ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
14 June 2018 (*)
(Confidentiality — Challenge by the intervener)
In Case T‑370/17,
KPN BV, established in The Hague (Netherlands), represented by P. van Ginneken and G. Béquet, lawyers,
applicant,
v
European Commission, represented by H. van Vliet, G. Conte, J. Szczodrowski and F. van Schaik, acting as Agents,
defendant,
supported by
VodafoneZiggo Group Holding BV, established in Amsterdam (Netherlands),
Vodafone Group plc, established in Newbury (United Kingdom),
Liberty Global Europe Holding BV, established in Amsterdam,
represented by W. Knibbeler, E. Raedts and A. Pliego Selie, lawyers,
interveners,
APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision C(2016) 5165 final of 3 August 2016 declaring the concentration involving the acquisition of joint control of a newly created full-function joint venture to be compatible with the internal market and the EEA Agreement (Case COMP/M. 7978 — Vodafone/Liberty Global/Dutch JV),
makes the following
Order
Procedure
1 By application lodged with the Court Registry on 12 June 2017, the applicant, KPN BV, brought the present action under Article 263 TFEU for the annulment of Commission Decision C(2016) 5165 final of 3 August 2016 declaring the concentration involving the acquisition of joint control of a newly created full-function joint venture to be compatible with the internal market and the EEA Agreement (Case COMP/M. 7978 — Vodafone/Liberty Global/Dutch JV).
2 By document lodged at the Court Registry on 11 September 2017, VodafoneZiggoGroup Holding B.V., Vodafone Group Plc and Liberty Global Europe Holding (‘the intervening companies’) applied to intervene in the present case in support of the form of order sought by the Commission.
3 The main parties did not object to that application to intervene. However, by document lodged at the Court Registry on 11 October 2017, the applicant applied for an order that paragraphs 28, 31, 45 and 50 of, and Annex 10 to, its application, and paragraphs 22 and 39(c) of the defence containing confidential commercial and strategic information should not be communicated to the intervening companies.
4 By order of 19 October 2017, the President of the Eighth Chamber allowed the intervention by the intervening companies, by temporarily limiting the communication of the application and the reply to the non-confidential versions produced by the applicant, whilst awaiting any observations from the intervening companies on the initial applications for confidential treatment.
5 By document lodged at the Court Registry on 6 November 2017, the intervening companies raised no objection against the application for confidential treatment referred to in paragraph 3 above.
6 By document lodged at the Court Registry on 10 November 2017, the applicant applied for an order that paragraph 35 of its reply containing confidential commercial and strategic information should not be communicated to the intervening companies.
7 By document lodged at the Court Registry on 28 November 2017, the intervening companies challenged the application for confidential treatment referred to in paragraph 6 above. In particular, they criticise the absence of detail on the nature of the allegedly confidential information. According to the intervening companies, they should at least be informed of the general content of paragraph 35 of the reply.
8 By document lodged at the Court Registry on 2 February 2018, the Commission applied for the confidential treatment of paragraph 26 of its rejoinder on the ground that it contains information in respect of which the applicant had applied for confidential treatment, an application on which the Court had not, at that stage, given its ruling.
9 By document lodged at the Court Registry on 14 March 2018, the intervening companies challenged the application for confidential treatment referred to in paragraph 8 above for the same reasons which they put forward in their letter of 28 November 2018.
Applications for confidential treatment
Basic principles
10 Under Article 144(7) of the Rules of Procedure of the General Court, if the application to intervene is granted, the intervener must receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication pursuant to paragraph 5. That paragraph provides that the President is to decide as soon as possible, by order, on the communication to the intervener of information which it is claimed is confidential.
11 That provision lays down the principle that interveners are to receive a copy of every pleading served on the parties and permits, only by way of derogation, that certain secret or confidential documents or information not be sent to them (see orders of 18 May 2015, PT Ciliandra Perkasa v Council, T‑120/14, not published, EU:T:2015:323, paragraph 18, and of 4 April 1990, Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10).
12 In accordance with point 221 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, the party which makes an application for confidential treatment must accurately identify the particulars or passages to be excluded and that application must state the reasons for which each of those particulars or passages is regarded as confidential (order of 5 October 2015, SNCM v Commission, T‑1/15, not published, EU:T:2015:833, paragraph 10). Failure to provide such information may result in the application being refused by the Court (orders of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 23, and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 36).
13 Furthermore, when a party makes an application for confidential treatment, the President of the relevant formation of the Court is to give a decision solely on the documents and information the confidentiality of which is disputed (see, to that effect, orders of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 24, and of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 36).
14 The intervener’s opposition to the confidentiality sought must relate to specific matters which have been obscured in the procedural documents and must state the reasons for which it considers that confidentiality with regard to those matters should be refused. Consequently, an application for confidential treatment must be upheld in so far as it concerns matters which have not been disputed by the intervener, or which have not been disputed expressly and in detail (orders of 5 October 2012, Orange v Commission, T‑258/10, not published, EU:T:2012:524, paragraph 21, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 25).
15 First of all, in so far as an application for confidential treatment is contested, the President of the relevant formation of the Court is required to examine whether each of the documents and items of information the confidentiality of which is disputed, and for which an application for confidential treatment has been made, is secret or confidential (orders of 5 October 2012, Orange v Commission, T‑258/10, not published, EU:T:2012:524, paragraph 22, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 26).
16 The requirement to state reasons for the application for confidentiality to which the applicant is subject must be assessed in the light of the secret or confidential nature of each document and item of information covered. A distinction must be drawn between, on the one hand, information which is inherently secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, on the other hand, documents or information which may be secret or confidential for a reason that the applicant must provide (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 34; of 5 October 2012, Orange v Commission, T‑258/10, not published, EU:T:2012:524, paragraph 23, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 27).
17 Thus, the secret or confidential nature of the documents or items of information for which no statement of reasons is provided other than that consisting of the description of their content will be accepted only in so far as that information may be considered to be inherently secret or confidential (orders of 18 November 2008, Zhejiang Harmonic Hardware Products v Council, T‑274/07, not published, EU:T:2008:508, paragraph 25; of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, not published, EU:T:2009:402, paragraph 17, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 28).
18 Secondly, where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are secret or confidential, it is for the President of the relevant formation of the Court to assess and weigh up the competing interests for each document and item of information (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 42; of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, not published, EU:T:2009:402, paragraph 24, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 29).
19 Thus, where confidential treatment is applied for in the interests of the applicant, the President of the relevant formation of the Court weighs in the balance, for each document or item of information, the applicant’s legitimate concern to prevent serious harm to its interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 44; of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, not published, EU:T:2009:402, paragraph 25, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 30).
20 In any event, the applicant must, in view of the adversarial and public nature of judicial proceedings, envisage the possibility that some of the secret or confidential documents or information which it has decided to place on the file may appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to the latter (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 46, and of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 31).
21 The applications for confidential treatment must be examined in the light of those principles.
Assessment of the applications for confidential treatment
22 As a preliminary point, in accordance with the case-law cited in paragraphs 13 and 14 above, it must be noted that, given that the intervening companies do not oppose the application for the confidential treatment of paragraphs 28, 31, 45 and 50 of, and Annex 10 to, the application, or of paragraphs 22 and 39(c) of the defence, it is not for the President of the relevant formation of the Court to rule on those applications. This order is thus limited to examining the applications for confidential treatment relating to paragraph 35 of the reply and paragraph 26 of the rejoinder, which the intervening companies opposed.
23 First, with regard to the application for the confidential treatment of paragraph 35 of the reply, the applicant claims that that paragraph contains confidential commercial and strategic information.
24 It is clear from an individual examination of the information referred to that it is indeed confidential in nature. In principle, the information is unavailable to the public or to the intervening companies, and there is no indication in the present case that the intervening companies could have already become aware of that information. Furthermore, it concerns precise, specific, recent information which may be considered to be strategic.
25 In addition, the applicant cannot be reproached for not having provided more details relating to the substance of that information or the general content of that paragraph, since, given the circumstances of the case, were it to give more details, it would risk revealing the information which the application seeks to protect. Moreover, the brief reasoning in the application for confidential treatment cannot be criticised either, since, following an individual examination of the information in question, it is clear that that information is confidential in nature, as indicated in paragraph 24 above.
26 Weighing up the interests involved leads to the conclusion that the confidential information in paragraph 35 of the reply does not appear necessary for the exercise of the procedural rights of the intervening companies, given that the content of that paragraph relates to information which seems to be peripheral to the proceedings and which has a weak link with the pleas in law raised by the applicant. Furthermore, it must be made clear that the information referred to was mentioned for the first time in the present proceedings by the Commission, in particular in paragraph 22 of the defence, and not by the applicant, in respect of which the applicant applied for confidential treatment without the intervening companies raising any opposition, as stated in paragraph 5 above.
27 It follows from the foregoing that the application for the confidential treatment of paragraph 35 of the applicant’s reply should be allowed.
28 Secondly, with regard to the application for the confidential treatment of paragraph 26 of the rejoinder, it is clear that that information in fact concerns paragraph 35 of the reply. That application should also be allowed for the reasons set out paragraphs 24 to 26.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following order:
1. The applications for the confidential treatment, vis-à-vis VodafoneZiggo Group Holding BV, Vodafone Group plc and Liberty Global Europe Holding BV, of paragraph 35 of the reply and paragraph 26 of the rejoinder are allowed.
2. The costs are reserved.
Luxembourg, 14 June 2018.