the references to the proceedings at issue do not concern the key questions in the dispute, but enable the applicant simply to illustrate, first, its criticisms of the manner in which the Commission conducted the procedure that led to the adoption of the contested measure and, secondly, its argument that the Court would not be operating effectively if it dealt with the action solely with respect to imidacloprid and not with respect to clothianidin. In those circumstances, it is apparent on weighing up the competing interests that the information and documents in question are not necessary for the exercise of the interveners’ procedural rights.
57 Consequently, the Court must grant the application for confidential treatment of (i) paragraphs 26 and 27 and footnotes 15 and 16 of the application, (ii) Annexes A.9 and A.10 to the application and the references to those annexes in the schedule of annexes to the application and (iii) footnote 23 of the reply.
The unpublished information relating to the applicant’s products and business.
58 The unpublished information relating to the applicant’s products and business — which Stichting Greenpeace, PAN Europe, Bee Life and Buglife argue should be denied confidential treatment — includes, first, a list of the applicant’s home and garden products, containing the substances in question and registered to it, reproduced in Annex C.41 to the reply. The applicant submits that that list is not available through any public sources.
59 It must be observed, in that regard, that although the list in question is not as such publicly accessible, the various products on it are intended to be sold to the public and registered to the applicant in publicly accessible registers. The fact that those products are registered to the applicant cannot therefore be characterised as confidential or secret. In those circumstances, as a mere compilation of freely accessible information, the list cannot be characterised as confidential, within the meaning of the case-law cited in paragraph 27 above.
60 Consequently, the application for confidential treatment of Annex C.41 to the reply must be dismissed.
61 Secondly, there is a complete list of the applicant’s neonicotinoid-based plant protection products, reproduced in Annex A.1 to the application. That list, unlike the list in Annex C.41, includes the products targeted at professional users; in addition, the products are not designated there by their individual trade name but solely by product family. Furthermore, the list in Annex A.1 contains numerous variations of the different product families with, for each product, a breakdown of the amounts of the various active substances contained.
62 Thirdly, there is information concerning the applicant’s rights over one of the active substances covered by the contested measure and agreements in that regard between the applicant and third parties. That information is included in footnote 2 of the application and paragraph 25 and footnote 22 of the reply.
63 It must be concluded that that information is inherently secret or confidential, and that there is a risk that disclosure of that information may affect the applicant’s commercial interests in relation to its competitors. Moreover, it is clear that the information in question is not in the public domain, is not made available to third parties and does not constitute historic information.
64 As regards the assessment and weighing up of the respective interests of the applicant and of the interveners, it must be noted that the action in the present case concerns the examination of the lawfulness of the contested measure, which amended the conditions of approval of certain active substances and prohibits the use and sale of seeds treated with plant protection products containing those active substances. However, in order for the interveners to be able to comment effectively on that lawfulness, it is not necessary for them to have knowledge of the information identified in paragraphs 61 and 62 above.
65 Consequently, the Court must grant the application for confidential treatment of Annex A.1 to the application and footnote 2 thereof and paragraph 25 and footnote 22 of the reply.
The unpublished list drawn up by the applicant of studies on imidacloprid and clothianidin and related comments from the European Food Safety Authority (EFSA).
66 In that regard, it is necessary, first of all, to distinguish between the list drawn up by the applicant of studies on imidacloprid and clothianidin (Annex C.9 to the reply), on the one hand, and the comments on that list by the EFSA (Annex D.3 to the rejoinder), on the other. The confidential treatment of the two documents is disputed by DBEB, ÖEB, Stichting Greenpeace, PAN Europe, Bee Life and Buglife.
67 As regards, first, the list of studies compiled by the applicant, the latter submits that it is not publicly accessible through other sources. However, it must be noted that the applicant does not argue that the studies enumerated in the list are themselves confidential. In those circumstances, as a mere compilation of freely accessible data, the list cannot itself be characterised as confidential, within the meaning of the case-law cited in paragraph 27 above.
68 Consequently, the application for confidential treatment of Annex C.9 to the reply must be dismissed.
69 As regards, secondly, the comments of the EFSA on the list of studies, it is clear that the applicant bases its application for confidential treatment on the same considerations as those relating to the list itself, namely that the latter is not publicly accessible through other sources. In those circumstances, it must be held that the application for confidential treatment is restricted to the list and does not relate to the comments of the EFSA alone.
70 Consequently, in the light of the dismissal of the application for confidential treatment of Annex C.9 to the reply, the application for confidential treatment of Annex D.3 to the rejoinder must also be dismissed.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. There is no need to adjudicate on the application by Bayer CropScience AG for confidential treatment, lodged by letters on 5 and 26 February, 6, 18 and 26 March, 8 and 10 April and 17 July 2014, in so far as it concerns (i) the reference to Annex B.24 to the defence, in the schedule of annexes to the defence, (ii) Annexes B.7, B.9, B.14, B.15, B.17, B.18 and B.24 to the defence, (iii) footnote 59 of the reply, (iv) the reference to Annex C.28 to the reply, in the schedule of annexes to the reply, and Annex C.28 to the reply, (v) footnotes 10 and 11 of the rejoinder and (vi) the reference to Annexes D.1 and D.2 of the rejoinder, in the schedule of annexes to the rejoinder, and Annexes D.1 and D.2 to the rejoinder, in so far as those documents contain personal information on the employees of Bayer CropScience.
2. The application for confidential treatment is granted in so far as it concerns the following information:
– (i) paragraphs 26 and 27 and footnotes 15 and 16 of the application, (ii) Annexes A.9 and A.10 to the application and the references to those annexes in the schedule of annexes to the application and (iii) footnote 23 of the reply;
– Annex A.1 and footnote 2 of the application and paragraph 25 and footnote 22 of the reply.
3. The application for confidential treatment is granted in part as regards (i) footnote 73 and Annexes A.5, A.31 to A.36, A.41 and A.44 to A.46 to the application, and the references to Annexes A.31 to A.34, A.36, A.41, A.44 and A.46 in the schedule of annexes to the application, in so far as the personal data on the employees of the authors of the letters of support and of Bayer CropScience are concerned.
4. The application for confidential treatment is dismissed for the remainder.
5. A period will be prescribed within which Bayer CropScience is to produce a non-confidential version of the procedural documents referred to in points 1 to 3 of the operative part.
6. A non-confidential version of the procedural documents referred to in points 1 to 3 of the operative part will be served on the interveners by the Registrar.
7. The costs are reserved.
Luxembourg, 27 March 2015.