ORDER OF THE PRESIDENT OF
THE SEVENTH CHAMBER OF THE GENERAL COURT
8 September 2010 (*)
(Confidentiality)
In Case T‑421/08,
Performing Right Society Ltd, established in London (United Kingdom), represented by J. Rivas Andrés and M.-F. Nissen, lawyers,
applicant,
supported by
Sociedad General de Autores y Editores (SGAE), established in Madrid (Spain), represented by R. Allendesalazar Corcho and R. Vallina Hoset, lawyers,
intervener,
v
European Commission, represented by F. Castillo de la Torre and J. Bourke, acting as Agents,
defendant,
supported by
International Federation of the Phonographic Industry (IFPI), established in Zurich (Switzerland), represented by L. Uusitalo and L. Rechardt, lawyers,
and by
RTL Group SA, established in Luxembourg (Luxembourg),
Viasat Broadcasting UK Ltd, established in London,
CLT-UFA SA, established in Luxembourg,
Music Choice Europe Ltd, established in London,
Modern Times Group MTG AB, established in Stockholm (Sweden),
Verband Privater Rundfunk und Telemedien eV (VPRT), established in Berlin (Germany),
ProSiebenSat.1 Media AG, established in Unterföhring (Germany),
represented by M. Hansen and E. Barbier de la Serre, lawyers, and by O. Zafar, solicitor,
interveners,
APPLICATION for partial annulment of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC),
The President of the Seventh Chamber of the General Court
makes the following
Order
1 By application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 29 September 2008, the applicant, Performing Right Society Ltd, brought an action for annulment of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC).
Procedure
2 By documents lodged at the Registry of the Court on 16 and 26 January 2009 respectively, the International Federation of the Phonographic Industry (IFPI) and RTL Group SA (‘RTL’), CLT-UFA SA (‘CLT’), Music Choice Europe Ltd (‘Music Choice’), ProSiebenSat.1 Media AG (‘ProSiebenSat.1’), Modern Times Group MTG AB (‘MTG’), Viasat Broadcasting UK Ltd (‘Viasat’) and Verband Privater Rundfunk und Telemedien eV (VPRT) applied for leave to intervene in support of the form of order sought by the European Commission.
3 By document lodged at the Registry of the Court on 26 January 2009, Sociedad General de Autores y Editores (SGAE) applied for leave to intervene in support of the form of order sought by the applicant.
4 In accordance with Article 116(1) of the Rules of Procedure of the General Court, the applications for leave to intervene were served on the parties, which submitted their observations.
5 By separate letters lodged at the Registry of the Court on 24 February, 20 March and 8 April 2009, the applicant submitted applications for confidential treatment, vis-à-vis each of the interveners, of certain data and information in the application and the annexes thereto. On 25 March 2009, the applicant applied for confidential treatment, vis-à-vis each of the interveners, of certain data and information in the defence and the annexes thereto. On 6 May 2009, the applicant applied for confidential treatment, vis-à-vis each of the interveners, of certain data and information in the reply and the annexes thereto.
6 By orders of 19 October 2009, the President of the Seventh Chamber of the General Court granted SGAE, IFPI, RTL, CLT, Music Choice, ProSiebenSat.1, MTG, Viasat and VPRT leave to intervene in the present case. The decision on the merits of the applications for confidential treatment was reserved and non-confidential versions of the various procedural documents, prepared by the applicant, were sent to the interveners.
7 By letter lodged at the Registry of the Court on 9 November 2009, IFPI raised objections to the applications for confidential treatment submitted by the applicant. The other interveners did not raise any objections to those applications.
8 By letters lodged at the Registry of the Court on 22 January and 1 February 2010 respectively, SGAE and the applicant applied for confidential treatment, vis-à-vis the other interveners, of certain data and information in SGAE’s statement in intervention and in the annexes thereto and produced non-confidential versions of that statement and the annexes thereto. The interveners did not raise any objections to those applications.
The applications for confidential treatment
1. The subject-matter of the applications
9 The applicant has submitted applications for confidential treatment of certain data and information in the application, defence, reply and the annexes attached to those pleadings, concerning the following matters:
– the items deleted in paragraphs 39 and 85 of the application;
– the items deleted in paragraphs 20 to 22, 34 to 36, 69 and 70 of and in footnotes 6 and 73 to Annex A.11 to the application;
– Annexes A.8, A.10 and A.12 to the application, in their entirety;
– Annex B.6 to the defence, in its entirety;
– the items deleted in footnote 62 to the reply;
– the items deleted in Annex C.1 to the reply;
– Annexes C.4, C.5, C.6, C.7, C.13 and C.14 to the reply, in their entirety.
10 With regard to the statement in intervention submitted by SGAE, the applicant seeks confidential treatment of a part of Annex B.2 to the statement in intervention and SGAE seeks confidential treatment of the items deleted in Annex B.9 to the statement in intervention and confidential treatment of Annex B.2 to that statement in its entirety.
2. The merits of the applications for confidential treatment
Preliminary observations
11 The applications for confidential treatment were submitted on the basis of Article 116(2) of the Rules of Procedure, which provides that ‘the intervener shall receive a copy of every document served on the parties’, but that ‘[t]he President may, however, on application by one of the parties, omit secret or confidential documents’.
12 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 (order of the President of the Fourth Chamber in Case T‑383/03 Hynix Semiconductor v Council [2005] ECR II‑621, paragraph 31). The Practice Directions to Parties (OJ 2007 L 232, p. 7) repeat those requirements in paragraph 76, while the first subparagraph of Article 6(2) of the Instructions to the Registrar of the General Court (OJ 2007 L 232, p. 1) provides that an application for confidential treatment is to be made in accordance with, inter alia, the abovementioned paragraph 76.
13 Second, in so far as an application submitted under the second sentence of Article 116(2) of the Rules of Procedure is contested, the President has the task, first of all, of examining whether the documents and information the confidentiality of which is disputed are secret or confidential (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 38, and the order of the President of the Third Chamber, Extended Composition, of 13 January 2005 in Case T‑266/02 Deutsche Post v Commission, not published in the ECR, paragraph 21).
14 It is in the light of the secret or confidential nature of each of the documents and items of information covered that the requirement to which the applicant is subject to state reasons for the request of confidentiality is to be assessed. A distinction must be drawn between, on the one hand, 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, on the other hand, documents or information which may be secret or confidential, for a reason which it is for the applicant to furnish (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 34 and the case-law cited, and the order of the President of the Eight Chamber of 2 March 2010 in Case T‑336/07 Telefónica and Telefónica de España v Commission, not published in the ECR, paragraph 33).
15 Thus, the secret or confidential nature of documents or information for which no reasoning is given other than a description of their content will be accepted only in so far as such information can be regarded as secret or confidential by its very nature (order of the President of the Sixth Chamber of 18 November 2008 in Case T‑274/07 ZhejiangHarmonic Hardware Products v Council, not published in the ECR, paragraph 25).
16 Furthermore, any challenge to confidentiality must relate to precise items of the procedural documents which have been deleted and must indicate the reasons why confidentiality with regard to those items is to be refused (order of the President of the Seventh Chamber of 14 October 2009 in Case T‑353/08 vwd Vereinigte Wirtschaftsdienste v Commission, not published in the ECR, paragraph 22, and order of the President of the Fifth Chamber of 1 March 2007 in Case T‑329/04 Viasat Broadcasting v Commission, not published in the ECR, paragraph 55).
17 Third, 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 must then assess and weigh up the competing interests for each document and item of information (orders in Hynix Semiconductor v Council, paragraph 42, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 24).
18 Where confidential treatment is requested in the interests of the applicant, this assessment leads the President to weigh in the balance, for each document or item of information, the applicant’s legitimate concern to prevent serious harm to its interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders in Hynix Semiconductor v Council, paragraph 44, and Telefónica and Telefónica de España v Commission, paragraph 36).
19 In any event, an applicant for confidential treatment must, given the adversarial and public nature of the judicial proceedings, envisage the possibility that some of the secret or confidential documents or information which it has decided to place on the file may appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (order in Zhejiang Harmonic Hardware Products v Council, paragraph 22).
20 The applications for confidential treatment submitted in the present case must be considered in the light of those principles.
The applications for confidential treatment which have not been validly disputed
21 At the outset, it must be observed that an application for confidential treatment must be upheld in so far as it concerns matters which have not been disputed by an intervener or which have not been disputed expressly and precisely (order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 10 and the case-law cited).
22 The applicant’s applications for confidential treatment must therefore first be granted vis-à-vis SGAE, RTL, CLT, Music Choice, ProSiebenSat.1, MTG, Viasat and VPRT, in so far as they have not been disputed by those parties.
23 Likewise, as the applications made by the applicant and SGAE for confidential treatment in respect of the latter’s statement in intervention and the annexes thereto have not been disputed by IFPI, RTL, CLT, Music Choice, ProSiebenSat.1, MTG, Viasat and VPRT, those applications must also be granted in accordance with the case‑law cited in paragraph 21 above.
24 Next, it must be noted that IFPI did not raise any valid objections to the applications for confidential treatment in respect of the information specifically deleted in the application and Annex A.11 thereto and in the reply and Annex C.1 thereto. IFPI’s argument, which seeks to challenge in a general manner the confidential nature of the information covered by the applicant’s applications for confidential treatment, cannot be regarded as a sufficiently precise and express challenge, for the purposes of the case-law cited in paragraph 21 above, to the items deleted in the application and Annex A.11 thereto and in the reply and Annex C.1 thereto.
25 Vis-à-vis IFPI, confidential treatment should be granted, at the present stage, for the following items, to which IFPI has not raised any valid objections:
– the items deleted in paragraphs 39 and 85 of the application;
– the items deleted in paragraphs 20 to 22, 34 to 36, 69 and 70 of and in footnotes 6 and 73 to Annex A.11 to the application;
– the items deleted in footnote 62 to the reply;
– the items deleted in Annex C.1 to the reply.
The applications for confidential treatment challenged by IFPI
Arguments of the parties
26 The applicant argues, in support of each of the applications for confidential treatment, that the documents specified contain information which is by its nature confidential and constitutes business secrets, the disclosure of which would prejudice its legitimate commercial interests.
27 The applicant submits, in particular, that the relevant information in Annexes A.8, A.10 and A.12 to the application, in Annex B.6 to the defence, and in Annexes C.4, C.5, C.6, C.7, C.13 and C.14 to the reply, for which it requests confidential treatment in their entirety, is set out in sufficient detail in the various pleadings and that the remainder of those documents are of no relevance to IFPI.
28 The applicant makes clear, with regard to Annex A.10 to the application and Annex B.6 to the defence, both of which contain the reciprocal representation agreement concluded between the applicant and SABAM, that that agreement was in force until very recently, and that similar agreements were entered into with other collecting societies, one of which is still in force.
29 The applicant also indicates, in support of the application for confidential treatment of Annex A.8 to the application, which contains KODA’s response to the Commission’s statement of objections, that the author of that letter is likely to regard it as confidential, and that that letter was placed on the file only for the purpose of quoting an extract of a decision of the Danish Competition Authority, set out in the letter from KODA translated into English, which is the language of the present case. According to the applicant, the remainder of that document is of no relevance to the intervener.
30 The applicant submits, in conclusion, that Annex C.13 to the reply contains certain data which are by nature confidential, such as the details of a licensing agreement and the name of a licensee. In its view, the reply refers adequately to the existence of that licence and the remainder of the items deleted are of no relevance to the intervener.
31 IFPI has contested the applicant’s applications for confidentiality in so far as their purpose is to seek confidential treatment of certain annexes in their entirety, that is to say, Annexes A.8, A.10 and A.12 to the application, Annex B.6 to the defence and Annexes C.4, C.5, C.6, C.7, C.13 and C.14 to the reply.
32 IFPI argues that the possibility for the Court to make certain documents the subject of confidential treatment constitutes a derogation from the general principle that interveners must receive copies of all documents served on the parties. The applicant’s application for confidential treatment, it submits, is disproportionate and endangers the legitimate interests of IFPI as an intervener.
33 IFPI goes on to argue that the information covered by the applications for confidential treatment cannot be considered secret or confidential and that safeguarding of interests in the confidentiality of certain data could be guaranteed by limiting omissions to data which are in fact confidential.
34 With regard to the reciprocal representation agreements contained in Annex A.10 to the application, in Annex B.6 to the defence and in Annexes C.4, C.5, C.6, C.7 and C.14 to the reply, IFPI states that the applicant refers to these repeatedly in its pleadings and that the confidential treatment of those agreements in their entirety would jeopardise IFPI’s legitimate interests and its ability to state its case before the Court.
35 IFPI considers that, as the applicant has obscured even the title of Annex C.13 to the reply, IFPI is not in a position to evaluate the need for confidential treatment of that annex and is unable to protect its interests.
Findings of the President
36 First, it is appropriate to examine whether each of the documents and items of information the confidentiality of which is disputed is secret or confidential in nature.
37 In that regard, it must be noted that the applicant’s argument, repeatedly restated in its applications for confidential treatment, that certain information is irrelevant is of no consequence since, at the present stage of the proceedings, the relevance of the information cannot be a matter for assessment by the President. In any event, since it has been established that the intervening company has a direct and present interest in the Commission’s submissions being upheld, the view must necessarily be taken that it has every interest in submitting its observations on the questions which form the subject-matter of the pleas put forward by the applicant (see, to that effect, the order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 21).
– The application for confidentiality of Annex A.8 to the application
38 Annex A.8 to the application contains KODA’s response to the Commission’s statement of objections. It is a document internal to KODA, communicated to the Commission in the context of the administrative proceedings and not made public. That document must be regarded as being confidential in nature.
39 The balancing of the interests involved leads to the conclusion that the information contained in that document is not necessary for the exercise by IFPI of its procedural rights in the present case given that that letter concerns, in particular, KODA’s situation and its interpretation of the CISAC model contract and does not provide any information relating to the applicant’s conduct.
40 In such circumstances, the application for confidential treatment, vis-à-vis IFPI, of Annex A.8 to the application should be granted.
– The application for confidentiality of Annex A.10 to the application, of Annex B.6 to the defence, and of Annexes C.4, C.5, C.6, C.7 and C.14 to the reply
41 Annex A.10 to the application, Annex B.6 to the defence and Annexes C.4, C.5, C.6, C.7 and C.14 to the reply each contain a reciprocal representation agreement concluded between the applicant and a collecting society. Such agreements constitute commercial business secrets and are by nature confidential.
42 In order to balance, in accordance with the case-law of the General Court, the interests of the applicant and those of IFPI, the various arguments relied on by IFPI must be examined in relation to the applicant’s interests.
43 In that regard, IFPI has not set out in precise terms the reasons why it considers that it should have access to the reciprocal representation agreements. IFPI has merely argued that the applicant referred repeatedly in its written pleadings to those agreements and that refusing IFPI access to those documents would jeopardise its legitimate interests and its ability to state its case before the Court. Those arguments are expressed in general terms and do not allow the Court to determine in what context knowledge of that information is necessary to enable IFPI to exercise its procedural rights (see, to that effect, the order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 45).
44 For that reason, the applicant’s application for confidential treatment with regard to the reciprocal representation agreements concluded by the applicant and set out in Annex A.10 to the application, Annex B.6 to the defence and Annexes C.4, C.5, C.6, C.7 and C.14 to the reply must be granted. Consequently, IFPI has failed to put forward any arguments making it possible to determine, at the present stage of the proceedings, that it is unable to exercise its procedural rights without knowing the details of those reciprocal representation agreements.
– The application for confidentiality of Annex A.12 to the application
45 Annex A.12 to the application contains a letter addressed by the applicant to SABAM. As the applicant mentions in paragraphs 80 and 81 of the application, that letter essentially constitutes an invitation to dialogue with SABAM for the negotiation of a new reciprocal representation agreement and cannot be regarded as secret, a fortiori as the applicant itself reveals in its application the existence and purpose of that letter. In addition, that letter does not mention any information which could be regarded as secret or confidential.
46 It is also necessary to point out that the letter in question dates from 1992. In that regard, it follows from the case-law that commercial data may lose their confidential nature by virtue of their age. Confidential treatment of information may, however, exceptionally be granted to such data if it is shown that, notwithstanding their historical nature, they still constitute, in the particular case, essential elements of the commercial position of the undertaking concerned (see, to that effect, the order in Telefónica andTelefónica de España v Commission, paragraphs 68 and 69 and the case‑law cited).
47 It must be held that the applicant merely states that that letter contains information which is confidential and that the information which is not repeated in the application has no relevance for IFPI, and it does not furnish any evidence from which it can be concluded that the information contained in that letter still constitutes, in the present case, business secrets.
48 It follows that the application for confidential treatment of Annex A.12 to the application must be rejected.
– The application for confidentiality of Annex C.13 to the reply
49 Annex C.13 to the reply contains a letter described by the applicant as a ‘confidential letter’ which sets out, inter alia, the details of a licensing agreement and the name of a licensee. That information must be regarded as forming part of the applicant’s commercial business secrets and therefore as being confidential in nature.
50 The balancing of the interests involved leads to the conclusion that the information contained in that document is not necessary for the exercise by IFPI of its procedural rights. IFPI has no interest in knowing the identity of the licensee or the details of the licensing agreement as such information would provide no indication as to whether there had been a breach by the applicant of Article 81 EC and Article 53 of the EEA Agreement.
51 In addition, IFPI argues that, since the applicant even deleted the title of the letter at issue, it is unable to assess the need for confidential treatment of that document and is incapable of protecting its interests. However, by stating, in its application for confidential treatment, that Annex C.13 to the reply contained the details of a licensing agreement and the name of a licensee, the applicant adequately described the substance of that ‘confidential letter’, notwithstanding the fact that its title had been deleted.
52 In those circumstances, it must be held that IFPI has failed to justify to the requisite legal standard why it is unable to exercise its procedural rights without full knowledge of the ‘confidential letter’ contained in Annex C.13 to the reply. It is for that reason appropriate to grant the application for confidential treatment of that document.
53
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER
OF THE GENERAL COURT
hereby orders:
1. The applicant’s applications for confidential treatment, vis-à-vis Sociedad General de Autores y Editores (SGAE), are granted for the following items:
– Application: the items deleted in paragraphs 39 and 85 of the application; the items deleted in Annex A.11 (paragraphs 20 to 22, 34 to 36, 69 and 70, and in footnotes 6 and 73); and Annexes A.8, A.10 and A.12 in their entirety.
– Defence: Annex B.6 in its entirety.
– Reply: the items deleted in footnote 62; the items deleted in Annex C.1; and Annexes C.4, C.5, C.6, C.7, C.13 and C.14 in their entirety.
2. The applications for confidential treatment, vis-à-vis RTL Group SA, Viasat Broadcasting UK Ltd, CLT-UFA SA, Music Choice Europe Ltd, Modern Times Group MTG AB, Verband Privater Rundfunk und Telemedien eV (VPRT) and ProSiebenSat.1 Media AG, are granted in respect of the following items:
– Application: the items deleted in paragraphs 39 and 85 of the application; the items deleted in Annex A.11 (paragraphs 20 to 22, 34 to 36, 69 and 70, and in footnotes 6 and 73); and Annexes A.8, A.10 and A.12 in their entirety.
– Defence: Annex B.6 in its entirety.
– Reply: the items deleted in footnote 62; the items deleted in Annex C.1; and Annexes C.4, C.5, C.6, C.7, C.13 and C.14 in their entirety.
– Statement in intervention of SGAE: the items deleted in Annex B.9; and Annex B.2 it its entirety.
3. The applications for confidential treatment, vis-à-vis International Federation of the Phonographic Industry (IFPI), are granted in respect of the following items:
– Application: the items deleted in paragraphs 39 and 85; the items deleted in Annex A.11 (paragraphs 20 to 22, 34 to 36, 69 and 70, and in footnotes 6 and 73); and Annexes A.8 and A.10 in their entirety.
– Defence: Annex B.6 in its entirety.
– Reply: the items deleted in footnote 62; the items deleted in Annex C.1; and Annexes C.4, C.5, C.6, C.7, C.13 and C.14 in their entirety.
– Statement in intervention of SGAE: the items deleted in Annex B.9; and Annex B.2 in its entirety.
4. The applications for confidential treatment are rejected as to the remainder.
5. The Registrar shall ensure that non-confidential versions of the procedural documents, in conformity with paragraphs 1 to 3 of this operative part, sent by the applicant within the period set by the Registrar, are served on the interveners concerned.
6. The costs are reserved.
Luxembourg, 8 September 2010.