ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
18 April 2013 (*)
(Confidentiality)
In Case T‑191/10,
Greenwood Houseware (Zhuhai) Ltd, established in Zhuhai (People’s Republic of China),
Brabantia S&S Ltd, established in Tsimshatsui (Hong Kong),
Brabantia S&L Belgium NV, established in Overpelt (Belgium),
Brabantia Belgium NV, established in Overpelt,
Brabantia Nederland BV, established in Valkenswaard (Netherlands),
Brabantia (UK) Ltd, established in Bristol (United Kingdom), represented by E. Vermulst, and Y. van Gerven, lawyers,
applicants,
v
Council of the European Union, represented by J.-P. Hix, R. Szostak and B. Driessen, then by J.-P. Hix and B. Driessen, acting as Agents, and B. O’Connor, Solicitor,
defendant,
supported by
European Commission, represented by M. França and C. Clyne, acting as Agents,
and
Vale Mill (Rochdale) Ltd, established in Rochdale (United Kingdom), represented by G. Berrisch, lawyer, and N. Chesaites, Barrister,
interveners,
APPLICATION for annulment of Council Regulation (EU) No 77/2010 of 19 January 2010 amending Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty on imports of ironing boards originating, inter alia, in the People’s Republic of China (OJ 2010 L 24, p. 1),
THE PRE SIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Registry of the General Court on 20 April 2010, the applicants, Greenwood Houseware (Zhuhai) Ltd, Brabantia S&S Ltd, Brabantia S&L Belgium NV, Brabantia Belgium NV, Brabantia Nederland BV and Brabantia (UK) Ltd, brought proceedings for annulment of Council Regulation (EU) No 77/2010 of 19 January 2010 amending Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty on imports of ironing boards originating, inter alia, in the People’s Republic of China (OJ 2010 L 24, p. 1) (‘the contested regulation’).
2 By letter of 12 August 2010, Vale Mill (Rochdale) Ltd sought leave to intervene in the proceedings in support of the form of order sought by the European Council.
3 That application for leave to intervene was served on the parties, which submitted their written observations on that application.
4 By documents received at the Court Registry on 21 September, 12 and 20 October 2010 and 24 January 2011, the applicants requested that certain documents and information contained in their written pleadings and those of the Council should be treated as confidential vis-à-vis Vale Mill (Rochdale) if that company were granted leave to intervene. A non-confidential version of those pleadings was annexed to the requests.
5 By order of the President of the First Chamber of the General Court of 17 February 2011, the intervener, Vale Mill (Rochdale), was granted leave to intervene in support of the form of order sought by the Council.
6 By letter received at the Court Registry on 9 March 2011, the intervener contested in part the applicants’ application for confidential treatment.
The application for confidential treatment
1. Considerations of principle
7 Article 116(2) of the Rules of Procedure of the General Court provides that interveners are to receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.
8 That provision establishes the principle that interveners must be furnished with a copy of every document served on the parties and permits secret or confidential documents or information to be omitted only by way of exception (see the order of the President of the Eighth Chamber of the General Court of 2 March 2010 in Case T‑336/07 Telefónica and Telefónica de España v Commission, not published in the ECR, paragraph 26 and the case-law cited).
9 It is for the party submitting an application for confidential treatment to specify the documents or information concerned and to state, with sufficient precision, the reasons why they are to be regarded as confidential (see the order in Telefónica and Telefónica de España v Commission, paragraph 8 above, paragraph 27 and the case-law cited).
10 Where a party submits an application under the second sentence of Article 116(2) of the Rules of Procedure, the President may confine his examination to the documents and information the confidentiality of which is disputed. Therefore, a request for confidential treatment may be allowed in so far as it relates to items the confidentiality of which has not been disputed by the intervener (see, to that effect, the order of the President of the Eighth Chamber of the General Court in Case T‑108/07 Spira v Commission, not published in the ECR, paragraphs 32 and 33 and the case-law cited).
11 Where an application under the second sentence of Article 116(2) of the Rules of Procedure is contested, the President must, first of all, examine whether each of the documents and items of information the confidentiality of which is disputed, and in respect of which an application for confidential treatment has been made, is secret or confidential (see the order in Telefónica and Telefónica de España v Commission, paragraph 8 above, paragraph 32 and the case-law cited).
12 The requirement on the part of the applicant to state the reasons for the application for confidential treatment is to be assessed in light of the secret or confidential nature of each document and item of information concerned. Indeed, a distinction must be drawn between (i) information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or which is by nature confidential, such as purely internal information and (ii) other documents or information which may be secret or confidential for a reason that it is for the applicant to disclose. Therefore, the secret or confidential character 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 (see the order in Telefónica and Telefónica de España v Commission, paragraph 8 above, paragraphs 33 and 34 and the case-law cited).
13 The concept of business secrets 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 (see, to that effect, the order of the President of the Seventh Chamber of the General Court of 14 October 2009 in Case T‑353/08 vwd Vereinigte Wirtschaftsdienste v Commission, not published in the ECR, paragraph 71 and the case-law cited). 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 (see, to that effect, the order of the President of the Sixth Chamber of the General Court of 8 October 2009 in Case T‑314/06 Whirlpool Europe v Council, not published in the ECR, paragraph 37 and the case-law cited).
14 In the second place, where his examination leads him to conclude that some of the documents and information the confidentiality of which 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. Where confidential treatment is requested in the interests of the applicant, the President balances, for each document or piece of information, the applicant’s legitimate concern to prevent serious harm to his interests against the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights. In any event, the applicant 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 (see order in Telefónica and Telefónica de España v Commission, paragraph 8 above, paragraphs 35 to 37 and the case-law cited).
15 The applications for confidential treatment submitted in the present case must be examined in the light of the abovementioned principles.
2. The redacted information to which the intervener has not objected.
16 The intervener has objected to the applicants’ request for confidential treatment only in respect of Annexes A 2, A 3, A 11 to A 13 and A 15 to the application.
17 The President may, in the light of the principles set out at paragraph 10 above, confine his examination of the application for confidential treatment to those annexes to the application.
3. The request that Annex A 2 to the application be treated as confidential
18 The applicants request confidential treatment in respect of the whole of Annex A 2 to the application, with the exception of the first paragraph and the last two paragraphs of that document, on the ground that that annex contains confidential and commercially sensitive information as to the manner in which they usually run their business.
19 The intervener considers that the simple fact that a document contains business secrets does justify confidential treatment of the whole document.
20 Annex A 2 to the application contains a letter of 15 October 2009 sent by the Commission of the European Communities to the lawyers of Greenwood Houseware (Zhuhai) following verifications carried out in September and October 2009 at that company’s premises and those of the parties connected to it. That letter comprises seven paragraphs, the second paragraph containing one indented subparagraph and the third six indented subparagraphs. The second paragraph is, however, simply a partial reproduction of the third paragraph.
21 Contrary to what is claimed by the applicants, the paragraphs of this letter which they deem to be confidential do not contain solely information that is confidential and sensitive as regards the manner in which they usually run their business.
22 At paragraphs 2 to 6 and the penultimate paragraph of that letter, the Commission states, in essence, that during the course of its investigation, serious problems arose with some of the information provided in response to the anti-dumping questionnaire, which gave rise to serious doubts as to the accuracy of the notification of sales intended for export, with the result that the information submitted could not be used and it was not possible on the basis of that information to calculate the export price. The statement in paragraphs 2 and 3 of the letter that Brabantia S&S is a trading company related to Greenwood Houseware (Zhuhai) does not constitute confidential information, since it is apparent from paragraph 7 of the non-confidential version of the application. Only the name of the producer referred to in paragraph 4 of the letter must be considered to be confidential. Paragraphs 2 to 6 of that letter must therefore be disclosed to the intervener, with the exception of that name.
23 The Commission goes on to specify the nature of the problems it encountered in the six indented paragraphs contained in paragraph 3.
24 In the first indented subparagraph, the Commission identifies the producers and distributors of ironing boards. The name of the producer, other than Greenwood Houseware (Zhuhai), must be regarded as commercially sensitive information, the confidential nature of which must be recognised. The intervener’s procedural rights do not justify disclosure of that information. The information concerning the places other than China in which the ironing boards in question are produced is also confidential and the balance of interests does not, in the circumstances, lead to the conclusion that its disclosure is justified.
25 In the second indented subparagraph, the Commission sets out one of the problems disclosed by the on-the-spot verification, namely that the same numbers were used for two types of ironing board produced in parallel. Only the name of the producer other than Greenwood Houseware (Zhuhai), the number of pieces produced and the place in which they were produced may be considered to be confidential. The intervener’s procedural rights do not justify disclosure of that information. The second indented subparagraph does not otherwise contain any confidential information.
26 In the third indented subparagraph, the Commission explains the nature of the accounting problem identified by the Commission at Greenwood Houseware (Zhuhai) as a result of the verification inspection. In any event, the account of that problem does not disclose detailed information on the latter’s accounting practices capable of constituting confidential information.
27 However, in that account, the Commission provides certain information relating to Greenwood Houseware (Zhuhai)’s partners, which must be treated as confidential because it is commercially sensitive. That information is: (i) the content of line 8 between the word ‘of’ and the word ‘it’ in line 9; (ii) the percentage figure given in line 10; and (iii) the passage in line 15 between the acronym ‘PRC’ and the word ‘when’. The intervener’s procedural rights do not justify disclosure of that information.
28 In the fourth indented subparagraph, only the name of the producer referred to in line 10, the location of the distribution centre identified in line 14 and the passage in line 15 between the word ‘or’ and the end of the sentence are confidential. The intervener’s procedural rights do not justify disclosure of that information.
29 In the second sentence of the fifth indented subparagraph, the name of the third-party undertaking, the location in which the products arrive and the passage between the word ‘by’ and the word ‘company’ are to be regarded as confidential. The intervener’s procedural rights do not justify disclosure of that information.
30 Lastly, the sixth indented subparagraph does not contain any confidential information as the Commission simply sets out the consequences of the problems identified.
4. The request that Annex A 3 to the application be treated as confidential
31 According to the applicants, Annex A 3 to the application contains detailed comments and suggestions concerning the establishment of the import price which were submitted to the Commission in connection with the ‘new exporter’ review. Those comments and suggestions contain, according to the applicants, commercially sensitive figures and details concerning export and sales transactions. They constitute detailed information relating to their activities which illustrates the various methods of calculating imports and sales for the purpose of defining the export price. The applicants therefore consider that, with the exception of the introduction and part of the conclusion, Annex A 3 to the application contains purely technical information, which is sensitive from a competition perspective and was drafted in a very specific manner with a view to its submission to the Commission. The applicants are of the view that all the information in question contains business secrets of a commercial nature concerning their competitive position.
32 The intervener considers that the simple fact that a document contains business secrets does not justify the whole document being treated as confidential.
33 Annex A 3 to the application sets out the comments of Greenwood Houseware (Zhuhai)’s lawyers of 28 October 2009 on the Commission’s letter of 15 October 2009 referred to at paragraph 20 above.
34 Not all parts of the comments for which the applicants seek confidential treatment contain information that is sensitive from the point of view of competition or business secrets. That is the case with regard to the comments set out in Section I and the headings of Sections II.1, II.2 and III. That information cannot therefore be treated as confidential.
35 As regards the five paragraphs in Section II, headed ‘Possible solutions for constructing the export price’, it should be noted that the first and fourth paragraphs do not contain confidential information, other than the name of the third-party producer referred to in those paragraphs. Paragraphs 2 and 3 are confidential, since they contain information on sales and prices and therefore comprise commercially sensitive information. On the other hand, the fifth paragraph is not confidential, since it sets out in an abstract manner the method of calculation advocated by Greenwood Houseware (Zhuhai) for calculating the export price.
36 As regards Section II.1, the first sentence does not contain any confidential information, since it sets out, in an abstract fashion, a method of calculating the export price. Nor can the remainder of the section be regarded as confidential, except for the name of the third-party undertaking referred to.
37 The first three sentences of the first paragraph of Section II.2 are not confidential because they describe, in an abstract manner, a method of calculating the dumping margin. On the other hand, the remainder of that paragraph is confidential, because it contains commercially sensitive information. The second paragraph in that section is not confidential, as it refers to precedents, published in the Official Journal, whereby the Commission opted for a similar approach.
38 As regards Sections II.3 and II.5 to II.8, only the information set out after the abbreviation ‘i.e.’ in each of those sections may be regarded as confidential, because it is commercially sensitive. The part preceding that abbreviation is not confidential. The second paragraph of Section II.8 does not contain confidential information, since it sets out the solution which, in Greenwood Houseware (Zhuhai)’s view, is the most realistic.
39 Section III concerns the sale of products to one of the related undertakings. The name of the third-party undertaking referred to and the information in brackets after the number 264962 are to be regarded as confidential.
40 Lastly, with regard to footnote No 8, pertaining to the conclusion, only the numbers and the places in which the items in question were produced may be regarded as confidential information, on the basis that they are commercially sensitive.
41 A balancing of the interests of the parties does not lead to the conclusion that disclosure to the intervener of the information identified in the preceding paragraphs as confidential is justified.
5. The request that Annexes A11 and A12 to the application be treated as confidential
Preliminary observations
42 The applicants are of the view that Annexes A11 and A12 to the application, which contain internal reports prepared by their legal adviser following the verifications carried out by the Commission, are confidential by nature. According to the applicants, those reports are confidential in their entirety because they are internal company documents containing specific details of the verifications carried out by the Commission at their premises.
43 The intervener considers that the simple fact that a document contains business secrets does not justify the whole document being treated as confidential. Similarly, the simple fact that a document is a company’s internal document does necessarily mean that it contains confidential business secrets and cannot, as such, justify confidential treatment.
44 It should be noted in that regard that 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 (the order in Spira v Commission, paragraph 10 above, paragraph 76 and the case-law cited).
45 The reasons given to justify the application for confidential treatment in respect of the documents in Annexes A11 and A12 to the application are, in the present case, general and vague. The applicants claim that the reports in those annexes are confidential because they are internal company documents. However, the fact that a report was prepared for internal purposes does not mean that all the information it contains is purely internal. Only purely internal information may be regarded as confidential. Moreover, it has already been held that the minutes of a meeting between an applicant’s representatives and the Commission which was held in the course of the administrative procedure cannot be regarded as confidential in its entirety (order of the President of the Second Chamber of the General Court of 31 March 1992 in Case T‑57/91 NALOO v Commission, not published in the ECR, paragraph 11). Consequently, the application for confidential treatment in respect of the reports in Annexes A11 and A12 is not sufficiently precise.
46 However, when those documents 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 global and brief nature of the reasons given for it (see, to that effect, the order of the President of the Fourth Chamber of the General Court in Case T‑383/03 Hynix Semiconductor v Commission [2005] ECR II‑621, paragraph 33).
The request that Annex A 11 to the application be treated as confidential
47 The following must be regarded as confidential information in Annex A 11 to the application:
– information concerning production (page 2, the percentage figure referred to in paragraph 4; page 3, the percentage figures and number of pieces referred to in the first paragraph and the first word of the last sentence of the point beginning with ‘Model 2’; page 3, paragraph 2; page 3, the number in paragraph 5 referring to the number of articles; page 7, paragraph 3, second sentence; page 8, paragraph 3, first line, from ‘if’ up to ‘and’, and lines 3 and 4, from ‘that’ up to ‘no’; page 10, paragraph 5, with the exception of the first two lines; page 11, the number referred to in paragraph 2; page 11, paragraph 2, lines 5 and 6, from ‘a’ up to ‘was’; page 11, paragraph 2, line 8, up to ‘was’; page 13, paragraph 1, lines 4 and 5; page 13, paragraph 3, except the first line up to the abbreviation ‘IBs’; page 13, paragraph 4, the number of factories referred to in the first line; page 16, paragraph 4, the last two sentences; page 18, paragraph 3, the last two sentences; page 18, paragraph 4, the last two sentences; page 18, paragraph 5, the last sentence; page 19, first paragraph; page 24, first paragraph, the second sentence; page 26, first paragraph, the last three sentences; page 26, the percentage figure referred to in paragraph 2);
– information concerning costs and business strategy (page 2, paragraph 3, line 14; page 4, paragraph 4, line 9, from ‘company’ to the end of line 10; page 6, paragraph 2, the year referred to in line 6; page 7, paragraph 2, last sentence; page 7, paragraph 5, the percentage figure referred to in line 1; page 10, paragraph 3, except for the first two sentences; page 10, paragraph 4; page 11, paragraph 3, the percentage figure referred to on the first line, and lines 4 and 5, between ‘tax’ and ‘should’; page 14, paragraph 2, the percentage figure referred to on line 4; page 14, paragraph 5, second sentence; page 15, paragraph 6 and the penultimate paragraph, except for the last sentence; page 18, paragraph 2, second sentence; page 18, last paragraph, the last three sentences; page 19, paragraph 3, the last sentence; page 19, paragraph 5, the nature of the equipment referred to in lines 1 and 4 and the last two sentences; page 22, last paragraph, second sentence; page 23, paragraph 2, except for the last sentence; page 23, paragraph 3, except for the expression ‘As regards insurance’; page 23, paragraph 4, except for the first line; page 26, last paragraph except for the first two sentences and the last sentence; page 32, paragraph 4, the first three sentences and the name of the third-party undertaking referred to in that paragraph);
– the information on profit and income (page 4, last paragraph, first sentence; page 5, first paragraph, first line, except for the first two words; page 6, paragraph 4, line 2, from ‘and’ to the end of the paragraph);
– information on investments and capital inputs (page 2, paragraph 3, line 4, from ‘China’ to the end of the sentence; page 2, paragraph 3, line 7, from ‘opportunities’ to the end of the sentence on line 12; page 4, paragraph 2, the name of the entity referred to at the end of the paragraph; page 17, paragraph 3, the last five sentences; page 32, paragraph 3, the second line; item 34 on the List of Exhibits ME/IT and AD Questionnaire appended to Annex A 11);
– information on commercial relations with third parties (page 2, paragraph 3, lines 14 to 21; page 3, last paragraph, except for the first line up to ‘with’; page 4, first paragraph, the name of the undertaking referred to in the first line – that name is confidential throughout the document; page 4, paragraph 2, the name referred to at the end of the first line; page 9, paragraph 6, the names of the undertakings referred to in lines 2 to 4; page 12, the name of the supplier mentioned in paragraphs 4 and 5; page 12, paragraph 5, lines 4 to 8; page 13, the names of each of the entities mentioned in the last paragraph; page 14, the names of each of the entities mentioned in the first paragraph; page 15, paragraph 4, the nationality of the customer referred to and the first word in line 6; page 16, paragraph 3, the name of the third-party company and the last two sentences; page 20, paragraph 4, the name of the third-party company referred to and the last sentence; page 21, the names of the suppliers referred to in paragraphs 4 and 5; page 22, paragraph 2, the abbreviation in the first line and the name of the supplier; page 24, paragraph 2, the name of the supplier; page 27, paragraph 3, the name of the company referred to in the seventh line other than Greenwood Houseware (Zhuhai); page 29, paragraph 4, lines 12 to 16 up to ‘M. Janker’; page 30, paragraph 2, last sentence; page 30, the name of the third-party undertaking mentioned in paragraphs 4 and 5; page 31, the name of the third-party undertaking mentioned in paragraphs 1, 4 and 5; page 31, last paragraph, third to fifth sentences; page 32, the name of the third-party undertaking referred to in paragraphs 1 and 2; page 33, the name of the third party referred to in paragraph 1; the name of the third party mentioned in item 17 and the nationality of the customer referred to in items 18 and 27 of the List of Exhibits ME/IT and AD Questionnaire appended to Annex A 11, and the names of the third parties mentioned in the List of Exhibits: Brabantia S&S Annex I Response appended to Annex A 11);
– information on sales and exports (page 6, last paragraph, from line 2 to the end; page 7, paragraph 1; page 15, paragraph 4, last sentence; page 16, paragraph 5, the information in brackets; page 23, paragraph 6, second and third sentences; page 23, paragraph 8, second line up to ‘when’; page 25, paragraph 4, last sentence; page 25, paragraph 5, the first four words of the second line; page 28, paragraph 6, from ‘by’ to the end of the sentence; the countries referred to in item 1 of the List of Exhibits: Brabantia S&S Annex I Response appended to Annex A 11);
– information on workers’ employment conditions (page 8, penultimate paragraph, second sentence; page 8, last paragraph, lines 3 and 4);
– information on acquisitions of movable and immovable property (page 9, paragraph 3, except for the first two lines; page 9, paragraphs 4 and 5, except for the first three sentences of paragraph 4; page 14, paragraph 4);
– information on rent paid (page 16, first paragraph, line 3, from ‘made’ up to ‘on’ and the amount indicated);
– specific information on the accounting system (page 19, paragraph 6, second line, from ‘depreciation’ to the end of the paragraph; page 19, paragraph 7, second sentence; page 25, paragraph 2, the second sentence).
48 The intervener’s procedural rights do not justify disclosure of the confidential information referred to above.
The request that Annex A 12 to the application be treated as confidential
49 The following information in Annex A 12 to the application must be regarded as confidential:
– information on production (page 2, paragraph 3, second sentence; page 5, paragraph 3, the European places of production and lines 6 to 11 up to the abbreviation ‘IBs’, and line 18; page 6, the place of production referred to in the last paragraph; page 13, the numbers and percentage figures given in paragraph 2);
– information on costs (page 4, paragraph 1, lines 7 to 16, up to the abbreviation ‘MVV’; page 9, last paragraph, except for the first two sentences; page 10, first paragraph; page 10, paragraph 2, except for the first two sentences; page 10, paragraph 4, last sentence; page 10, paragraph 5, except for the first sentence; page 10, the number of pieces referred to in paragraph 6; page 11, paragraph 4, except for the first two sentences; page 11, last paragraph; page 12, paragraph 1, the amount and percentage figure referred to and the last word of the fourth line and the following line; page 12, paragraph 3, except for the first sentence; page 12, paragraph 5, except for the first two sentences; page 12, paragraph 5, the percentage figure referred to in the second sentence; page 14, paragraph 3, the last two sentences; page 14, paragraph 5, the last sentence; page 14, last paragraph, the last sentence; page 16, paragraph 1, except for the first two lines; page 16, paragraph 2, the last two sentences; page 16, last paragraph, except for the first three sentences; page 17, first paragraph; page 20, paragraph 2, except for the first and last sentences; page 20, paragraph 3, except for the first sentence; page 20, paragraph 4, the first and last sentences; page 21, paragraph 1; page 21, paragraph 2, penultimate line after ‘units’ and the last line; page 21, paragraph 4, except for the first line up to ‘costs’);
– information on sales, turnover, profits and business strategy (page 2, paragraph 2, line 4, from ‘China’ to the end of the sentence; page 2, paragraph 2, line 7, from ‘opportunities’ to the end of the sentence on line 8; page 2, paragraph 4; page 2, paragraph 5, second and third sentences; page 3, paragraph 2, except for the first line up to ‘from’; page 3, last paragraph, the figure referred to in line 5 and the last two lines of that paragraph up to the abbreviation ‘MVV’; page 5, paragraph 2, except for the first sentence; page 6, paragraph 1, the last two sentences; page 6, paragraph 4, third sentence; page 6, paragraph 5, second sentence; page 7, paragraph 1, second to fourth sentences; page 7, the percentage figure referred to in the second paragraph; page 7, the two time periods referred to in paragraph 3; page 7, paragraph 4, except for the first sentence; page 8, the geographical indication given in paragraph 2, first line; page 8, paragraph 4, the geographical indications referred to and the penultimate sentence; page 9, paragraph 3, except for the first two lines; page 11, paragraph 3, first sentence beginning with ‘Mr’, the words between ‘a’ and ‘and’; page 13, last paragraph, last sentence; page 14, first paragraph up to the end of numbered point 3; page 14, the percentage figures and figures given in paragraphs 3 and 4; page 14, paragraph 6, second, third and last lines; page 15, first paragraph, the names of the countries referred to, the word between ‘by’ and ‘part’ in line 4 and the last line; page 15, paragraph 2, the number referred to and the incoterms; page 16, paragraph 3; page 17, the figures given in paragraph 4; page 18, paragraph 2, sixth and seventh sentences; page 19, paragraph 1, the last two lines; page 19, paragraph 2, except for the first sentence; page 19, paragraph 3; page 19, the percentage figures referred to in paragraph 4; page 19, paragraph 5, the last three lines; page 20, paragraph 1, second sentence; the names of the countries mentioned in item 11 of the List of Exhibits appended to Annex A 12);
– information relating to internal organisation (the number of units referred to throughout the document; page 10, last paragraph, point 1; page 11, first paragraph, points 2 and 3; page 15, the number referred to in the last line of the last paragraph; page 19, the geographical identification given in the second line of the first paragraph);
– information on commercial relations with third parties (page 2, the name of the third party referred to in the last paragraph; page 3, the name of the third party referred to in the first paragraph – that name is confidential throughout the document; page 4, paragraph 2, lines 1 and 2, between ‘and’ and ‘The’, and the name of the third-party undertaking mentioned in that paragraph; page 6, paragraph 2, the name of the third party referred to; page 6, last paragraph, the name of the undertaking referred to in the last sentence; page 8, paragraph 3, the name of the third-party undertaking referred to; page 10, paragraph 3, the name of the undertaking mentioned and its location; page 13, paragraph 2, the information in brackets on the tenth line; page 13, paragraph 3, the name of the third-party undertaking referred to; page 15, paragraph 2, the names of the third parties mentioned; page 17, paragraph 4, the names of the companies referred to; the names of the third-party undertakings mentioned at items 6, 13, 14, 25, 27 and 29 of the List of Exhibits appended to Annex A 12);
– specific information on accounting (page 3, paragraph 3; page 19, last paragraph, line 2);
– information on competitors (page 5, last paragraph, second sentence).
50 The fact that a number of undertakings produce ironing boards, as referred to at pages 2, 3 and 6 of Annex A 12 to the application is, in principle, confidential information. However, the intervener’s procedural rights justify disclosure of that information. The intervener’s procedural rights do not, on the other hand, justify disclosure of the other confidential information identified above.
6. The request that Annex A 13 be treated as confidential
51 The applicants are of the view that Annex A 13 to the application contains commercially sensitive information concerning sales and transport flows. They therefore consider the entire content of that document to be confidential.
52 The intervener takes the view that the simple fact that a document contains business secrets does not justify the whole document being treated as confidential.
53 Annex A 13 to the application contains two documents which formed Exhibit 22 to the Commission’s report on the verifications carried out between 21 and 24 September 2009. The first of those documents is a flow chart on which different entities within the Brabantia group are linked by arrows to customers in different countries, identified in a general manner, which, according to the applicants, demonstrates the transportation of ironing boards to customers. The second of those documents contains a table in the form of an Excel spreadsheet setting out various figures which, according to the applicants, relate to the freight costs for each stage of transportation.
54 As regards the first document, since the chart illustrates the interaction between various entities within the Brabantia group and customers in different countries, it must be regarded as confidential. Those commercial relationships relate to the internal organisation of the group and are commercially sensitive. Accordingly, the entire document must be regarded as confidential. A balancing of the interests of the parties does not lead to the conclusion that disclosure of that information to the intervener is justified.
55 With regard to the second document, since the figures set out in the document relate to freight costs, it constitutes commercially sensitive information, which must be regarded as confidential. A balancing of the interests does not lead to the conclusion that that information should be disclosed to the intervener. However, the column headings and the various subheadings in the table cannot be regarded as confidential, with the exception of the numbers of units set out in the table and the geographical indications, which is internal information pertaining to the Brabantia group of companies. The intervener’s rights of defence would not appear to be affected by non-disclosure of that information.
7. The request that Annex A 15 to the application be treated as confidential
56 The applicants request that certain information contained in Annex A 15 to the application be treated as confidential. They regard the following, inter alia, as confidential:
– the number of the applicants’ companies set out in Section D.3 of Annex A 15, on the ground that it constitutes internal information pertaining to those companies;
– the names and details of Greenwood Houseware (Zhuhai)’s auditors provided in Sections F.A3 and H.6 of Annex A 15 to the application, which constitutes internal company information;
– the details regarding the applicable tax rate referred to in Section G.2(b), which is internal company information.
57 The intervener does not accept that any part of Annex A 15 to the application is confidential. It considers that the simple fact that a document is an internal company document does not necessarily mean that it contains business secrets and does not, therefore, as such, warrant confidential treatment.
58 As regards the number of the applicants’ companies set out in Section D.3 of Annex A 15 to the application, it should be noted that the request for confidential treatment does not relate to the entire document and that, prima facie, that information constitutes purely internal information pertaining to the Brabantia group. The intervener’s rights of defence would not appear to be affected by non-disclosure of that information. There is therefore no need to disclose that information to the intervener.
59 With regard to the names and details of Greenwood Houseware (Zhuhai)’s auditors for the financial years 2007 and 2008 set out in Section F.A.3 of Annex A 15 to the application, that cannot be regarded as purely internal information pertaining to that company. Indeed, given that their task is to carry out an independent audit of the company’s accounts, the identity of the auditors cannot be regarded as purely internal information pertaining to the company in question. That information cannot therefore be regarded as confidential.
60 As regards the name, title and affiliation of the person who made the statement at Section H.6 of Annex A 15 to the application, it should be observed that that person is not a member of the applicants’ group of companies. Moreover, that person is referred to for the purpose of attesting to the veracity of the statement that Greenwood Houseware (Zhuhai) is not subject to any restrictions on the distribution and repatriation of profits or the repatriation of capital invested. That is not, therefore, purely internal information. It cannot, as a consequence, be treated as confidential, as requested by the applicants.
61 Lastly, with regard to the applicable tax rate referred to in Section G.2(b) of Annex A 15 to the application, it should be observed that that section sets out the tax rates applied to the applicants’ factory situated in one of China’s Special Economic Regions. Those tax rates are set by the competent authorities and do not therefore constitute information that is purely internal and specific to a company. The response given at Section G.2(b) of Annex A 15 to the application cannot therefore be regarded as confidential.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment vis-à-vis Vale Mill (Rochdale) Ltd is upheld in respect of the information referred to at paragraphs 22 to 30, 34 to 41, 47, 49, 54 and 58 of this order.
2. The application for confidential treatment is dismissed as to the remainder.
3. The Registrar shall serve on Vale Mill (Rochdale) a non-confidential version of the procedural documents consistent with point 1 of this operative part, to be provided by Greenwood Houseware (Zhuhai) Ltd, Brabantia S&S Ltd, Brabantia S&L Belgium NV, Brabantia Belgium NV, Brabantia Nederland BV and Brabantia (UK) Ltd, within the period prescribed by the Registrar.
4. A period shall be prescribed within which Vale Mill (Rochdale) is to submit its written observations.
5. Costs are reserved.
Luxembourg, 18 April 2013.