ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
21 September 2015 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑688/13,
Deloitte Consulting CVBA, established in Diegem (Belgium), represented by K. de Hornois and N. Korogiannakis, lawyers,
applicant,
v
European Commission, represented by L. Di Paolo and S. Lejeune, acting as Agents,
defendant,
supported by
PricewaterhouseCoopers EU Services EESV, established in Sint-Stevens-Woluwe (Belgium),
and
Everis Spain SLU, established in Madrid (Spain), represented by H. Gilliams and T. Baumé, lawyers,
interveners,
ACTION, first, for annulment of the decision of the Commission of 15 October 2013 taken in the context of the Call for Tenders DIGIT/R2/PO/2013/004 concerning the provision of Information and Communication Technology Advice, Benchmarking and Consulting (ABC III) (OJ 2013/S 65-108242), to place the tender of the applicant in fourth position, and to award the contract to the tenderer placed in first position and, second, for the award of damages for the harm allegedly caused by that decision,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 On 24 December 2013, the applicant, Deloitte Consulting CVBA, brought an action seeking, first, the annulment of the decision of the Commission of 15 October 2013, taken in the context of the Call for Tenders DIGIT/R2/PO/2013/004, concerning the supply of information and communication technology advice, benchmarking and consulting services (ABC III) (OJ 2013/S 65-108242) to place the tender submitted by the applicant in fourth position and to award the contract to the tenderer placed in first position and, second, the award of damages for the harm allegedly caused by that decision.
2 By document lodged at the Court Registry on 19 May 2014, the interveners, PricewaterhouseCoopers EU Services EESV and Everis Spain, SLU, applied for leave to intervene in support of the form of order sought by the Commission.
3 By document lodged at the Court Registry on 10 June 2014, the Commission did not raise any observations against the application for leave to intervene.
4 By two separate documents lodged at the Court Registry on 16 June 2014, the applicant, first, did not raise any objections to the interveners’ application for leave to intervene and, second, requested confidential treatment, with respect to the interveners, of certain information contained in the application.
5 By order of 10 September 2014, the application for leave to intervene in support of the form of order sought by the Commission was granted. At the same time, the decision on the merits of the application for confidential treatment was reserved and the communication of the procedural documents to the interveners was temporarily restricted to a non-confidential version, pending any observations by the interveners on the application for confidential treatment.
6 By document lodged at the Court Registry on 3 October 2014, the interveners challenged in part the application for confidential treatment made by the applicant.
7 On 13 November 2014, as a measure of organisation of procedure, the Court invited the applicant to substantiate its request for confidential treatment.
8 By document lodged at the Court Registry on 28 November 2014, the applicant complied with that request.
9 By document lodged at the Court Registry on 6 February 2015, the interveners challenged in part the request for confidential treatment as set out in the document lodged by the applicant at the Court Registry on 28 November 2014.
The request for confidential treatment
10 Article 144(7) of the Rules of Procedure of the General Court states:
‘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.’
11 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, to that effect, order of 4 April 1990 in Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10).
12 In that connection, first, 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 (see, to that effect, order of 22 February 2005 in Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 31).
13 Second, 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, to that effect, order in Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, cited in paragraph 12 above, paragraph 36).
14 The challenge to confidentiality brought by the interveners must relate to precise items of the procedural documents which have been obscured and indicate the reasons for which confidentiality with regard to those items should be refused. 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, to that effect, order of 15 June 2006 in Deutsche Telekom v Commission, T‑271/03, EU:T:2006:163, paragraphs 12, 14 and 15).
15 Third, in so far as an application made under Article 144(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether each of the documents and pieces of information whose confidentiality is disputed, and in relation to which an application for confidential treatment has been made, are secret or confidential (see, to that effect, orders in Hynix Semiconductor v Council, EU:T:2005:57, cited in paragraph 12 above, paragraph 38, and of 14 October 2009 in vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, EU:T:2009:402, paragraph 15).
16 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 (see, to that effect, orders in Hynix Semiconductor v Council, EU:T:2005:57, cited in paragraph 12 above, paragraph 34, and vwd Vereinigte Wirtschaftsdienste v Commission, EU:T:2009:402, cited in paragraph 15 above, paragraph 16).
17 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 (see, to that effect, orders of 18 November 2008 in Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 25, and vwd Vereinigte Wirtschaftsdienste v Commission, EU:T:2009:402, cited in paragraph 15 above, paragraph 17).
18 Fourth, 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 (see, to that effect, orders in Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, cited in paragraph 12 above, paragraph 42, and vwd Vereinigte Wirtschaftsdienste v Commission, EU:T:2009:402, cited in paragraph 15 above, paragraph 24).
19 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 (see, to that effect, orders in Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, cited in paragraph 12 above, paragraph 44, and vwd Vereinigte Wirtschaftsdienste v Commission, EU:T:2009:402, cited in paragraph 15 above, paragraph 25).
20 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 (see, to that effect, orders of 29 May 1997 in British Steel v Commission, T‑89/96, ECR, EU:T:1997:77, paragraph 24 and Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, cited in paragraph 12 above, paragraph 46).
21 In the present case the requests for confidential treatment must be examined in the light of those principles.
The request for confidential treatment of Annex A.3 to the application and certain items in Annex A.12 in respect of which the interveners have not raised any objections
22 The interveners do not raise any objections to the request for confidential treatment submitted by the applicant in respect of Annex A.3 to the application and in respect of certain items obscured in Annex A.12 to the application concerning, first, the names of the directors who represented the applicant in its communications with the Commission after the rejection of its tender and, second, the identity of the members of the applicant’s team who participated in a debriefing session with the Commission on 30 October 2013. The information in Annex A. 12 to the application has been indicated using the figures ‘1’ and ‘2’ by the applicant.
23 In the light of the principles set out in paragraphs 13 and 14 above, the request for confidential treatment for Annex A.3 to the application and for certain items obscured in Annex A.12 to the application concerning, first, the names of the directors who represented the applicant in its communications with the Commission after the rejection of its tender and, second, the identity of the members of the applicant’s team who participated in a debriefing session with the Commission on 30 October 2013 must be granted.
The request for confidential treatment of the names of the directors who represented the applicant in its communications with the Commission after the rejection of its tender in Annex A.11 to the application
24 The applicant requests confidential treatment for the names of the directors who represented it in its communications with the Commission after the rejection of its tender mentioned at the beginning of Annex A.11 to the application. It claims that that information concerns the applicant’s internal organisation and that they reveal the seniority and profile of the directors who participated in the tender process and in dealing with the rejection of the applicant’s tender.
25 As the interveners rightly state, the applicant has none the less omitted to obscure those names in the non-confidential version of Annex A.11 to the application, which was annexed to the document lodged by the applicant at the Court Registry on 28 November 2014, by which the applicant set out its request for confidential treatment. The interveners also correctly note that those names appear in a number of annexes to the application, in respect of which the applicant has not requested confidential treatment.
26 Since the applicant has itself disclosed those names to the interveners they have lost their confidentiality with respect to the interveners and no longer warrant specific protection by the Court (see, by analogy, order of 4 March 2005 in BUPA and Others v Commission, T‑289/03, ECR, EU:T:2005:78, paragraph 34).
27 Therefore, the request for confidential treatment of the directors who represented the applicant in its communications with the Commission after the rejection of its tender indicated at the beginning of Annex A.11 to the application must be rejected.
The request for confidential treatment of three paragraphs in Annex A.11 to the application
28 According to the applicant, the first of the three paragraphs on page 3 of Annex A.11 to the application that it regards as being confidential contain details concerning the technology and methodology used in the tender. That combination is a professional secret. The two other paragraphs refer to information taken into consideration in pricing the applicant’s tender. That information is also a professional secret.
29 The interveners challenge the applicant’s arguments and take the view that it is likely that those three paragraphs contain information relating to the Commission’s assessment of the applicant’s tender, both as regards the technical and financial assessment. Such information is relevant in order to determine whether the Commission gave sufficient reasons for the contested decision. It is also likely that those passages contain information which is relevant in order to assess whether applicant behaved as a diligent tenderer when it presented its offer. That issue is relevant in the context of applicant’s second plea, according to which the Commission used vague selection criteria in order to assess the comparative advantages of tenders. The interveners doubt that significant information with commercial or competitive sensitivity could be contained in a short passage consisting of three paragraphs. Therefore, they take the view that disclosure of such information is unlikely to cause any prejudice to applicant.
30 As regards the first of those three paragraphs, it must be observed that it concerns the answers given by the applicant to Questions 6.2.2 and 6.2.7 regarding the governance models of information systems. In that connection, it is admittedly true that the identification of the specific model of governance of information systems would reveal the technology and methodology used by the applicant in its tender. The specific governance model of information systems proposed by the applicant, mentioned in the second line of the second paragraph under the heading ‘Additional technical details’, is thus confidential.
31 By contrast, the remainder of that paragraph does not contain any other information which reveals the technology and methodology used by the applicant, but rather the Commission’s assessment of the answers given by the applicant to Questions 6.2.2 and 6.2.7. Therefore, the other information contained in that paragraph is not confidential.
32 A weighing up of the interests of the parties does not justify the information identifying the specific governance model of information systems being disclosed to the intervener as it is not essential to guarantee the interveners’ procedural rights. In the light of the fact that the remainder of the paragraph concerned does not contain confidential information and will thus be disclosed, the interveners will be able adequately to defend their rights.
33 As regards the last two of the three paragraphs on page 3 of Annex A.11 to the application that the applicant regards as being confidential, it must be held that they refer, in fact, to information taken into consideration by the applicant in order to price its tender. However, it must be observed that those two paragraphs do not mention any specific factors used in calculation, or expressed in figures. They set out two types of costs which the applicant has expressly stated were not included in the ‘daily rate’ which it proposed to the Commission.
34 Even if, in so doing, those paragraphs reveal, even indirectly and without any figures, confidential information on the manner in which the applicant set its prices, the fact remains that, in those two paragraphs, the Commission criticises the applicant for failing to define the precise extent of the two types of costs that it did not intend to include in the daily rate and, thereby, obstructing the comparison of the applicant’s tender with those of other tenderers as regards price offered.
35 In the light of the fact that that criticism by the Commission may be relevant for the assessment of the merits of the pleas in law raised by the applicant, it must be held that, in any event, a weighing up of the interests of the parties justifies disclosure of the information contained in the last two of the three paragraphs on page 3 of Annex A.11 to the application, considered to be confidential by the applicant, to the interveners.
36 In the light of the foregoing, it must be held that the request for confidential treatment concerning the three paragraphs on page 3 of Annex A. 11 to the application obscured by the applicant may be accepted only as regards the identification of the specific governance model of information systems proposed by the applicant, specifically the seventh word in the second line of the second paragraph under the heading ‘Additional technical details’.
The applicant’s request for confidential treatment of certain information in Annex A.12 to the application
37 As regards the other information in Annex A.12 to the application that the applicant has marked using the figures ‘3’, ‘4’, ‘5’ and ‘6’, the interveners do not accept that they are confidential. Therefore, it is for the President to rule on their confidentiality.
38 In the applicant’s view,
– the passage marked with the number ‘3’ provides information on the applicant’s internal organisation and the way it organises the performance of its contracts, and therefore, constitutes a professional secret;
– the passage marked with the number ‘4’ provides details regarding the applicant’s methodology for gathering data and as such, constitutes a professional secret;
– the passage marked with the number ‘5’ provides details about the applicant’s proposed methodologies. As it is part of the applicant’s technical solution, it constitutes a professional secret; and
– the passage marked with the number ‘6’ refers to the elements taken into consideration for the elaboration of the offer of the applicant on the price. This element is in the core of issues that constitute a professional secret.
39 The interveners take the view that it is likely that those items contain information which is relevant in order to ascertain whether the Commission discharged its duty to state reasons. They concern matters such as the method and implementation of the contract, which are fundamental to the Commission’s assessment of the applicant’s tender. It is also likely that those items contain information which is relevant for the assessment of whether the applicant behaved as a diligent tenderer when it presented its offer. That issue is relevant in the context of the second plea in law raised by the applicant, according to which the Commission used vague selection criteria in order to assess the comparative advantages of the tenders. The interveners doubt that significant information with commercial or competitive sensitivity could be contained in such brief passages. Therefore, they take the view that disclosure of such information is not capable of causing any prejudice to the applicant.
40 As regards the item marked with the number ‘3’, it must be observed that the reference to the applicant’s organisation and the way in which it organises the performance of its contracts is particularly brief in that it states that the applicant uses centres of competence (described as ‘competence centers’), without providing any information on the roles, the composition and the location of those centres. Such brief information concerning the applicant’s organisation and the way in which it organises the performance of its contracts cannot be regarded as being confidential.
41 In any event, since that item contains an assessment by the Commission which may be relevant for the assessment of the merits of the pleas in law raised by the applicant, it must be held that a weighing up of the interests of the parties justifies disclosure of that information to the interveners.
42 As regards the item marked with the number ‘4’, it must be observed that the paragraph concerned does not mention any details of the applicant’s methodology for collecting data. First, it mentions the presentation by the applicant of ‘identification of the “stakeholders”/ sources, identification and verification of data’ and, second, the fact that the applicant had ‘provided details concerning the identification of sources and the collection of stakeholders’ data’ without at the same time giving any details in that regard. In so far as the paragraph mentions that the translation had not been done by the applicant, it also does not give details of the applicant’s methodology for collecting data. It follows that the item marked with the number ’4’ does not contain confidential information.
43 In any event, given that in that item an assessment by the Commission is set out which may be relevant for the assessment of the merits of the pleas in law raised by the applicant, it must be held that a weighing up of the interests of the parties justifies disclosure of that information to the interveners.
44 As regards the item marked with the number ‘5’, first, it must be held that the first word obscured by the applicant in isolation does not refer to details of the methodology it proposes but merely sets out an assessment by the Commission. Therefore, it must be held that it does not contain confidential information.
45 Second, as regards the passage obscured by the applicant, as with the assessment set out in paragraphs 30 and 31 above, it must be held that only the specific governance model of the information systems proposed by the applicant is confidential. A weighing up of the interests of the parties does not justify the disclosure of that item identifying the applicant’s specific governance model of information systems to the intervener. By contrast, the remainder of that passage does not contain information which would reveal details of the methodology proposed by the applicant. Therefore, the other information contained in that passage is not confidential.
46 As regards the item marked with the number ‘6’, it must be observed, first of all, that it is clear from the context that the arguments raised by the applicant to show the confidentiality of that information apply both to the first and second paragraph obscured by the applicant on page 6 of Annex A.12 to the application.
47 The last part of the first of those two paragraphs refers to a choice made by the applicant which had consequences for the price it set. It follows that the first paragraph contains confidential information in so far as it clearly identities the applicant’s choice, that is to say the words between ‘they choose’ and ‘therefore the price of the offer reflects’ and the words after the second passage until the end of the first paragraph.
48 By contrast, the remainder of those two paragraphs does not contain any details concerning a choice made by the applicant which would have had an effect on the price it set and instead concerns the interpretation of a criterion specified in the call for tenders. Therefore the remainder of those two paragraphs does not contain confidential information.
49 A weighing up of the interests of the parties does not support disclosure of the confidential words identified in paragraph 47 above, since they are not necessary to guarantee the procedural rights of the interveners. In the light of the fact that the remainder of the paragraph concerned does not contain confidential information and will thus be disclosed, the interveners will be able adequately to defend their rights.
50 In light of the foregoing, it must be held that the request for confidential treatment concerning the other items in Annex A.12 to the application that the applicant has marked with the numbers ‘3’, ‘4’, ‘5’ and ‘6’ can be accepted only as regards, first, the identification of the specific governance model of the information systems proposed by the applicant, that is to say, the last word in the fourth line of the paragraph beginning ‘Concerning the Information Systems’ on page 3 of Annex A.12 to the application and the seventh word in the following line and, second, the identification of the choice made by the applicant having had an effect on the price it set, that is to say, in the second paragraph following the heading ‘Financial offer’ on page 6 of Annex A.12 to the application, the words between ‘they chose’ and ‘therefore the price of the offer reflects’ and the words after the second passage until the end of the first paragraph.
On those grounds,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The request for confidential treatment with respect to PricewaterhouseCoopers EU Service EESV and Everis Spain SLU is granted in respect of the matters set out in paragraphs 23, 36 and 50 of this Order.
2. The request for confidential treatment is rejected as to the remainder.
3. The Registrar shall prescribe a period within which Deloitte Consulting CVBA is to submit a non-confidential version of the application and its annexes in accordance with paragraph 1 of this Operative Part.
4. The Registrar shall communicate the non-confidential version of the application and its annexes submitted by Deloitte Consulting CVBA in accordance with paragraphs 1 and 3 of this Operative Part to PricewaterhouseCoopers EU Service EESV and Everis Spain, SLU and shall prescribe a period within which the latter may submit a statement in intervention.
5. Costs are reserved.
Luxembourg, 21 September 2015.