Language of document : ECLI:EU:T:2017:700

Provisional text

ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT

27 September 2017 (*)

(Confidentiality — Challenge by an intervener)

In Case T‑741/16,

Changmao Biochemical Engineering Co. Ltd, established in Changzhou (People’s Republic of China), represented by R. Antonini, E. Monard and B. Maniatis, lawyers,

applicant,

v

European Commission, represented initially by J.-F. Brakeland and T. Maxian Rusche, and subsequently by J.-F. Brakeland, T. Maxian Rusche and N. Kuplewatzky, acting as Agents,

defendant,

supported by

Hyet Sweet SAS, represented by T. Müller-Ibold, F.-C. Laprévote and S. Branca, lawyers,

intervener,

ACTION for the annulment of Commission Implementing Regulation (EU) 2016/1247 of 28 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People’s Republic of China (OJ 2016 L 204, p. 92).

THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT

makes the following

Order

 Procedure

1        By application lodged at the Court Registry on 21 October 2016, the applicant, Changmao Biochemical Engineering Co. Ltd, brought an action for annulment of Commission Implementing Regulation (EU) 2016/1247 of 28 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People’s Republic of China (OJ 2016 L 204, p. 92) (‘the contested regulation’).

2        By document lodged at the Court Registry on 6 December 2016, Hyet Sweet SAS (‘Hyet’) sought leave to intervene in support of the form of order sought by the European Commission.

3        By letters lodged at the Court Registry on 5 January and 8 March 2017, the applicant asked that certain information in the application and in the Commission’s defence and certain annexes to those documents be subject to confidential treatment vis-à-vis Hyet if it were given leave to intervene. In that eventuality, the applicant annexed a non-confidential version of the documents concerned to its application.

4        By order of 21 March 2017, the President of the Second Chamber of the General Court granted Hyet leave to intervene in support of the form of order sought by the Commission and, in accordance with Article 144(2) of the Rules of Procedure of the General Court, provisionally restricted the disclosure of the pleadings to Hyet to a non-confidential version, pending the submission of any observations on the requests for confidential treatment submitted by the applicant.

5        By letter lodged at the Court Registry on 12 April 2014, Hyet opposed the requests for confidential treatment that had been submitted.

 The request for confidential treatment

 Subject matter of the request

6        The requests for confidential treatment submitted by the applicant in respect of Hyet concern parts of the application and of the Commission’s defence and certain annexes to those documents.

7        In the first place, in respect of the application, the applicant submitted a request for confidentiality concerning passages:

–        in paragraphs 18 and 123, concerning business information relating to its costs;

–        in paragraphs 27 and 65, concerning business information relating to certain government support that it had received;

–        in paragraph 96, concerning business information relating to its production processes, costs, use and purchases of raw materials;

–        in paragraph 122, concerning a quotation from a confidential document which also sets out business information relating to its production processes, costs, use and purchase of raw materials.

8        In the second place, in respect of the annexes to the application, the applicant submitted a confidentiality request as regards:

–        Annex A3, in its entirety, since it contains a large amount of inherently confidential information;

–        Annex A4, in its entirety, since it concerns the Commission’s disclosure in respect of the application for market economy treatment;

–        Annex A5, since it concerns the applicant’s comments on the disclosure in respect of the application for market economy treatment;

–        Annex A7, since it concerns the applicant’s presentation on the disclosure in respect of the application for market economy treatment;

–        Annex A8, in its entirety, since it concerns the Commission’s decision in respect of the application for market economy treatment;

–        Annex A10, since it concerns the applicant’s confidential comments on the Commission’s provisional decision;

–        Annex A12, since it concerns the applicant’s confidential presentation on the Commission’s provisional decision;

–        Annex A14, since it concerns the applicant’s confidential comments on the Commission’s definitive disclosure;

–        Annex A15, in its entirety, since it concerns the applicant’s confidential presentation on the Commission’s definitive disclosure;

–        Annex A19, in its entirety, since it concerns the confidential disclosure in respect of the application for market economy treatment in Case R529;

–        Annex A23, in its entirety, since it concerns inherently confidential information and it has not been disclosed by the Commission to the other interested parties in the underlying investigation;

–        Annex A24, in its entirety, since it concerns inherently confidential information and it has not been disclosed by the Commission to the other interested parties in the underlying investigation;

–        Annex A25, in its entirety, since it concerns inherently confidential information and it has not been disclosed by the Commission to the other interested parties in the underlying investigation;

–        Annex A26, in its entirety, since it concerns inherently confidential information and it has not been disclosed by the Commission to the other interested parties in the underlying investigation;

–        Annex A31, in its entirety, since it concerns the list of verification exhibits, which is inherently confidential.

9        In the third place, as regards the Commission’s defence, the applicant submitted a confidentiality request in respect of passages:

–        in paragraph 17, concerning a quotation from a confidential document also setting out business information which was not disclosed by the Commission to the other interested parties in the underlying investigation;

–        in paragraph 18, concerning inherently confidential information which was not disclosed by the Commission to the other interested parties in the underlying investigation;

–        in paragraphs 47, 91, 94 and 96, concerning business information regarding its costs.

10      In the fourth place, as regards the annexes to the Commission’s defence, the applicant submitted a confidentiality request in respect of:

–        Annex B2, in its entirety, since it concerns the confidential mission report;

–        Annex B4, in its entirety, since it concerns the confidential decision in respect of the application for market economy treatment.

11      The intervener contests expressly and specifically the requests for confidential treatment relating to paragraphs 18, 27, 65, 96, 122 and 123 of the application, Annexes A3, A4, A15, A19, A23, A24 and A26 to the application, paragraphs 17, 47, 91, 94 and 96 of the Commission’s defence and Annexes B2 and B4 to the defence.

 The merits of the requests for confidential treatment

 Basic principles

12      The requests for confidential treatment have been submitted on the basis of Article 144(7) of the Rules of Procedure of the General Court, which provides that ‘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’. The latter provides that ‘the President shall decide on the application to intervene as soon as possible, by order ... on the communication to the intervener of information which it is claimed is confidential’.

13      That provision lays down the principle that interveners are to receive a copy of every document served on the parties, and it is only by way of derogation from that principle that certain secret or confidential documents or information may be excluded from that communication (see order of 24 April 2012, Embraer and Others v Commission, T‑75/10, not published, EU:T:2012:198, paragraph 14 and the case-law cited).

14      In that regard, first, paragraph 221 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court of 18 June 2015 (OJ 2015 L 152, p. 1) provides that the party who makes an application for confidential treatment must accurately identify the particulars or passages to be excluded and state the reasons for which each of those particulars or passages is regarded as confidential. Failure to provide such information may result in the application being refused by the Court (order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 36).

15      Secondly, where a party makes an application for confidential treatment, the President of the formation of the Court is to give a decision solely on the documents and information the confidentiality of which is disputed (see order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 37 and the case-law cited).

16      The intervener’s opposition to the confidentiality sought must relate to specific matters which have been redacted in the procedural documents and must state the reasons for which 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 (see order of 5 October 2012, Orange v Commission, T‑258/10, not published, EU:T:2012:524, paragraph 21 and the case-law cited).

17      Thirdly, in so far as a request for confidential treatment is disputed, the President of the formation of the Court is required, first of all, 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 (order of 5 October 2012, Orange v Commission, T‑258/10, not published, EU:T:2012:524, paragraph 22).

18      The requirement for the applicant to state reasons for the request for confidentiality is to be assessed in the light of the secret or confidential nature of each document and item of information concerned. 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 it is for the applicant to provide (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 34, and of 5 October 2012, Orange v Commission, T‑258/10, not published, EU:T:2012:524, paragraph 23).

19      Therefore, the secret or confidential nature of the documents or information for which no reasoning is given other than a description of their content, will be accepted only in so far as that information can be considered 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, and of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, not published, EU:T:2009:402, paragraph 17).

20      Fourthly, where his examination leads him to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President of the formation of the Court is then to assess and weigh up the competing interests, for each document and piece of information (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 42, and of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, not published, EU:T:2009:402, paragraph 24).

21      Thus, where confidential treatment is requested in the interests of the applicant, the President of the formation of the Court weighs up, 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, and of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, not published, EU:T:2009:402, paragraph 25).

22      In any event, an applicant for confidential treatment 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 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 them (order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 46).

23      The requests for confidential treatment in the present case will be examined in the light of those principles.

 The information for which confidential treatment was requested and against which no objection has been raised

24      It must be noted that the intervener, in its observations on the requests for confidential treatment made by the applicant, has not expressly and precisely raised objections with regard to Annexes A5, A7, A8, A10, A12, A14, A25 and A31 to the application and paragraph 18 of the Commission’s defence.

25      It follows that, in accordance with the case-law referred to in paragraphs 15 and 16 above, the request for confidential treatment must be granted for those annexes to the application and that paragraph of the Commission’s defence.

 The information for which confidential treatment was requested and against which an objection has been raised

–       The passages identified in the application

26      The applicant requests confidential treatment for certain passages in paragraphs 18, 27, 65, 96, 122 and 123 of the application. As regards the passages referred to in paragraphs 18 and 123, the applicant argues that those passages contain confidential business information concerning its costs. As to the passages referred to in paragraphs 27 and 65, the applicant argues that those passages contain confidential business information concerning state subsidies that it received. Concerning the passages referred to in paragraphs 96 and 122, the applicant argues that those passages contain confidential business information relating, inter alia, to its production processes, costs, use and purchases of raw materials.

27      The intervener maintains, in essence, concerning the passages referred to in paragraphs 18, 96, 122 and 123, that it cannot fully comprehend and oppose the applicant’s submissions if all the figures are fully redacted and no range is provided. Concerning the passages referred to in paragraphs 27 and 65, the intervener argues, in essence, that the applicant does not specify in what respect the information contained in those passages is confidential. Furthermore, the intervener argues that the applicant does not provide any non-confidential summary, thus preventing it from understanding the arguments on the merits.

28      As a preliminary point, it must be noted that the reasoning put forward by the applicant in support of its request for confidential treatment is stated in general, generic terms. The applicant merely states that the information at issue is confidential business information.

29      In that regard, it should be borne in mind that it is clear from the case-law, referred to in paragraphs 19 and 20 above, that the requirement for the applicant to state reasons is dependent on the inherently secret or confidential nature of the documents or information concerned. Thus, the secret or confidential nature of documents or information for which no statement of reasons is provided, other than a description of their content, will be accepted only in so far as that information may be considered to be inherently secret or confidential.

30      In the first place, concerning the passages referred to in paragraphs 18, 96, 122 and 123 of the application, it must be stated that the information at issue is covered by business secrecy and must consequently be regarded as inherently confidential. It must also be pointed out that in its observations the intervener has not disputed the confidential nature of that information.

31      It is still necessary to assess whether that information is, nonetheless, necessary for the exercise of the intervener’s procedural rights.

32      It is apparent from the passages referred to in paragraphs 18, 122 and 123 of the application that the information for which confidentiality is sought concerns the percentage represented by amino acids in the applicant’s total manufacturing costs. That information must be regarded as necessary for the exercise of the intervener’s procedural rights since the applicant claims in the application that the percentage found by the Commission in the contested decision is wrong and that the correct percentage is that referred to in the application. The exercise of the intervener’s procedural rights therefore implies that it needs to have access to that information for the purpose of usefully making its views on the applicant’s claim known.

33      It follows that the request for confidentiality relating to that information must be refused and the percentage represented by amino acids in the applicant’s total manufacturing costs replaced by an approximate range which deviates by 10% at most from the actual figure, allowing the intervener to understand the underlying argument.

34      It is apparent from the passage referred to in paragraph 96 of the application that the information in respect of which confidentiality is requested is information relating to production processes and the use and purchase of raw materials. That information is not required for the exercise of the intervener’s procedural rights since its redaction does not prevent the intervener from effectively disputing the infringement alleged by the applicant against the Commission.

35      It follows that the request for confidentiality in respect of that information must be upheld.

36      In the second place, concerning the passages referred to in paragraphs 27 and 65 of the application, it appears that the information contained in those passages is information relating to public subsidies received by the applicant. As the intervener points out, the applicant has not provided any reasoning in support of its application for confidentiality in respect of those passages. It should be presumed that such a document which comes from a public authority and which has as its sole purpose the payment of public aid cannot, in principle, be confidential (order of 7 May 2015, Saremar v Commission, T‑220/14, not published, EU:T:2015:320, paragraph 51). Consequently, the disclosure of that information is not, in principle, such as to adversely affect the applicant’s interests. In any event, as regards information the content of which is not inherently secret or confidential, it is for the applicant to duly state the reasons for its application, which it has not done.

37      It follows that the application for confidentiality in respect of that information must be refused.

–       The annexes to the application

38      The applicant requests confidential treatment for Annexes A3, A4, A15, A19, A23, A24 and A26 in their entirety. It submits that Annexes A3, A23, A24 and A26 contain a large amount of information which is inherently confidential. Annexes A23, A24 and A26, in addition to their inherent confidentiality, contain information that the Commission has not disclosed to other interested parties. Annexes A4 and A19 contain information on the Commission’s findings on the application for market economy treatment, which are confidential. Annex A15 contains the applicant’s confidential presentation on the Commission’s definitive disclosure on that application. That presentation was made to the Commission which has not disclosed it to other interested parties.

39      The intervener argues, in essence, concerning Annexes A15, A23, A24 and A26, that the applicant should have provided a non-confidential summary of those annexes. The intervener also points out that it is only exceptionally that the Court allows the redaction of a document in its entirety. With regard to annexes A3, A4 and A19, the intervener maintains that those documents are particularly important since one of the applicant’s main complaints is that the Commission wrongly refused to grant it market economy treatment. Therefore, only full disclosure of those documents, subject to a limited number of redactions, would enable it to examine the substance of the application.

40      In this regard, it should be recalled that an application for confidential treatment may only exceptionally extend to all of an annexed document and that confidential treatment cannot be granted to an entire annex on the basis of general, generic reasoning (see, to that effect, order of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraphs 32 and 33 and the case-law cited).

41      In the present case, it should be noted that the reasoning put forward by the applicant in support of its application for confidential treatment is formulated in a general and generic manner. The applicant merely states, in essence, that the documents at issue are inherently confidential and/or that the Commission has not disclosed them to other interested parties. The applicant has not specifically identified the data and information which actually merit confidential treatment or provided any specific reasoning in that respect.

42      In those circumstances, it is clear that the request for confidential treatment concerning the annexes in question is, in itself, insufficiently precise and reasoned.

43      However, when those annexes are examined individually, it is apparent that some of the information which they contain is confidential. Accordingly, it is necessary to rule on the request for confidential treatment of those documents, while taking account of the imprecise nature of the request relating to those documents and of the general and brief nature of the reasons given for it (order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 46; see also, to that effect, order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 33).

44      In the first place, as regards Annex A3, it should be noted that it consists of the applicant’s application form to the Commission for market economy treatment and of the 45 annexes thereto.

45      It should also be pointed out that, in the context of its observations on the request for confidential treatment, the intervener asks for disclosure of the application form only.

46      Disclosure of that document must be regarded as necessary for the exercise of the intervener’s procedural rights, since in the application the applicant complains that the Commission refused to grant it market economy treatment. The exercise of the intervener’s procedural rights therefore implies that it should be able to have access to that document in order to submit effectively its observations on that complaint.

47      It follows that the application for confidentiality for that document must be refused.

48      By contrast, the confidentiality request in respect of the annexes to the claim form must be granted in so far as, in accordance with the case-law cited in paragraphs 15 and 16 above, they have not been specifically disputed by the intervener in its observations.

49      However, it must be understood that, given that the intervener has been unable to take cognisance of the content of that form and that the applicant, in its replies in that form, refers to the content of those annexes, the confidential treatment accorded to those annexes will have effect only in so far as the intervener does not subsequently request their disclosure in order to exercise its procedural rights (see, by analogy, order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 53).

50      In the second place, as regards Annex A4, it should be noted that it contains the Commission’s findings concerning the application for market economy treatment.

51      Access to that document must be regarded as necessary for the exercise of the intervener’s procedural rights, in so far as in the application the applicant criticises the Commission for having refused to grant it market economy treatment. The exercise of the intervener’s procedural rights therefore implies that it be in a position to have access to that document for the purpose making its observations on that complaint in an effective manner.

52      However, it is apparent from that annex that only the items appearing in the points below must be considered to come under business confidentiality and to be inherently confidential.

–        1.4 (Costs of major inputs), in its entirety;

–        1.6 (Labour — business decisions), in its entirety;

–        2.2 (Depreciation of assets), in its entirety;

–        3.2 (Preferential arrangements), second paragraph, second sentence and the two tables;

–        3.3 (State support), first paragraph, second sentence.

53      The other information appearing in the Commission’s findings is not commercially sensitive information of an inherently confidential nature. Accordingly, the disclosure of that information is not, in principle, such as to adversely affect the applicant’s interests. In any event, as information which is not inherently secret or confidential is concerned, it was for the applicant to state reasons to justify its application, which it has not done.

54      It follows that the request for confidential treatment relating to that annex must be granted solely for the individual items appearing in paragraph 52 above. More specifically, the percentages in points 1.4, 1.6 and 3.3 and the figures in point 2.2 and contained in the table appearing at point 3.2 must be replaced by an approximate range which deviates at most by 10% from the actual figures, enabling the intervener to understand the underlying argument.

55      The remainder of the request for confidentiality relating to that annex is refused.

56      In the third place, concerning Annex A19, it should be noted that that annex contains the Commission’s findings concerning the applicant’s application for market economy treatment in Case R529. That document contains, inter alia, confidential information concerning the applicant as to its organisation, members and their share in the capital, costs, production processes and suppliers.

57      It is clear from the application that that document is relied on by the applicant to substantiate its claim that the Commission, by refusing to grant it market economy treatment in the present case, departed without any reasonable grounds from its previous relevant decisions, inter alia, infringing the principles of legal certainty and sound administration.

58      It follows that that document, which contains inherently confidential information, relating, inter alia, to the applicant and its organisation, members and their share in the capital, costs, production processes and suppliers, and relating to another claim by the applicant, is not necessary for the exercise of the intervener’s procedural rights, in so far as the non-disclosure of that document does not deprive it of the opportunity to effectively challenge the infringement alleged by the applicant against the Commission.

59      Moreover, it should be noted that the intervener does not explain in its observations on the request for confidential treatment why access to that document is necessary for the exercise of its procedural rights.

60      Therefore, the request for confidential treatment in respect of that annex must be upheld.

61      In the fourth place, concerning Annex A15, it should be observed that that annex contains the applicant’s presentation to the Commission, concerning its definitive findings on the claim for market economy treatment.

62      It is apparent from examination of that document that its content is identical to that of Annex A14 as regards the applicant’s confidential observations on the Commission’s definitive findings.

63      Under Annex A14, the applicant has annexed a non-confidential version, in which confidential business information concerning production processes, costs, use and purchase of raw materials has been redacted.

64      Likewise, the applicant is requested to attach a non-confidential version of Annex A15, in which the confidential business information in respect of production processes, costs, use and purchase of raw materials is redacted.

65      It follows that the request for confidentiality in respect of that annex must be refused save for the information appearing at pages 11, 12, 13, 14, 16 and 19 of the annex in respect of production processes, costs, use and purchase of raw materials.

66      In the fifth place, as regards Annexes A23, A24 and A26, it should be observed that those annexes are photographs. Annex A24 is a photograph of the applicant’s industrial plant. Annex A23 is a photograph of a label referring to the industrial plant presented in Annex A24 on which is written, according to paragraph 44 of the application, ‘temporarily out of use’. Annex A26 consists of two photographs of a table containing information concerning the documents requested by the Hearing Officer during the verification visit.

67      It is evident that the transmission of those documents is not, in principle, liable to adversely affect the applicant’s interests. In any event, as regards documents the content of which is not inherently secret or confidential, it is for the applicant to duly substantiate its request, which it has not done.

68      It follows that the request for confidentiality must be refused in respect of those documents.

–       The passages identified in the Commission’s defence

69      The applicant requests confidential treatment for the passages referred to in paragraphs 17, 47, 91, 94 and 96 of the Commission’s defence. Concerning the passage referred to in paragraph 17, the applicant argues that that passage contains a quotation from an inherently confidential document. Furthermore, that quotation describes confidential business information which has not been divulged by the Commission to other interested persons in the underlying investigation. Concerning the passages referred to in paragraphs 47, 91, 94 and 96, the applicant argues that those passages contain confidential business information concerning its costs.

70      The intervener argues, in respect of the passage referred to in paragraph 17 of the defence, that that passage contains information concerning a letter from the Commission to the applicant relating to market economy treatment which has been redacted in its entirety. Furthermore, as no relevant summary has been provided, the intervener is not in a position to understand the applicant’s allegations or the Commission’s rebuttal. Concerning the passages referred to in paragraphs 47, 91, 94 and 96 of the defence, the intervener argues, in essence, that in the absence of an approximate range, it is difficult for it to assess the differences pleaded by the applicant and by the Commission, as to, first, the price paid by the applicant for its right to use the land and the market price and, secondly, the cost of raw materials borne by the applicant.

71      In the first place, concerning the passages referred to in paragraphs 17 and 47 of the defence, it must be stated that the quotation and the percentage in question have been taken from the Commission’s decision of 15 January 2016 concerning the application for market economy treatment, submitted by the Commission as Annex B4 to its defence, the confidentiality of which is also requested in full.

72      It follows that the assessment of its confidentiality request concerning the passages referred to in those paragraphs of the defence is to be dealt with together with the confidentiality application in respect of that annex.

73      In the second place, concerning the passages referred to in paragraphs 91, 94 and 96 of the defence, it should be pointed out that the information at issue is covered by business secrecy and accordingly must be regarded as inherently confidential. It should also be stated that the intervener has not disputed the confidential nature of that information in its observations.

74      Nevertheless, it is necessary to assess whether that information is, however, necessary for the exercise of the intervener’s procedural rights.

75      It is clear from the passages referred to in paragraphs 91, 94 and 96 of the defence that the information whose confidentiality is requested is that concerning the percentage represented by amino acids in the applicant’s total manufacturing costs, referred to in paragraphs 18, 122 and 123 of the application, and in respect of which the confidentiality request has been refused. That information must be deemed necessary for the exercise of the intervener’s procedural rights, in so far as the applicant argues in the application that the percentage applied by the Commission in the contested decision is wrong and that the correct percentage is that referred to in the application. The exercise of the intervener’s procedural rights therefore necessitates that it be able to access that information for the purpose of properly making its observations on the applicant’s claim and the Commission’s rebuttal.

76      It follows that the request for confidentiality in respect of those passages must be refused and the percentage represented by amino acids in the total manufacturing costs replaced by an approximate range which deviates at most by 10% from the actual figure, allowing the intervener to understand the underlying argument.

–       The annexes to the defence

77      The applicant requests confidential treatment for Annexes B2 and B4 in their entirety on the ground that those documents are inherently confidential.

78      The intervener maintains that those documents are of particular importance since one of the applicant’s main complaints consists in stating that the Commission erred in refusing to grant it market economy treatment. Therefore, only full disclosure of those documents, subject to a limited number of redactions, would enable it to assess the substance of the application.

79      In that regard, it should be recalled that an application for confidential treatment may only exceptionally extend to the entirety of an annexed document and that confidential treatment cannot be granted to an annexed document, in its entirety, on the basis of general, generic reasoning (see, to that effect, order of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraphs 32 and 33 and the case-law cited).

80      In the present case, it should be stated that the reasoning put forward by the applicant in support of its application for confidential treatment is worded in a general and generic manner. The applicant simply states, in essence, that the documents at issue are inherently confidential. The applicant has not specifically identified the data and information which actually merits confidential treatment or provided specific reasoning in respect thereof.

81      In those circumstances, it must be concluded that the confidential treatment request concerning the annexes at issue is, in itself, insufficiently precise and reasoned.

82      However, when those annexes are examined individually, it is apparent that some of the information which they contain is confidential. Accordingly, it is necessary to rule on the request for confidential treatment of those documents, while taking account of the imprecise nature of the request relating to those documents and of the general and brief nature of the reasons given for it (order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 46; see also, to that effect, order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 33).

83      In the first place, concerning Annex B2, it should be noted that it consists of the mission report drafted by Commission officials following the verification visit to the applicant’s premises in Changzou from 26 to 28 August 2015, in the context of visits to Chinese exporting producers.

84      It is apparent from examination of that document that, first, the information contained therein concerns, inter alia, the applicant and its organisation, members and their share capital, costs, production processes and suppliers. That information must be regarded as covered by business secrecy and inherently confidential. Secondly, that document is a mission report, preliminary to and in preparation for the contested regulation, which contains information concerning the applicant that the Commission collected during exchanges that took place between its officials, who conducted the inspections at Changzhou, and the applicant. That document is therefore an internal document of the Commission.

85      It follows that such a document cannot be revealed to the intervener, save, where the exceptional circumstances of the case concerned so require, on the basis of solid evidence which it is for the intervener to provide (see order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 86 and the case-law cited), unless, and in so far as, the institution which is its author decides otherwise (order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 86). In the present case, confidentiality has been requested by the applicant without opposition by the Commission.

86      It appears on weighing up the competing interests that disclosure of that annex is not necessary for the exercise of the intervener’s procedural rights, having regard, in particular, to the grounds of the contested regulation, the pleas debated by the parties, the use made by them of the document in their pleadings and the summaries which other material in the file provides concerning the questions touched on in the document, inter alia, Annexes A3 and A4 to the application.

87      Therefore, the application for confidential treatment in respect of that annex must be upheld.

88      In the second place, as regards Annex B4, it must be observed that that document consists of a letter from the Commission of 15 January 2016, addressed to the applicant, in which it states that market economy treatment has not been granted to it. That letter also contains an annex listing the reasons why such treatment was not granted to it.

89      It should be noted that the content of Annex B4 is reproduced in part in paragraphs 17 and 47 of the defence, in respect of which confidentiality has also been requested by the applicant.

90      That annex is identical to Annex A8 to the application, in respect of which the confidentiality request was upheld, since the intervener, in its observations on the requests for confidential treatment submitted by the applicant, has not raised objections expressly and precisely with regard to that annex, as is apparent from paragraphs 24 and 25 above.

91      It follows that, in so far as the confidentiality request was upheld in respect of Annex A8, the confidentiality request concerning Annex B4 and paragraphs 17 and 47 of the defence must be upheld (see by analogy, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 51 and the case-law cited).

On those grounds,

THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT

hereby orders:

1.      The request for confidential treatment, vis-à-vis Hyet Sweet SAS, is granted in respect of the following information:

–        Annexes A4, A5, A7, A8, A10, A12, A14, A15, A19, A23, A24, A25, A26 and A31 to the application;

–        the redacted passages of paragraphs 18, 96, 122 and 123 of the application;

–        at this stage, the documents constituting the annexes to Annex A3 to the application;

–        the redacted passages of paragraphs 17, 18, 47, 91, 94 and 96 of the defence;

–        Annexes B2 and B4 to the defence.

2.      The requests for confidential treatment are refused as to the remainder.

3.      The Registrar shall set a date for the applicant to provide:

–        a version of the redacted passages from paragraphs 18, 122 and 123 of the application containing approximate ranges, which deviate at most by 10% from the actual figures, in place of the percentages in question;

–        a non-confidential version of Annex A4 containing approximate ranges, which deviate at most by 10% from the actual figures, in place of the figures and percentages in question;

–        a non-confidential version of Annex A15, including redaction of pages 11, 12, 13, 14, 16 and 19 of that annex;

–        a version of the redacted passages of paragraphs 91, 94 and 96 of the defence containing approximate ranges, which deviate at most by 10% from the actual figures, in place of the percentages in question.

4.      The costs are reserved.


Luxembourg, 27 September 2017.


E. Coulon

 

      M. Prek

Registrar

 

      President


*      Language of the case: English.