ORDER OF THE PRESIDENT OF THE COURT
17 March 2020 (*)
(Appeal — Intervention — Confidentiality — Information having been subject to confidential treatment at first instance — Information having not been subject to confidential treatment at first instance)
In Case C‑666/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 September 2019,
Changmao Biochemical Engineering Co. Ltd, established in Changzhou (China), represented by K. Adamantopoulos and P. Billiet, avocats,
applicant,
the other parties to the proceedings being:
European Commission, represented by T. Maxian Rusche and N. Kuplewatzky, acting as Agents,
defendant at first instance,
Hyet Sweet SAS, established in Gravelines (France),
intervener at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal from the Judge-Rapporteur, K. Jürimäe,
after hearing the Advocate General, E. Tanchev,
makes the following
Order
1 By its appeal, Changmao Biochemical Engineering Co. Ltd seeks to have set aside the judgment of the General Court of the European Union of 28 June 2019, Changmao Biochemical Engineering v Commission (T‑741/16, not published, EU:T:2019:454), by which the General Court dismissed its action for annulment of Commission Implementing Regulation (EU) 2016/1247 of 28 July 2016 Imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of aspartame originating in the People’s Republic of China (OJ 2016 L 204, p. 92), in so far as it concerns the applicant.
2 By separate document lodged at the Court Registry on 7 February 2020, Changmao Biochemical Engineering requests the Court to grant confidential treatment, vis-à-vis the intervener at first instance, to Annexes B.1 and B.2 to the response lodged by the European Commission on the ground that those annexes contain confidential information which is neither public nor accessible to that intervener. Changmao Biochemical Engineering observes, in that regard, that those annexes are parts of Annex A.3 to the application at first instance to which the General Court, at first instance, granted confidential treatment.
3 Annexes B.1 and B.2 to the response in effect correspond to parts of Annex A.3 to the application at first instance. Annex A.3 consisted of the request form from Changmao Biochemical Engineering to the Commission for market economy treatment (‘the form’) and 45 annexes thereto. More specifically, Annex B.1 contains the form, while Annex B.2 corresponds to one of those 45 annexes, namely Annex E.A.3.a.
4 In the third indent of paragraph 1 of the operative part of the order of 27 September 2017, Changmao Biochemical Engineering v Commission (T‑741/16, not published, EU:T:2017:700), the President of the Second Chamber of the General Court granted the application for confidential treatment vis-à-vis the intervener at first instance so far as concerns ‘the documents constituting the annexes to Annex A[.]3 to the application’. In so doing, and as is clear from paragraphs 44 to 49 of that order, the President of the Second Chamber of the General Court rejected the application for confidential treatment in so far as it concerned the form, while accepting it in so far as it concerned the 45 annexes referred to in paragraph 3 of the present order. Those annexes were therefore treated confidentially in their entirety and were not served on the intervener at first instance, whereas the form was sent to it.
5 It must be borne in mind 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 of Procedure, 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, it must be held that where, as in the present case with regard to Annex B.2, a party is requesting, in relation to 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 in relation to that same party in the proceedings at first instance, that the same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (see, to that effect, order of the President of the Court of 13 December 2016, Lundbeck v Commission, C‑591/16 P, not published, EU:C:2016:967, paragraph 5).
7 However, as regards a document, such as the form in Annex B.1 to the response, of which the intervener at first instance, in respect of whom a party requests confidential treatment thereof before the Court of Justice, had knowledge, granting confidential treatment of that document no longer serves any purpose (see, to that effect, order of the President of the Court of 7 March 2017, Council v PT Musim Mas, C‑606/16 P, not published, EU:C:2017:184, paragraph 5).
8 It follows from the foregoing that Changmao Biochemical Engineering’s request that the Court grant confidential treatment, vis-à-vis Hyet Sweet SAS, in respect of Annex B.2 to the response must be granted. Consequently, that annex, which has been given confidential treatment before the General Court in its entirety, will not be served, in the context of the present proceedings, on Hyet Sweet.
9 However, the request for confidential treatment made by Changmao Biochemical Engineering in so far as it concerns the form in Annex B.1 to the response must be rejected.
On those grounds, the President of the Court hereby orders:
1. Confidential treatment, vis-à-vis Hyet Sweet SAS, shall be granted in respect of Annex B.2 to the response, containing a document in respect of which confidential treatment was previously granted and which forms part of Annex E.A.3.a to Annex A.3 to the application at first instance of Changmao Biochemical Engineering Co. Ltd in the case which gave rise to the judgment of the General Court of the European Union of 28 June 2019, Changmao Biochemical Engineering v Commission (T‑741/16, not published, EU:T:2019:454). That annex shall not be served on Hyet Sweet.
2. The application for confidential treatment is dismissed as to the remainder.
3. The costs are reserved.
Luxembourg, 17 March 2020.
A. Calot Escobar | | K. Lenaerts |