Language of document :

ORDER OF THE PRESIDENT OF THE COURT

16 July 2021 (*)

(Appeal – Intervention – Confidentiality – Information treated as confidential at first instance)

In Case C‑465/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 September 2020,

European Commission, represented by L. Flynn, P.‑J. Loewenthal and F. Tomat, acting as Agents,

applicant,

the other parties to the proceedings being:

Ireland, represented by M. Browne, J. Quaney and A. Joyce, acting as Agents, S. Kingston, Senior Counsel, C. Donnelly, Senior Counsel, A. Goodman, Senior Counsel, P.W. Baker QC, and B. Doherty, Barrister-at-Law,

Apple Sales International, established in Cork (Ireland),

Apple Operations Europe, established in Cork,

represented by A. von Bonin, Rechtsanwalt, E. van der Stok, advocaat, C. Riis‑Madsen, advokat, D. Beard QC, and J. Bourke and L. Osepciu, Barristers,

applicants at first instance,

Grand Duchy of Luxembourg, represented by T. Uri and A. Germeaux, acting as Agents, and D. Waelbroeck and J. Braker, avocats,

Republic of Poland,

EFTA Surveillance Authority, represented by C. Zatschler, M. Sánchez Rydelski and C. Simpson, acting as Agents,

interveners at first instance,

THE PRESIDENT OF THE COURT,

having regard to the proposal of N. Wahl, Judge-Rapporteur,

after hearing the Advocate General, G. Pitruzzella,

makes the following

Order

1        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 15 July 2020, Ireland and Others v Commission (T‑778/16 and T‑892/16, EU:T:2020:338, ‘the judgment under appeal’), by which the General Court annulled Commission Decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (OJ 2017 L 187, p. 1).

2        By order of the President of the Court of Justice of 14 December 2020, it was held that the information redacted from the common non-confidential version of the appeal and annexes thereto, lodged at the Registry of the Court by Apple Sales International and Apple Operations Europe, in agreement with the Commission and Ireland, on 30 November 2020, would be treated as confidential vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, interveners at first instance, and that non-confidential version alone was to be required to be served, by the Registrar, on those two Member States.

3        By order of the President of the Court of 11 February 2021, it was held that confidential treatment would be granted, vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, interveners at first instance, on the one hand, to the information redacted from the non-confidential version of the response of Apple Sales International and Apple Operations Europe, lodged at the Court Registry on 11 December 2020, and that non-confidential version alone was to be required to be served, by the Registrar, on those two Member States and, on the other hand, to the information redacted from the non-confidential version of the response of Ireland, lodged at the Court Registry on 7 January 2021, and that non-confidential version alone was to be required to be served, by the Registrar, on those two Member States.

4        On 31 May 2021, the Commission lodged its reply.

5        By documents lodged at the Court Registry on 11 June 2021, Apple Sales International, Apple Operations Europe and Ireland requested the Court to treat as confidential vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland an item of confidential information relating to Apple Sales International’s alleged advantage as set out in paragraph 71 of the Commission’s reply. To that end, Apple Sales International, Apple Operations Europe and Ireland conferred with each other with a view to communicating, at the same time as their application for confidential treatment, a non-confidential version of that reply. By letter of 21 June 2021, the Commission confirmed that, with the exception of the redaction of the information at issue, that version corresponded in every respect to the reply which it had lodged in the present case.

6        It should be recalled that Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. Moreover, in accordance with Article 172 of the Rules of Procedure, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service of the appeal on that party. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on the parties given leave to intervene at first instance.

7        However, where a party is requesting, vis-à-vis a party that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis that same party in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (orders of the President of the Court of Justice of 13 December 2016, Lundbeck v Commission, C‑591/16 P, not published, EU:C:2016:967, paragraph 5, and of 2 September 2020, Eurofer v Commission, C‑226/20 P, not published, EU:C:2020:669, paragraph 4).

8        In the present case, it should be noted that the request for confidential treatment of the Commission’s reply relates to a figure, set out in paragraph 71 of the reply, in respect of which confidential treatment had already been granted by the General Court. In that regard, that figure is part of the information redacted from the common non-confidential version of the appeal and the annexes thereto, a version which, by virtue of the order of the President of the Court of Justice of 14 December 2020, is the only one to have been served on the Grand Duchy of Luxembourg and the Republic of Poland.

9        It follows that it is necessary to grant the request, submitted by Apple Sales International and Apple Operations Europe, on the one hand, and by Ireland, on the other, that the Court of Justice treat as confidential, vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, the information redacted from the non-confidential version of the Commission’s reply lodged at the Court Registry.

10      In those circumstances, only the non-confidential version of that reply, lodged at the Court Registry by Apple Sales International and Apple Operations Europe, on the one hand, and by Ireland, on the other, on 11 June 2021, is to be served on the Grand Duchy of Luxembourg and the Republic of Poland.

On those grounds, the President of the Court hereby orders:

1.      The information redacted from the non-confidential version of the European Commission’s reply, lodged at the Registry of the Court of Justice by Apple Sales International and Apple Operations Europe, on the one hand, and by Ireland, on the other, on 11 June 2021, shall be treated as confidential vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, and that non-confidential version alone shall be required to be served, by the Registrar, on those two Member States.

2.      The costs are reserved.


Luxembourg, 16 July 2021.


A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.