ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
1 April 2015(*)
(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 ABEE, 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 by D. Waelbroek, D. Slater and I. Antypas, lawyers,
applicants,
supported by
Association générale des producteurs de maïs et 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,
European Crop Protection Association (ECPA), represented by D. Abrahams, Barrister and I. de Seze and E. Mullier, lawyers,
Rapool-Ring GmbH, represented by C. Stallberg and U. Reese, lawyers,
European Seed Association (ESA), represented by P. de Jong, P. Vlaemminck and B. Van Vooren, lawyers,
Agricultural Industries Confederation Ltd, represented by P. de Jong, P. Vlaemminck and B. Van Vooren, 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.N. Kloostra, lawyer,
Stichting Greenpeace Council, represented by B.N. 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 that implementing regulation.
2 By document lodged at the Court Registry on 19 December 2013, the Kingdom of Sweden 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 20 December 2013, the Union nationale de l’apiculture française (UNAF) applied for leave to intervene in support of the form of order sought by the Commission.
4 By document lodged at the Court Registry on 30 December 2013, the Association générale des producteurs de maïs et autres céréales cultivées de la sous-famille des panicoïdées (AGPM) applied for leave to intervene in support of the form of order sought by the applicants.
5 By document lodged at the Court Registry on 20 December 2013, the National Farmers’ Union (NFU) applied for leave to intervene in support of the form of order sought by the applicants.
6 By document lodged at the Court Registry on 23 December 2013, the European Crop Protection Association (ECPA) applied for leave to intervene in support of the form of order sought by the applicants
7 By document lodged at the Court Registry on 23 December 2013, Rapool-Ring GmbH applied for leave to intervene in support of the form of order sought by the applicants.
8 By document lodged at the Court Registry on 26 December 2013, the European Seed Association (ESA) applied for leave to intervene in support of the form of order sought by the applicants.
9 By document lodged at the Court Registry on 26 December 2013, the Agricultural Industries Confederation Ltd (AIC) applied for leave to intervene in support of the form of order sought by the applicants.
10 By document lodged at the Court Registry on 20 December 2013, the Deutscher Berufs- und Erwerbsimkerbund eV (DBEB) and the Österreichischer Erwerbsimkerbund (ÖEB) jointly applied for leave to intervene in support of the form of order sought by the Commission.
11 By document lodged at the Court Registry on 31 December 2013, Pesticide Action Network Europe (PAN Europe), Bee Life European Beekeeping Coordination (Bee Life) and Buglife — The Invertebrate Conservation Trust (Buglife) jointly applied for leave to intervene in support of the form of order sought by the Commission.
12 By document lodged at the Court Registry on 31 December 2013, Stichting Greenpeace Council applied for leave to intervene in support of the form of order sought by the Commission.
13 By letters lodged at the Court Registry on 3 February, 10 October and 13 October 2014 (together ‘the application for confidential treatment’), the applicants requested that, in accordance with Article 116(2) of the Rules of Procedure of the General Court, certain confidential information in the application, the defence, the reply and the annexes to those documents should not be disclosed to the interveners, in the event that they were granted leave to intervene in the proceedings. The applicants produced, for the purposes of that disclosure, a non-confidential version of the documents in question.
14 By orders of 20 October 2014, leave was granted to the Kingdom of Sweden, UNAF, DBEB, ÖEB, PAN Europe, Bee Life, Buglife and Stichting Greenpeace Council to intervene in support of the form of order sought by the Commission, and leave was granted to AGPM, NFU, ECPA, Rapool-Ring, ESA and AIC to intervene in support of the form of order sought by the applicants. Furthermore, the decision on whether the application for confidential treatment was well founded was reserved and, as a provisional measure, the provision of procedural documents to those parties was restricted to a non-confidential version, pending the submission of any observations on the application for confidential treatment.
15 By letter lodged at the Court Registry on 10 November 2014, UNAF objected to the applicants’ application for confidential treatment.
The application for confidential treatment
16 Article 116(2) of the Rules of Procedure of the General Court provides:
‘If the President allows the intervention, the intervener shall 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.’
17 That provision lays down the principle that interveners are to receive a copy of every document served on the parties and that it is only by way of derogation from that principle that certain secret or confidential documents or information may be withheld from disclosure (orders of 4 April 1990 in Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10; 22 February 2005 in Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 18; and 18 November 2008 in Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 17).
Whether the application for confidential treatment is well founded
18 The application for confidential treatment submitted by the applicants concerns three categories of data.
19 First, there is personal data, that is the names and contact details of the applicants’ employees, contained in the annexes to the application and to the defence.
20 Second, the application concerns the figures revealing information on the turnover, margins and costs levels concerning the applicants’ thiamethoxam business, contained in the application and the annexes thereto, the defence and the reply.
21 Thirdly, the applicants seek the non-disclosure of Annex C.16 to the reply, containing an unpublished study recently commissioned by them.
22 UNAF has raised objections only in relation to the second category referred to above.
23 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 in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 31 and the case-law cited). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restate those requirements in paragraph 76, according to which ‘[a]n application must accurately identify the particulars or passages to be excluded and briefly state the reasons for which each of those particulars or passages is regarded as secret or confidential’. 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 must be made in accordance with, inter alia, paragraph 76 of the Practice Directions to Parties (see the order in Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 18).
24 Second, when a party makes an application under the second sentence of Article 116(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 (order in Hynix Semiconductor v Council, 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.
25 Third, where an application under the second sentence of Article 116(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether the documents and information whose confidentiality is disputed, and in respect of 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, paragraph 38; of 11 June 2007 in Deutsche Post v Commission, T‑266/02, EU:T:2007:166, paragraph 21; and in Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 19).
26 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 required to go on to assess and weigh up the competing interests, for each document and piece of information (the orders in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 42, and Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 20).
27 In the present case, it should be noted, first, that UNAF is the only intervener 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 claim that the case-file contains confidential information. 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 in 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 UNAF.
28 In addition, UNAF does not contest the application for confidentiality as regards the information referred to in paragraphs 19 and 21 above. Consequently, in accordance with the case-law cited in paragraph 24 above, there is no need to give a decision on the confidentiality of the personal data of the applicants’ employees, in the Annexes to the application and to the defence, nor that of Annex C.16 to the reply.
29 Secondly, the data which UNAF argues should be denied confidential treatment consists of all the figures relating to the indication and justification of the harm which the applicants will allegedly suffer for the period from 2013 to 2017 by reason of the contested measure. In particular, this includes the estimated revenue loss, margin loss and profit loss, the amount of annual expenditure on safeguarding and developing the applicants’ reputation and the estimated loss of reputation alleged, the costs incurred in the context of the procedure for reviewing the approval of thiamethoxam and the total amount of the harm alleged.
30 It must be concluded that, with the exception of the total amount of the harm alleged, that information is inherently secret or confidential, and there is a risk that disclosure of that information may affect the applicants’ commercial interests as compared to their competitors. Moreover, it is clear that the information in question is not in the public domain, is not made available to third parties and does not constitute historic information.
31 By contrast, the total amount of the harm alleged is not inherently secret or confidential. Since that item of information is the result of adding together the various components of the harm alleged, no conclusion can be drawn from that total amount regarding confidential data such as that referred to in paragraph 29 above. Consequently, the application for confidential treatment must be dismissed in that regard.
32 Third, in accordance with the case-law cited in paragraph 26 above, the President is required to go on to assess and weigh up the competing interests for each document and piece of information the confidentiality of which is disputed.
33 UNAF contends that the extent of the harm that could be caused to bees and bee-keepers in France can only be calculated on the basis of the applicants’ turnover, that is the quantity of active substances put on the market and that treating that information as confidential would go against the full, fair and impartial administration of justice.
34 It must be observed, first of all, that that argument is insufficient to challenge the application for confidentiality with regard to the figures other than the applicants’ turnover concerning thiamethoxam alone.
35 Next, it must be noted that the subject-matter of the main proceedings is, first, the lawfulness of the contested measure, which prohibited the use and sale of seeds treated with thiamethoxam, because of the risk of such use particularly to bees and, secondly, the applicants’ claim for damages. However, UNAF has failed to explain how the amount of active substance placed on the market in the past could affect the assessment of the risk to bees posed by the prohibited use — except for the case, which is not argued in the present proceedings, of use of the treated seeds in absolutely negligible amounts.
36 In those circumstances, it must be held that the interests of the applicants in obtaining protection for their financial data vis-à-vis the interveners must prevail over the considerations put forward by UNAF. Moreover, it should be noted that UNAF is in a position to submit its observations on all the applicants’ arguments and that the information covered by the application for confidential treatment does not appear to be necessary in order for UNAF to exercise its procedural rights.
37 Since the non-disclosure of that information will not affect the intervening parties’ ability to assert their rights and state their case before the General Court, the applicants’ application for confidential treatment must be granted, with the exception of the indication, in the application and the reply, of the total amount of the harm alleged.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application by Syngenta Crop Protection AG and the other applicants of 31 January 2014 for confidential treatment concerning the originating application and the annexes thereto is granted, except in so far as it relates to the indication, in the introductory description of the subject-matter of the dispute, in paragraph 322 and the form of order sought, of the total amount of the harm alleged.
2. The application by Syngenta Crop Protection and the other applicants of 10 October 2014 for confidential treatment, concerning the reply and the annexes thereto, is granted, except in so far as it relates to the indication, in the introduction and in paragraph 165, of the total amount of the harm alleged.
3. The application by Syngenta Crop Protection and the other applicants of 13 October 2014 for confidential treatment concerning the defence and the annexes thereto is granted.
4. A period will be prescribed within which Syngenta Crop Protection and the other applicants are to produce a non-confidential version of the application and of the reply.
5. A non-confidential version of the application and of the reply will be served on the interveners by the Registrar.
6. The costs are reserved.
Luxembourg, 1 April 2015.