ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
5 October 2018 (*)
(Confidentiality — Objection by an intervener)
In Case T‑835/17,
Eurofer, the European Steel Association, AISBL, established in Brussels (Belgium), represented by J. Killick, Barrister, and G. Forwood, lawyer,
applicant,
v
European Commission, represented by T. Maxian Rusche and N. Kuplewatzky, acting as Agents,
defendant,
supported by
HBIS Group Serbia Iron & Steel LLC Belgrade, represented by R. Luff, lawyer,
intervener,
APPLICATION pursuant to Article 263 TFEU for the annulment in part of Commission Implementing Regulation (EU) 2017/1795 of 5 October 2017 imposing a definitive anti-dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Brazil, Iran, Russia and Ukraine and terminating the investigation on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Serbia (OJ 2017 L 258, p. 24),
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 29 December 2017, the applicant, Eurofer, the European Steel Association, AISBL, brought an action for the annulment in part of Commission Implementing Regulation (EU) 2017/1795 of 5 October 2017 imposing a definitive anti-dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Brazil, Iran, Russia and Ukraine and terminating the investigation on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Serbia (OJ 2017 L 258, p. 24).
2 By document lodged at the Court Registry on 17 April 2018, the intervener, HBIS Group Serbia Iron & Steel LLC Belgrade, applied for leave to intervene in support of the form of order sought by the Commission. Since the main parties did not object, leave to intervene was granted by order of 12 July 2018.
3 However, by a document lodged on 14 May 2018, the applicant requested, pursuant to Article 144(2) of the Rules of Procedure of the General Court, that certain confidential information in Annexes A.25, A.30 and A.31 to the application not be disclosed to the intervener.
4 To that end, it attached a non-confidential version of the application, including the annexes, to the application for confidential treatment.
5 In the order of 12 July 2018, mentioned in paragraph 2 above, the President of the Eighth Chamber of the General Court provisionally limited the disclosure of the application to the non-confidential version produced by the applicant, pending the submission of any observations by the intervener on the application for confidential treatment.
6 By document lodged on 31 July 2018, the intervener informed the Court that it had no objections to the confidential treatment of the information identified by the applicant, with the exception, however, of certain information on pages 779 to 781 of Annex A.25 to the application.
The request for confidential treatment
Principles
7 Article 144(7) of the Rules of Procedure provides as follows:
‘If the application to intervene is granted, the intervener shall 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.’
8 That provision establishes the principle that all the procedural documents served on the main parties must be sent to the interveners and it is only by way of derogation that certain confidential documents or information may be excluded from that communication (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 11; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 12, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 13).
9 In that connection, the party who makes an application for confidentiality has the task of specifying the documents or information covered and of duly stating the reasons for which they are confidential (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 13).
10 In so far as an application made under Article 144(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether each of the documents and pieces of information whose confidentiality is disputed, and in relation to which an application for confidential treatment has been made, are secret or confidential (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 15, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 15).
11 Where his examination leads him to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President is then to assess and weigh up the competing interests, for each document and piece of information (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 18; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 19, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 20).
12 Thus, where confidential treatment is requested in the interests of the applicants, this assessment will lead the President to weigh up, for each document or piece of information, the applicants’ legitimate concern to prevent serious harm to their interests and the equally legitimate concern of the interveners that they should have the information necessary to exercise their procedural rights (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 19 and the case-law cited, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 20).
13 In any event, the applicants must, given the adversarial and public nature of the judicial proceedings, envisage the possibility that some of the secret or confidential documents or information which they have decided to place on the file will appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 20; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 21, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 22).
14 The application for confidential treatment must be examined in the light of those principles.
Whether the application for confidential treatment is well founded
15 The applicant requests confidential treatment, vis-à-vis the intervener, of information in Annexes A.30 and A.31 to the application and the following information in Annex A.25 to the application, entitled ‘Presentation on the effect of the acquisition of Železara Smederevo by the Hebei Group’:
– information identifying the member of the applicant that produced the presentation in question, namely the company name and logo on pages 777 to 782 (‘the first category of information’);
– any future projections and estimates on page 779 (four rows in the table and
the estimate beneath), pages 780-781 (the four right hand columns in the graphs and the projection beneath) and page 782 (last bullet point describing the methodology used for estimations) (collectively, ‘the second category of information’).
16 As regards the second category of information in Annex A.25, the applicant argues that that information is non-public business intelligence that reflects the company’s internal assessments and is based on various other sources of information (both public and non-public) as well as the company’s own assumptions and calculations. As such, that information is also commercially sensitive and should be considered confidential.
17 The intervener has not objected to the confidential treatment of the information in Annexes A.30 and A.31 and the first category of information in Annex A.25.
18 However, as regards the second category of information in Annex A.25, it submits that the applicant relies on that annex in support of its allegations that, following the acquisition of the Železara Smederevo steel mill by the intervener, the estimates and projections for future Serbian exports indicate that ‘the EU markets will see a significant rise in Serbian/Chinese [hot-rolled flat] steel products’ and that ‘Serbia’s hot-rolled steel exports to [the] EU are expected to double in volumes by 2019 and almost triple by 2020’.
19 The applicant’s assertion that ‘Železara Smederevo has been continuously increasing its capacities since coming under new ownership’ is, according to the intervener, factually incorrect. As the intervener repeated numerous times during the course of the antidumping proceeding before the Commission, the total production capacity of the Serbian steel mill has not changed. It is therefore highly important for the intervener to ensure that the Commission and the Court are not being provided with incorrect information as regards projections for Serbian exports to the EU for the years 2017-2020.
20 Moreover, as that information directly pertains to the intervener, it is irrelevant that, according to the applicant, ‘this information is non-public business intelligence that reflect the company’s internal assessment … as well as the company’s own assumptions and calculations’.
21 On those grounds, the intervener requests access to the second category of information, as set out on pages 779 to 781 of Annex A.25.
22 However, it should be noted that the intervener does not mention page 782 of that annex. Consequently, it must be considered that it does not object to the confidential treatment of the information on that page.
23 In accordance with the case-law cited in paragraphs 10 and 11 above, it is necessary first of all to examine whether the items in respect of which confidential treatment is requested can be classified as business secrets or confidential information vis-à-vis the intervener. Only where that is the case will it be necessary to balance the legitimate interests of the parties to the proceedings in accordance with the principles set out above.
24 The Court has already held that an applicant’s forecast of likely market trends cannot be confidential in nature vis-à-vis interveners (see order of 3 June 1997, Gencor v Commission, T‑102/96, EU:T:1997:82, paragraph 61 and the case-law cited).
25 The present case concerns forecasts of, inter alia, the development of the production and export of hot-rolled flat steel products to EU countries by the intervener, or by the Republic of Serbia. Such data are uncertain and, moreover, do not, by nature, reveal any information specific to the undertaking that produced those forecasts or which relates specifically to another member of the applicant or the applicant itself. On the contrary, these forecasts directly pertain to the intervener, as it rightly submitted.
26 Consequently, the weighing up of the interests involved should, in all events, lead to the disclosure of the information at issue to the intervener. Since the applicant relies on the information at issue to assert, in paragraph 26 of the application, that ‘EU markets will see a significant rise in Serbian/Chinese [hot-rolled flat] steel products’ and that ‘Serbia’s hot-rolled steel exports to [the] EU are expected to double in volumes by 2019 and almost triple by 2020’, the intervener must have access to the information relied on by the applicant in order to be able to exercise its procedural rights and effectively put forward its observations.
27 The application for confidential treatment must therefore be rejected as regards the information indicated in paragraph 21 above and granted as to the remainder.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
Hereby orders:
1. The application for confidential treatment is rejected as regards the information indicated in paragraph 21 of the present order.
2. The Registrar shall prescribe a period within which Eurofer, the European Steel Association, AISBL, is to submit a non-confidential version of the application, in accordance with paragraph 1 of this operative part.
3. The Registrar shall communicate the non-confidential version of the application, submitted by Eurofer, the European Steel Association, AISBL, in accordance with paragraphs 1 and 2 of this operative part, to HBIS Group Serbia Iron & Steel LLC Belgrade and shall prescribe a period within which the latter may submit any observations supplementing its statement in intervention lodged at the Court Registry on 13 September 2018.
4. The application for confidential treatment is granted as to the remainder.
5. The costs are reserved.
Luxembourg, 5 October 2018.