ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER, EXTENDED COMPOSITION, OF THE GENERAL COURT
14 December 2018 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑778/16,
Ireland, represented initially by E. Creedon and K. Duggan and A. Joyce, subsequently by K. Duggan, M. Browne and A. Joyce, and last by K. Duggan, M. Browne, J. Quaney and A. Joyce, acting as Agents, and by P. Baker QC, S. Kingston, C. Donnelly, and B. Doherty, Barristers-at-Law, P. Gallagher, D. McDonald, M. Collins, Senior Counsel, and A. Goodman, Barrister,
applicant,
supported by
Grand Duchy of Luxembourg, represented by D. Holderer, acting as Agent, and by D. Waelbroeck and S. Naudin, lawyers,
intervener,
v
European Commission, represented by P.J. Loewenthal and R. Lyal, acting as Agents,
defendant,
supported by
Republic of Poland, represented by B. Majczyna, acting as Agent,
intervener,
APPLICATION under Article 263 TFEU seeking the annulment in part of Commission Decision (EU) 2017/1283 of 30 August 2016 State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (OJ 2017 L 187, p. 1),
THE PRESIDENT OF THE SEVENTH CHAMBER, EXTENDED COMPOSITION, OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Registry of the General Court on 9 November 2016, Ireland requested the Court to annul Decision (EU) 2017/1283 of the European Commission of 30 August 2016 on State aid SA. 38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (OJ 2017 L 187, p. 1) (‘the contested decision’).
2 By letter lodged at the Court Registry on 20 March 2017, the Grand Duchy of Luxembourg applied for leave to intervene in support of the form of order sought by Ireland.
3 By letter lodged at the Court Registry on 30 March 2017, the Republic of Poland 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 26 April 2017, Ireland made, in accordance with Article 144(2) of the Rules of Procedure of the General Court, an application for confidential treatment vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland for certain material contained in the application, in the defence and in their respective annexes (‘the application for confidential treatment’).
5 Ireland, in consequence, lodged at the Court Registry non-confidential versions of the application, of the defence and of their annexes.
6 By order of 19 July 2017, the President of the Seventh Chamber, Extended Composition, of the General Court granted the Grand Duchy of Luxembourg and the Republic of Poland leave to intervene.
7 In accordance with Article 144(2) of the Rules of Procedure, that order, as a provisional measure, restricted the communication of documents to the non-confidential versions produced by Ireland, pending the submission of any observations from the interveners on the application for confidential treatment.
8 By document lodged at the Court Registry on 6 September 2017, the Grand Duchy of Luxembourg stated that it had no objections to the application for confidential treatment.
9 By document lodged at the Court Registry on 11 September 2017, Republic of Polandchallenged in part the application for confidential treatment for certain material in the application, in the annexes thereto and in an annex to the defence.
10 By document lodged at the Court Registry on 26 November 2018, Ireland withdrew its application for confidential treatment vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland for certain material included in the contested decision, attached as Annex A.1 to the application. Consequently, Ireland lodged a new, non-confidential version of that annex.
The application for confidential treatment
11 In order to examine the application for confidential treatment submitted by Ireland, as reconsidered on 26 November 2018, it is appropriate, first, to recall the points of principle concerning the treatment of applications for confidentiality, second, to indicate the subject matter of the application for confidential treatment submitted by Ireland, third, to indicate the material whose confidentiality has been challenged before, fourth, carrying out the assessment of that material.
Points of principle
12 According to Article 144(7) of the Rules of Procedure 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 [of that article]’.
13 That provision lays down the principle that interveners are to receive a copy of every procedural document served on the parties and permits only by way of derogation that certain secret or 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).
14 In that regard, 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).
15 The examination of the merits of the application for confidential treatment cannot be conducted vis-à-vis the parties granted leave to intervene which have not objected to the application and which, as a consequence, have by implication waived the right to challenge the confidentiality of the information concerned (see, to that effect, orders of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 12 and the case-law cited, and of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, point 20).
16 When a party makes an application under Article 144(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 (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 13 and the case-law cited).
17 In that context, the challenge to confidentiality brought by the interveners must relate to precise items of the procedural documents which have been redacted and indicate the reasons for which confidentiality with regard to those items should be refused (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 14 and the case-law cited).
18 Therefore, a request for confidential treatment must be upheld in so far as it concerns items which have not been disputed, expressly and precisely, by the interveners (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 14 and the case-law cited).
19 In so far as an application presented 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).
20 It is with regard to the secret or confidential nature of each of those documents and pieces of information covered that the requirement for the applicant to state reasons in the application for confidential treatment must be assessed. A distinction may be drawn between, first, information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature or confidential, such as purely internal information and, second, other documents or information which may be secret or confidential, for a reason that is for the applicant to furnish (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 16, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 16).
21 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 secret or confidential by its very nature (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 17; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 17; and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 19).
22 As regards business secrets, it should be noted that that concept covers, inter alia, information of a commercial, competition-related, financial or accounting nature which is not normally available to those not directly connected with the undertaking and which cannot, due to its age, be regarded as historic. Information may in fact lose its confidential character where it is possible for the general public or specialists to have access to it. In general, data that is five or more years old is to be regarded as historic, unless there is some special interest at stake justifying the protection of its confidentiality (orders of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 13, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 18).
23 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).
24 Thus, where confidential treatment is requested in the interests of the applicant, this assessment will lead the President to weigh in the balance, for each document or piece of information, the applicant’s legitimate concern to prevent serious harm to his interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 19, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 20).
25 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 he has decided to place on the file 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).
26 In the present case, the merits of the application for confidential treatment must be examined in the light of those principles.
Subject matter of the application for confidential treatment
27 Ireland’s application for confidential treatment, as reconsidered on 26 November 2018, pertains to certain material contained in the application, in the defence and in certain annexes attached to those procedural documents.
28 First, as far as the application and its annexes are concerned, Ireland requests confidential treatment for the following items:
– the redacted items in paragraph 178 and in footnotes 136 and 250 of the application;
– the redacted items in Annexes A.1, A.3, A.4, A.12, A.13 (‘Expert Report’ and Appendix I), A.14, A.21, A.30, A.31, A.33, A.48, A.49, A.52, A.57 and A.60.
29 Second, regarding the defence and its annexes, Ireland requests confidential treatment for the following items:
– the redacted items in paragraphs 9 and 123 and in footnote 4 of the defence;
– the redacted items in Annexes B.4 and B.7;
– Annex B.5 in its entirety.
Limitation of the present order to the material the confidentiality of which is disputed
30 It should be recalled that the Grand Duchy of Luxembourg has not made objections to the application for confidential treatment. It therefore follows, in accordance with the case-law cited in paragraph 15 above, that there is no longer any need to rule on the merits of Ireland’s application for confidential treatment vis-à-vis that Member State. Therefore, the present order will be limited to examining Ireland’s application for confidential treatment vis-à-vis the Republic of Poland.
31 The Republic of Poland challenges in part the application for confidential treatment, in the light of the following elements:
– as regards the application, the redacted items in footnote 136;
– as regards the contested decision in Annex A.1 to the application:
– the redacted items in recitals 58, 97, 99, 104 (Figure 7 included), 105, 128 (only in relation to the references to what was discussed), 129 (only in relation to the references to what was discussed), 132, 137, 138, 139 (with the exception of the exact date of the telephone conference), 140, 141, 142, 143, 144 (with the exception of the exact meeting dates) and 284. The Republic of Poland also challenged the confidentiality of the elements initially redacted in recitals 12 and 136 of the contested decision, but Ireland withdrew the application for confidential treatment concerning that material (see paragraph 10 above);
– the redacted items in footnotes 20, 32, 73, 100, 104, 199, 209 (with the exception of the exact meeting date) and 239;
– as regards Annex A.12 to the application, the redacted items in paragraph 27;
– the redacted items in the document ‘Expert Report’ attached in Annex A.13 to the application;
– the redacted items in Annex A.14 to the application;
– as regards Annex A.31 to the application, the redacted items in paragraphs 19, 39, 65 and 76;
– the redacted items in Annex A.49 to the application;
– the redacted items in Annex A.52 to the application;
– the redacted items in Annex A.57 to the application;
– as regards Annex A.60 to the application, the redacted items in paragraphs 1.9, 3.6, 3.18, 3.27, 3.28, 4.14, 4.16 and 4.21 and footnotes 40, 44, 45 and 46;
– the entirety of Annex B.5 to the defence.
32 In accordance with the case-law cited in paragraphs 16 to 18 above, the President is to give a decision solely on the documents and information the alleged confidentiality of which is disputed, it being necessary to uphold Ireland’s application for confidential treatment vis-à-vis the Republic of Poland for the uncontested material.
Assessment of the material the confidentiality of which has been challenged by the Republic of Poland
33 As has been recalled in paragraphs 19 and 23 above, it is necessary, as a first step, to examine the confidential nature or otherwise of the documents and information for which confidential treatment is disputed by the Republic of Poland, then, as a second step, to weigh up the interests of Ireland and the Republic of Poland linked to the documents and information the confidential nature of which will have been found in advance.
Assessment of the confidential nature or otherwise of documents and information
34 The Court considers it appropriate to gather together the documents and information for which identical reasoning is to be applied as regards confidentiality.
– Information for which non-confidentiality must be found on account of its historic nature
35 The individual examination of the documents and information mentioned in paragraph 31 above results in a finding that certain of them are not confidential on account of their historic nature.
36 In that regard, it is necessary to state that information which has been confidential, but is five or more years old must, therefore, be regarded as historic, unless, exceptionally, the applicant for confidential treatment demonstrates that, despite its age, that information still constitutes essential elements of his commercial position or of that of the third person concerned (see orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 60 and the case-law cited; of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraph 65 and the case-law cited; and judgment of 28 January 2015, Evonik Degussa v Commission, T‑341/12, EU:T:2015:51, paragraph 84 and the case-law cited). The applicant bears the burden of proof for proving the confidentiality of the material for which it requests confidential treatment from the Court (order of 13 January 2005, Deutsche Post v Commission, T‑266/02, not published, paragraph 47).
37 Ireland requested on 26 April 2017 confidential treatment for a range of financial and business information concerning Apple Operations Europe (‘AOE’) and Apple Sales International (‘ASI’) prior to 2012, namely:
– the figures relating to the profits declared by Apple Distribution International (‘ADI’) for the years 2009, 2010 and 2011 mentioned in footnote 100 of the contested decision in Annex A.1;
– the percentage represented by the products assembled by the Irish branch of AOE of Apple’s total worldwide sales in 2011, mentioned on page 11, first paragraph, fourth sentence of the document ‘Expert Report’ attached in Annex A.13, on page 21, heading 4.3, first paragraph, third sentence of the same document attached in Annex A.13, and in paragraph 19 of the Apple document attached as Annex A.31;
– the figures relating to the turnover and operational costs of the Irish branch of ASI between 2007 and 2011 redacted in the table on page 18, paragraph 2.101, of the document ‘Expert Report’ attached in Annex A.13;
– the figures relating to the operational costs of the Irish branch of ASI for the years 2007, 2008, 2010 and 2011 mentioned in the second paragraph, from the third line, of page 19 of the document ‘Expert Report’ attached in Annex A.13;
– the figures relating to the operational costs, to the gross profits and to the net profits of the Irish branch of ASI for the years 2007 to 2011 mentioned in the table under heading 5.2, on page 24 of the document ‘Expert Report’ of Annex A.13;
– the figures relating to the total costs and to the net profits of the Irish branch of AOE for the years 2007 to 2011 mentioned in the table at the top of page 27 of the document ‘Expert Report’ attached in Annex A.13;
– the percentages corresponding to the profit level indicator ‘MTC’ of the Irish branch of AOE for the years 2004 to 2011, set out in the table at the top of page 27 of Annex A.14;
– the ‘y’ axis (percentages) of the graph entitled ‘[1991] Opinion, ex post test of outcome in FY04-FY07 (MTC)’ included on page 27 of Annex A.14 to the application.
38 The material identified in paragraph 37 above all dates five or more years from the date of Ireland’s application for confidential treatment. It must, therefore, be considered historic.
39 In accordance with the case-law cited in paragraph 36 above, it is for Ireland to provide specific reasons showing that, despite its age, that information still constitutes essential elements of the Apple group’s commercial position.
40 For all of that material, it is only claimed, in essence, that that material is, depending on the case, business secrets or confidential commercial or financial information, and that it is not accessible to the public. According to Ireland, disclosure of it would reveal, depending on the case, confidential details about Apple’s internal structure and could give competitors an insight into Apple’s financial situation. It argues that certain of it consists of expert analysis relying on Apple’s purely internal and sensitive data.
41 It is appropriate to note, however, that the reasoning put forward by Ireland is stated in overall general terms. None of the reasons put forward establishes precisely how the information identified in paragraph 37 above has remained secret by its nature, and how the disclosure of that material, despite its age, would cause further harm to the Apple group.
42 It follows that, given the absence of any specific reasons showing that disclosure of the material at issue to the Republic of Poland, notwithstanding its historic nature, would be liable to harm the Apple group’s commercial interests, confidential treatment cannot be accorded to the material mentioned in paragraph 37 above (see, to that effect, orders of 28 January 2014, Novartis Europharm v Commission, T‑67/13, not published, EU:T:2014:75, paragraph 53 and the case-law cited, and of 3 October 2014, SNCM v Commission, T‑454/13, not published, EU:T:2014:898, paragraph 25).
– Annex the confidentiality of which is requested in full
43 Ireland requests confidential treatment for Annex B.5 to the defence in its entirety.
44 In accordance with the case-law, an application for confidential treatment may only exceptionally extend to the entirety of an annexed document and confidential treatment cannot be granted in respect thereof on the basis of general and vague reasoning (see order of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraph 76 and the case-law cited; order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 44).
45 Ireland argues that Annex B.5 to the defence contains only sensitive and non-public financial information about the Apple group, which deals with matters separate to the State aid analysis set out in the contested decision the disclosure of which would cause harm to Apple.
46 It is therefore appropriate to note that the statement of reasons for the confidentiality of Annex B.5 to the defence consists solely in a description of its content.
47 As is apparent from the case-law recalled in paragraph 21 above, however, 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 secret or confidential by its very nature.
48 In the case at hand, it must be noted that Annex B.5 to the defence corresponds to a letter sent by Ireland to the Commission on 25 February 2015 under the formal investigation procedure, relating to the restructuring of the Apple group carried out at the end of 2014, changing Apple’s tax situation in Ireland. Two documents are annexed to that letter. The first corresponds to an internal note to the Irish tax administration, regarding a meeting with Apple that took place in December 2014 on the topic of the group’s restructuring. The second is an email exchanged between Apple and the Irish tax administration, regarding a telephone appointment scheduled in December 2014 concerning the group’s restructuring.
49 The information contained in the two letters attached to the letter of 25 February 2015 are purely internal information of the Apple group concerning its restructuring and changing its tax situation in Ireland. Those documents must, for that reason, be considered confidential by their nature, within the meaning of the case-law recalled in paragraph 20 above. However, the letter sent by Ireland to the Commission on 25 February 2015 is only partly confidential. It is necessary to accord confidential treatment to the fourth, sixth and seventh paragraphs, in so far as they detail the content of the documents attached to the letter, and to dismiss the application for confidentiality for the remainder. In the other paragraphs of the letter, Ireland is limited to recalling the procedure and certain legal positions, and those elements cannot be regarded as secret or confidential by their nature.
– Information for which confidentiality must be found
50 As for the elements other than those mentioned in paragraphs 37 and 48, it must be stated that they are confidential by their nature.
51 It must be noted that:
– the redacted material in paragraph 102 of Annex A.14, in paragraphs 65 and 76 of Annex A.31 to the application, in paragraphs 3.18 and 3.27 of Annex A.60 to the application, in question 14 of Annex A.52 to the application, in footnote 32 of the contested decision in Annex A.1 to the application, in paragraphs 3.28, 4.14 and 4.16 and in footnotes 44, 45 and 46 of Annex A.60 concerning the operation and internal processes of Apple and the Irish branches of AOE and ASI and is thus confidential by its nature, in accordance with the case-law recalled in paragraph 20 above;
– the redacted information in footnote 136 of the application, in recitals 58, 97, 99, 104 (Figure 7 included), 105 and in footnotes 20, 73, 104, 199 and 239 of the contested decision in Annex A.1 to the application, in recital 27 of the decision to initiate the procedure in Annex A.12 to the application, in the graphs on page 23 and at the top of page 28 of Annex A.14 to the application and in the table on page 27 of Annex A.14 (only for 2012), in paragraph 39 of Annex A.31 to the application, in paragraphs 1.9, 3.6(a), (b), (c) and (d) and 4.21(a) and footnote 40 of Annex A.60 to the application is financial and commercial information concerning the Apple Group, AOE, ASI and ADI, dating from 2012 at the earliest, which therefore comes within the ambit of business secrecy as defined in paragraph 22 above;
– the redacted material the confidentiality of which has been challenged in recitals 128, 129, 137, 138, 139, 140, 141, 142, 143, 144, 284 and in footnote 209 of the contested decision in Annex A.1 to the application, in paragraph 16 of Annex A.57 to the application, in question 13 of Annex A.49 to the application and in question 13 of Annex A.52 concerns non-public details of the restructuring carried out in the Apple group in December 2014 and must therefore be considered confidential;
– the redacted material in recital 132 of Annex A.1 to the application concerns an agreement between ADI and the Irish tax administration in 2014 and must therefore be considered confidential;
– the redacted material in questions 3(h) and 3(j) of Annex A.49 to the application concerns purely internal data of ADI, with the result that it should be considered confidential.
52 It should be stated that, regarding the material identified in paragraph 51 above which is mentioned in Annex A.60 to the application, Ireland argues that, according to Apple, even if the data are historic by their nature, it is still material essential to the group’s commercial and/or financial position.
53 It must be concluded that the entirety of the information set out in paragraphs 49 and 51 is therefore confidential.
The weighing up of the competing interests for the documents and information the confidential nature of which has been found
54 It is appropriate to proceed with the weighing up of the competing interests for the various documents and pieces of information the confidential nature of which has been found by the Court, in accordance with the case-law cited in paragraphs 23 and 24 above.
55 As regards, in the first place, the confidential data included in Annex B.5 to the defence, Ireland maintains that disclosure of that information, which would cause harm to Apple, would not assist the Republic of Poland in the exercise of its procedural rights, since the letter does not relate to the analysis as to the State aid at issue in the contested decision.
56 The Republic of Poland claims that access to the information contained in that annex would allow it to gain a greater understanding of the operation of the Apple group during the period in question and to assess the validity of the arguments which it is considering raising.
57 It should be stated that the confidential information included in Annex A.5 to the defence is, as is apparent from its description in paragraph 48 above, unrelated to the analysis of the Commission that led the latter to conclude that there was State aid. It concerns facts subsequent to the period concerned by the aid found in the contested decision, which ended on 27 September 2014, the date of the end of the final tax year of Apple concerned by the 2007 opinion. Moreover, it must be stated that that information has not been discussed by the main parties in their pleadings. In those circumstances, it must be noted that the confidential information in Annex B.5 to the defence is not necessary for the exercise by the Republic of Poland of its procedural rights.
58 It is therefore necessary to uphold in part the application for confidential treatment of Annex B.5 to the defence.
59 So far as concerns, in the second place, all the material identified as confidential in paragraphs 49 and 51 above, it is not necessary for the exercise of the procedural rights of the Republic of Poland, since that material, depending on the case, has no bearing on the matters addressed in the present proceedings, or the non-redacted material in the procedural documents is sufficient to give the Republic of Poland an understanding of the arguments of the main parties and to participate in the proceedings. The balancing of interests therefore does not require that material to be communicated to the Republic of Poland.
60 First, that is so of all the material relating to the operation and internal processes of the Apple group and of the Irish branches of AOE and ASI.
61 The Republic of Poland argues, in essence, that access to that information would enable a greater understanding of the operation of the Apple group during the period in question and the validity of its arguments to be assessed, in particular the argument concerning the distortion of competition and the effect on trade between the Member States.
62 However, that information, including that relating to the amounts of the bonuses included in the remuneration of the employees of Apple and of the Irish branches of AOE and ASI, has no bearing on the matters addressed in the present proceedings. The same is true of the information relating to the sales made by the employees receiving a sales bonus, to Apple’s management of inventory risks, to the areas of expertise of the Irish branch of AOE, to that relating to the activities of the Supply-Demand Management teams (‘SDM teams’) of the Apple group, as well as that relating to the geographic spread of the employees of the Apple group outside of the United States. That information is not crucial to the understanding by the Republic of Poland of the State aid analysis carried out by the Commission in the contested decision. Its disclosure is therefore not necessary to enable the Republic of Poland to formulate observations on the arguments raised by the main parties.
63 Accordingly, it is necessary to uphold the application for confidential treatment in respect of the following items:
– the entirety of footnote 32 of the contested decision in Annex A.1 to the application;
– the information relating to the historical model adopted by Apple in respect of inventory risk, redacted in paragraph 102 of Annex A.14;
– the data relating to the SDM teams of the Apple group, redacted in paragraph 65 of Annex A.31 to the application;
– the last sentence of paragraph 76 of Annex A.31 to the application;
– the redacted text in question 14 of Annex A.52 to the application;
– the redacted percentage in the second sentence of paragraph 3.18 of Annex A.60 to the application;
– the redacted figures in the third sentence of paragraph 3.27 of Annex A.60 to the application;
– the figures mentioned in the third sentence of paragraph 3.28 and in footnotes 44 and 45 of Annex A.60;
– the figures mentioned in the second sentence of paragraph 4.14 of Annex A.60;
– the figure mentioned in the third sentence of paragraph 4.16 of Annex A.60;
– the figure mentioned in footnote 46 of Annex A.60.
64 Second, it is also true of all the financial and commercial information concerning the Apple group, AOE and ASI from 2012 or after 2012.
65 The Republic of Poland argues, in essence, that access to the original text would enable it to gain a greater understanding of the operation of the Apple group during the period in question and to assess the validity of its arguments.
66 However, it must be considered that that information, confidential by its nature, is not directly related to the dispute. Its disclosure would cause harm to Ireland and to the Apple group, in so far as it would reveal sensitive financial and commercial information, even though the Republic of Poland has at its disposal sufficient material to enable it to understand the reasoning underpinning the positions of Ireland and the Commission, including where the exact values are replaced by ranges.
67 Accordingly, it is necessary to uphold the application for confidential treatment in respect of the following items:
– the average tax rate of AOE in the jurisdictions in which the undertaking has operated since 2007, redacted in footnote 136 of the application and in recital 104 of the contested decision in Annex A.1 to the application, the [1‑5] range proposed by Ireland being sufficiently precise to enable the Republic of Poland properly to exercise its procedural rights;
– the average tax rate of ASI in 2012 that appears in Figure 7 of the contested decision in Annex A.1 to the application, and in footnotes 199 and 239 of the same decision, the [1‑5] range proposed by Ireland being sufficiently precise to enable the Republic of Poland properly to exercise its procedural rights;
– the redacted text in the first sentence of footnote 20 of the contested decision in Annex A.1 to the application;
– the redacted figures set out in Tables 1 and 2 and in the note under Table 2 concerning ASI and AOE in recital 97 of the contested decision in Annex A.1 to the application, the ranges proposed by Ireland being sufficiently precise to enable the Republic of Poland to exercise properly its procedural rights;
– the redacted information in recital 99 and in footnote 73 of the contested decision in Annex A.1 to the application, in that they relate to ASI’s tax liability in a country other than a Member State of the European Union;
– the figures relating to 2012 that appear in Figure 7 of the contested decision in Annex A.1;
– the figures relating to the period from 25 September 2011 to 24 September 2012 mentioned in recital 105 of the contested decision in Annex A.1;
– the name of a balance sheet item and its value on the date of its transfer from ASI to ADI on 1 April 2012, mentioned in footnote 104 of the contested decision in Annex A.1;
– the element of ASI’s commercial policy redacted in recital 27 of the decision to initiate the procedure in Annex A.12 to the application;
– the figures included in the vertical axis of the graph appearing on page 23, under paragraph 96, of Annex A.14, relating to the turnover for 2004 to 2012, and to the operational costs for the years 2004 to 2012 of the Irish branch of ASI;
– the percentages corresponding to the profit level indicator ‘MTC’ of the Irish branch of AOE for 2012, set out in the table at the top of page 27 of Annex A.14;
– the redacted figures in the graph entitled ‘2007 Opinion, ex ante test of outcome in FY08-FY12 (MTC)’ at the top of page 28 of Annex A.14;
– the redacted figures in the graph entitled ‘2007 Opinion, ex post test of outcome in FY08 — FY12’ on page 28 of Annex A.14 to the application;
– the figures corresponding to the number of patents held by Apple worldwide and to the number of patent applications lodged by Apple worldwide, redacted in paragraph 39 of Annex A.31 to the application;
– the figure corresponding to the rate of increase of the operational costs of the Irish branch of ASI between the years 2009 and 2012, mentioned in the second sentence of paragraph 1.9 and in the second sentence of paragraph 4.21(a) of Annex A.60;
– the figures indicated in paragraphs 3.6(a), (b), (c) and (d) of Annex A.60 relating to the geographic allocation of ASI’s sales in 2011;
– the figure corresponding to the percentage represented by the revenues from sales of computers manufactured in Cork of Apple’s total revenues in EMEIA in 2011, mentioned in footnote 40 of Annex A.60.
68 Third, it is also the case for all the material concerning the restructuring carried out in the Apple group in December 2014 for which confidentiality has been granted.
69 Ireland argues that the information relating to the Apple group’s restructuring comes within the ambit of business secrecy. It adds that such information is not accessible to the public and reveals confidential details about Apple’s internal structure and operations.
70 The Republic of Poland claims, in essence, that access to the information relating to the restructuring process and to the internal structure and to the activities of the Apple group would allow it to gain a greater understanding of the operation of that group during the period in question and to assess the validity of its arguments.
71 However, as indicated in paragraph 57 above, the information relating to the restructuring relates to a period subsequent to the period concerned by the aid at issue in the contested decision, which ended on 27 September 2014, the date of the end of the final tax year of Apple concerned by the 2007 opinion.
72 Consequently, that information is not related to the dispute, and is therefore not necessary for the exercise, by the Republic of Poland, of its procedural rights.
73 Accordingly, it is necessary to uphold the application for confidential treatment in respect of the following items:
– the redacted information the confidentiality of which has been challenged in recitals 128, 129, 137, 138, 139, 140, 141, 142, 143, 144 and 284 of the contested decision in Annex A.1 to the application;
– the information referred to in footnote 209 of the contested decision in Annex A.1 to the application;
– the entire text of question 13 of Annex A.49 to the application;
– the redacted material in question 13 of Annex A.52 to the application;
– the redacted text in paragraph 16 of Annex A.57 to the application.
74 Fourth, it is also true of all the material concerning ADI, which is not described as having received the aid at issue in the contested decision, with the result that it is not necessary for the Republic of Poland to have access to information concerning that aid in order to exercise its procedural rights.
75 Accordingly, it is necessary to uphold the application for confidential treatment in respect of the information relating to the agreement between ADI and the Irish tax administration in 2014 redacted in recital 132 of the contested decision in Annex A.1 to the application.
76 It is also necessary to uphold the application for confidential treatment in respect of the figures from 2014 mentioned in recital 58 of the contested decision in Annex A.1 to the application, in so far as they concern ASI and ADI. The range of percentages proposed by Ireland are sufficiently precise to enable the Republic of Poland to understand the underlying information.
77 It is also appropriate to uphold the application for confidential treatment in respect of the redacted material in questions 3(h) and 3(j) of Annex A.49 to the application, in so far as it concerns ADI and every other subsidiary of the Apple group and is unrelated to the present dispute.
78 In the light of the foregoing, pursuant to Article 144(7) of the Rules of Procedure, the Republic of Poland will receive all the documents served on the main parties, with the exception of the material in respect of which confidential treatment has been granted in the present order.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER, EXTENDED COMPOSITION, OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatmentvis-à-vis the Republic of Poland is upheld in respect of the application, the defence and their annexes, except for the following items:
– the redacted material in footnote 100 of the contested decision in Annex A.1 to the application;
– the redacted items in the document ‘Expert Report’ attached in Annex A.13 to the application;
– the percentages corresponding to the profit level indicator ‘MTC’ of the Irish branch of AOE for the years 2004 to 2011, set out in the table at the top of page 27 of Annex A.14 to the application;
– the graph entitled ‘1991 Opinion, ex post test of outcome in FY04-FY07 (MTC)’ that appears on page 27 of Annex A.14 to the application;
– the percentage corresponding to year 2011 redacted in paragraph 19 of the Apple document attached in Annex A.31 to the application;
– in Annex B.5 to the defence, the letter (with the exception of the annexes) sent by Ireland to the European Commission on 25 February 2015, with the exception of the fourth, sixth and seventh paragraphs of that letter.
2. The Registrar shall set a date for Ireland to provide a non-confidential version of the application, the defence and their annexes vis-à-vis the Republic of Poland, in accordance with paragraph 1 of this operative part.
3. The Registrar shall serve the non-confidential version of the application, the defence and their annexes, submitted by Ireland in accordance with paragraphs 1 and 2 of this operative part, to the Republic of Poland and shall set a date for the latter to submit any observations supplementing its statement in intervention.
4. The costs are reserved.
Luxembourg, 14 December 2018.
E. Coulon | | M. van der Woude |
Table of contents
Procedure
The application for confidential treatment
Points of principle
Subject matter of the application for confidential treatment
Limitation of the present order to the material the confidentiality of which is disputed
Assessment of the material the confidentiality of which has been challenged by the Republic of Poland
Assessment of the confidential nature or otherwise of documents and information
– Information for which non-confidentiality must be found on account of its historic nature
– Annex the confidentiality of which is requested in full
– Information for which confidentiality must be found
The weighing up of the competing interests for the documents and information the confidential nature of which has been found