ORDER OF THE PRESIDENT OF THE TENTH CHAMBER OF THE GENERAL COURT
17 April 2024 (*)
(Access to documents – Protection of personal data – Complaint – Dispute resolution by the European Data Protection Board (EDPB) in accordance with Article 65 of the General Data Protection Regulation (GDPR) – Complainant denied access to the EDPB file under Article 41(2)(b) of the Charter of Fundamental Rights of the European Union – Action for annulment – Intervention – Interest in the result of the case – Undertaking which is the subject of the complaint – Confidentiality)
In Case T‑183/23,
Lisa Ballmann, residing in Innsbruck (Austria), represented by F. Mikolasch, lawyer,
applicant,
v
European Data Protection Board, represented by I. Vereecken, M. Gufflet and N. Peris Brines, acting as Agents, and by G. Ryelandt, E. de Lophem and P. Vernet, lawyers,
defendant,
THE PRESIDENT OF THE TENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 7 April 2023, Ms Lisa Ballmann brought an action seeking, on the basis of Article 263 TFEU, annulment of the decision of the European Data Protection Board (‘the EDPB’), allegedly contained in an email of 7 February 2023, by which it informed her that she did not have, under Article 41(2)(b) of the Charter of Fundamental Rights of the European Union (‘the Charter’), a right of access to the file on the basis of which the EDPB adopted Binding Decision 3/2022 on the dispute submitted by the Irish supervisory authority for personal data protection on Meta Platforms Ireland Limited (‘Meta’) and its Facebook service. Ms Ballmann had previously filed a complaint against Meta concerning its Facebook service and initiated the procedure which led to the adoption of that binding decision by the EDPB on the basis of Article 65(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).
2 By document lodged at the Court Registry on 16 August 2023, Meta sought leave to intervene in support of the form of order sought by EDPB. That form of order seeks to have the action dismissed as inadmissible or, in the alternative, as unfounded.
3 The application to intervene was served on the main parties. The EDPB and Ms Ballmann objected to Meta being granted leave to intervene by documents lodged on 13 and 14 September 2023, respectively. The EDPB also requested that, should leave to intervene be granted, certain information on the Court’s file should not be disclosed to the intervener on the ground that it is confidential.
The application to intervene
4 In support of its application to intervene, Meta submits that it meets the conditions for leave to intervene laid down in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, as applicable to undertakings. It submits that it has a direct, existing interest in the result of the present dispute. Ms Ballmann’s access to the file on the basis of which the EDPB adopted Binding Decision 3/2022 on the Facebook service would give her access to confidential information and documents used in quasi-criminal proceedings. Meta’s rights of defence and equality of arms would be adversely affected, in particular in the context of the action for annulment which it has brought before the General Court against the binding decision (Case T‑129/23). Granting Ms Ballmann’s present application could lead to such a situation. Conversely, rejecting it would support Meta’s legal position that third parties do not have a right of access to the file in proceedings concerning it, not only in the case relating to Facebook, but also so far as concerns future proceedings. Confidential information and documents used in those proceedings would not be disclosed to third parties. Meta’s direct, existing interest in the resolution of the case is also economic in nature.
5 Ms Ballmann and the EDPB contest that those arguments establish Meta’s direct, existing interest in the result of the present dispute. They state that the possible annulment of the contested statement of position would not immediately lead the EDPB to grant Ms Ballmann access to the file on the basis of which Binding Decision 3/2022 was adopted, but would give rise to an EDPB decision on the request for access to the various documents, taking account of the protection of confidential information. Thus, first, Meta’s interest relates to the pleas put forward in the case, but not to its result; secondly, confidential or commercially sensitive information would not, in any event, be passed on to Ms Ballmann if her application were successful. Meta’s legal position is therefore not affected. Ms Ballmann and the EDPB add that Meta does not explain how the resolution of the present dispute could affect its rights of defence or equality of arms. Ms Ballmann claims that, at the present stage, she is at a disadvantage as a complainant since she has not been given access to the file comparable to that given to Meta. She adds that Meta does not explain how the outcome of the present dispute would have any direct, existing effect on its economic interests.
6 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, any person may intervene in a case before the Courts of the European Union, other than a case between Member States, between EU institutions, or between Member States and EU institutions, if that person can establish an interest in the result of the case.
7 It is settled case-law that the concept of an ‘interest in the result of the case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward (orders of the President of the Court of 17 June 1997, National Power and PowerGen, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 53, and of 8 June 2012, Schenker v Air France and Commission, C‑589/11 P(I), not published, EU:C:2012:332, paragraph 10).
8 The expression ‘result’ of the case is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver (order of the President of the Court of 17 June 1997, National Power and PowerGen, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 57, and order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 11).
9 In the case of an application to intervene by an undertaking, it is necessary, in particular, to ascertain whether the intervener is directly affected by the contested act and whether its interest in the result of the case is established (see, to that effect, orders of 25 November 1964, Lemmerz-Werke v High Authority, 111/63, EU:C:1964:82, and of 25 February 2003, BASF v Commission, T‑15/02, EU:T:2003:38, paragraph 26).
10 It has already been held that, in disputes relating to access to documents held by EU entities, an undertaking’s direct, existing interest in the result of the case may be recognised if the annulment of the refusal to grant the applicant access to documents relating to that undertaking may lead the EU entity concerned, when complying with the judgment annulling the decision, to disclose certain documents the disclosure of which would harm the commercial interests of that undertaking (see, to that effect, orders of 6 December 2007, Agrofert Holding v Commission, T‑111/07, not published, EU:T:2007:368, paragraphs 27 to 30; of 6 March 2009, Éditions Odile Jacob v Commission, T‑237/05, not published, EU:T:2009:58, paragraph 14; of 30 August 2022, Hahn Rechtsanwälte v Commission, T‑87/22, not published, EU:T:2022:502, paragraphs 17 and 18; and of 28 July 2023, SD v EMA, T‑623/22, not published, EU:T:2023:471, paragraphs 9 to 13).
11 In the present case, Ms Ballmann relies on Article 41(2)(b) of the Charter to gain access to the file held by the EDPB. Even though that provision, which lays down, under the right to good administration, the right of every person to have access to his or her file, states that that right is subject to respect for the legitimate interests of confidentiality and of professional and business secrecy, it is not inconceivable, by analogy with the situations which gave rise to the analysis referred to in paragraph 10 above, that if Ms Ballmann’s action were successful, the EDPB would grant Ms Ballmann access to information on data processing carried out by Meta for its Facebook service, the use of which could harm Meta’s commercial interests.
12 Furthermore, it has consistently been held that an applicant for leave to intervene has a direct interest in the result of the case if that result is capable of altering its legal position (see, to that effect, orders of the President of the Court of 17 June 1997, National Power and PowerGen, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 61, and of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7).
13 In the present case, the email of 7 February 2023 informing Ms Ballmann that she does not have a right of access to the requested file, under Article 41(2)(b) of the Charter, also contains other information showing, in essence, that the EDPB nevertheless examined the extent to which access to that file could be granted to her by applying the principles of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
14 Without prejudging the outcome of the present dispute, the scope of Ms Ballmann’s right of access to the documents in the present case, which could be covered by either Article 41(2)(b) of the Charter or Regulation No 1049/2001, forming part of the application of Article 42 of the Charter, could affect the position of Meta, which is involved in the proceedings initiated by Ms Ballmann by her complaint lodged under Article 77 of Regulation 2016/679 concerning the Facebook service. In that context, Meta’s legal position during the various stages of the procedure or of the litigation following the adoption of Binding Decision 3/2022 by the EDPB is likely to be affected by the extent of the access to documents and information that may result from the present case.
15 Moreover, Meta points out in its application to intervene that it has itself brought an action before the General Court against Binding Decision 3/2022 of the EDPB (Case T‑129/23), in which Ms Ballmann has sought leave to intervene in support of the EDPB.
16 In those circumstances, Meta has a direct, existing interest in the result of the present case and must be granted leave to intervene in support of the form of order sought by the EDPB.
The application for confidential treatment
17 The EDPB requests that personal data contained in the Court’s file be treated as confidential vis-à-vis Meta. At this stage, the disclosure of the procedural documents to the intervener must be confined to the non-confidential versions submitted. A decision on the merits of the application for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations that may be submitted on that issue.
On those grounds,
THE PRESIDENT OF THE TENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Meta Ireland Limited is granted leave to intervene in Case T‑183/23 in support of the form of order sought by the European Data Protection Board.
2. The Registrar shall send to Meta Ireland Limited the non-confidential version of all the procedural documents served on the main parties.
3. A time limit shall be set for Meta Ireland Limited to submit any objections it may have regarding the application for confidential treatment. A decision on the merits of that application is reserved.
4. A time limit shall be set for Meta Ireland Limited to submit a statement in intervention, without prejudice to the possibility to supplement it, if necessary, at a later stage, following a decision on the merits of the application for confidential treatment.
5. The costs are reserved.
Luxembourg, 17 April 2024.