Provisional text
ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
30 January 2017 (*)
(Confidentiality — Disputed by an intervener)
In Case T‑451/13,
Syngenta Crop Protection AG, established in Basel (Switzerland),
Syngenta Crop Protection NV, established in Brussels (Belgium),
Syngenta Bulgaria EOOD, established in Sofia (Bulgaria),
Syngenta Czech s.r.o., established in Prague (Czech Republic),
Syngenta Crop Protection A/S, established in Copenhagen (Denmark),
Syngenta France SAS, established in Saint-Sauveur (France),
Syngenta Agro GmbH, established in Maintal (Germany),
Syngenta Hellas AEBE — Proionta Fytoprostasias & Sporoi, established in Athens (Greece),
Syngenta Növényvédelmi kft, established in Budapest (Hungary),
Syngenta Crop Protection SpA, established in Milan (Italy),
Syngenta Crop Protection BV, established in Bergen op Zoom (Netherlands),
Syngenta Polska sp. z.o.o., established in Warsaw (Poland),
Syngenta Agro S.R.L., established in Bucharest (Romania),
Syngenta Slovakia s.r.o., established in Bratislava (Slovakia),
Syngenta Agro, SA, established in Madrid (Spain),
Syngenta UK Ltd, established in Cambridge (United Kingdom),
represented initially by D. Waelbroek, D. Slater and I. Antypas, and then by D. Waelbroek and I. Antypas, lawyers,
applicants,
supported by
Association générale des producteurs de maïs and autres céréales cultivées de la sous-famille des panicoïdées (AGPM), represented by L. Verdier, lawyer,
The National Farmers’ Union (NFU), represented by N. Winter, Solicitor and H. Mercer QC,
Association européenne pour la protection des cultures (ECPA), represented by D. Abrahams, Barrister, and I. de Seze and E. Mullier, lawyers,
Rapool-Ring GmbH Qualitätsraps deutscher Züchter, established in Isernhagen (Germany), represented initially by C. Stallberg and U. Reese, then by U. Reese and J. Szemjonneck, lawyers,
European Seed Association (ESA), represented initially by P. de Jong, P. Vlaemminck and B. Van Vooren, then by P. de Jong, K. Claeyé and E. Bertolotto, lawyers
Agricultural Industries Confederation Ltd, represented initially by P. de Jong, P. Vlaemminck and B. Van Vooren, then by P. de Jong, K. Claeyé and E. Bertolotto, lawyers,
interveners,
v
European Commission, represented by P. Ondrůšek and G. von Rintelen, acting as Agents,
defendant,
supported by
Kingdom of Sweden, represented by A. Falk, C. Meyer-Seitz, U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, acting as Agents,
Union nationale de l’apiculture française (UNAF), represented by B. Fau, lawyer,
Deutscher Berufs- und Erwerbsimkerbund eV,
Österreichischer Erwerbsimkerbund,
represented by A. Willand, lawyer,
Pesticide Action Network Europe (PAN Europe),
Bee Life European Beekeeping Coordination (Bee Life),
Buglife — The Invertebrate Conservation Trust,
represented by B. Kloostra, lawyer,
Stichting Greenpeace Council, represented by B. Kloostra, lawyer,
interveners,
APPLICATION seeking, first, annulment of Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ 2013 L 139, p. 12) and, secondly, damages,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 On 14 August 2013 Syngenta Crop Protection AG and the other applicants brought an action seeking, first, annulment of Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ 2013 L 139, p. 12) (‘the contested measure’) and, secondly, damages for the harm allegedly caused by the contested measure.
2 By letter of 28 September 2016, as a measure of organisation of procedure, the Court put questions to the main parties, who replied, in writing, within the period set by the Court.
3 By letter lodged at the Registry of the Court on 14 November 2016, the applicants requested that, in accordance with Article 144(2) of the Rules of Procedure of the Court, certain confidential information in their replies to the written questions of the Court should not be disclosed to the interveners. The applicants produced, for the purpose of that disclosure, a non-confidential version of that document.
4 By letter lodged at the Registry of the Court on 5 January 2017, Stichting Greenpeace Council, Pesticide Action Network Europe (PAN Europe), Bee Life European Beekeeping Coordination (Bee Life) and Buglife — The Invertebrate Conservation Trust submitted objections to the request for confidential treatment made by the applicants.
The request for confidential treatment
5 Under Article 144(5) and (7) of the Rules of Procedure, if an application to intervene is granted, the intervener is to receive a copy of every procedural document served on the main parties save, where applicable, for confidential information excluded from such communication by decision of the President, at the request of one of the main parties.
6 Those provisions lay 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 confidential documents or information may be withheld from disclosure (see, to that effect, orders of 4 April 1990, Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10; of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 18; and of 18 November 2008, Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 17).
7 In that regard, it should be borne in mind, first, that the party who makes an application for confidential treatment is required to specify the documents or information covered and to duly state the reasons why they are claimed to be confidential (see order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 31 and the case-law cited). The Practice Rules for the implementation of the Rules of Procedure of the General Court (OJ 2015 L 152, p. 1) restate those requirements in paragraph 221, according to which ‘[a]n application for confidential treatment must accurately identify the particulars or passages to be excluded and state the reasons for which each of those particulars or passages is regarded as confidential.’
8 Second, when a party makes an application for confidential treatment under Article 144(5) 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 of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 36). In so far as an application is not contested, there is no need to give a decision on it.
9 Third, in so far as an application for confidential treatment brought under Article 144(5) of the Rules of Procedure is contested, the President is required, first of all, to examine whether the documents and information the confidentiality of which is disputed, and for which an application for confidential treatment has been made, are confidential (see, to that effect, orders of 22 February 2005, HynixSemiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 38; of 11 June 2007, Deutsche Post v Commission, T‑266/02, EU:T:2007:166, paragraph 21; and of 18 November 2008, Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 19).
10 Where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are confidential, the President is required to go on to assess and weigh up the competing interests, for each document and piece of information (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 42, and of 18 November 2008, Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 20).
11 Last, it must be borne in mind that the parties and interveners in proceedings are in any event to use the procedural documents of which copies are sent to them solely for the purpose of exercising their respective procedural rights (judgment of 17 June 1998, Svenska Journalistförbundet v Council, T‑174/95, EU:T:1998:127, paragraph 137; order of 5 August 2003, Glaxo Wellcome v Commission, T‑168/01, not published in the ECR, paragraph 28; and order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 47).
12 In the present case, it should be noted, first, that Stichting Greenpeace Council, PAN Europe, Bee Life and Buglife are the only interveners to have raised objections to the application for confidential treatment. In contrast, the other parties granted leave to intervene in the proceedings, either in support of the form of order sought by the applicants or that sought by the Commission, have not objected to the application and, as a consequence, have by implication waived the right to challenge the confidentiality of Annex C to the applicants’ replies to the written questions of the Court, containing an unpublished study, recently commissioned by them. It follows that there is no need to examine whether the applicants’ application is well founded in regard to those interveners (see, to that effect, order of 4 March 2005, BUPA and Others v Commission, T‑289/03, ECR, EU:T:2005:78, paragraph 11) and that the present order must be confined to examining that application with regard to Stichting Greenpeace Council, PAN Europe, Bee Life and Buglife.
13 The request for confidential treatment submitted by the applicants relates to the unpublished study in question. The applicants claim, in that regard, that they want to prevent the untimely publication of that study, which might be the result of disclosure to the interveners in the present proceedings.
14 Stichting Greenpeace, PAN Europe, Bee Life and Buglife contend, in essence, that the applicants have failed to specify how disclosure of the study at issue could cause serious harm to them, and for that reason it should be concluded that the study does not contain any confidential information. At the very least, parts of the study at issue which contain publicly available information or studies cannot be characterised as confidential and should therefore be disclosed to the interveners. Further, since a request extending to the entirety of a document ought to be exceptional and the applicants have given no reason for such a request, the request should also be dismissed for that reason. Last, confidential treatment of the study at issue would infringe the interveners’ procedural rights. Since the applicants rely on scientific and factual information in order to challenge the contested measure, it is essential that the interveners have access to that information in order to be able to discuss its quality and relevance for the contested measure.
15 It must be observed, in that regard, that, even if the information contained in the unpublished study commissioned by the applicants were to be classified as confidential, the conclusion to be reached after weighing the competing interests would be that that study appears necessary for the exercise of the interveners’ procedural rights.
16 The applicants rely on that study in order to demonstrate the alleged low risk to honeybees from exposure to thiamethoxam under field conditions of use.
17 It is clear that that question goes to the heart of the dispute in the present case, in that the Court’s answer to it will be decisive for the assessment of the lawfulness of all or part of the contested measure and, consequently, for the outcome of the applicants’ action. Accordingly, the confidential treatment of the study at issue would prevent the interveners from commenting effectively on questions essential to the outcome of proceedings and could therefore impede the exercise of their procedural rights.
18 Consequently, the Court must dismiss the application for confidential treatment of Annex C to the applicants’ replies to the questions of the Court.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment made by Syngenta Crop Protection AG and other applicants of 14 November 2016 with respect to Annex C to their replies to the questions of the Court is dismissed, with regard to Stichting Greenpeace Council, Pesticide Action Network Europe (PAN Europe), Bee Life European Beekeeping Coordination (Bee Life) and Buglife — The Invertebrate Conservation Trust.
2. The costs are reserved.
Luxembourg, 30 January 2017.
Registrar | | President of the First Chamber |