ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER EXTENDED COMPOSITION OF THE GENERAL COURT
19 March 2024 (*)
(Confidentiality — Challenge by the intervener)
In Case T‑709/22,
Illumina, Inc., established in Wilmington, Delaware (United States), represented by F. González-Díaz, M. Siragusa, G. Rizza, N. Latronico, A. Magraner-Oliver, J. Blanco Carol and T. Verheyden, lawyers, D. Beard and J. Holmes, Barristers,
applicant,
supported by
Biocom California, established in San Diego, California (United States), represented by B. Amory, L. Van Mullem, E. Barbier de La Serre and A. S. Perraut, lawyers,
and by
Grail LLC, established in Menlo Park, California (United States), represented by D. Little, Solicitor, C. Esteva Mosso, J. Ruiz Calzado, A. Escrigas Cañameras, J. M. Jiménez-Laiglesia Oñate, A. Giraud and S. Troch, lawyers,
interveners,
against
European Commission, represented by N. Khan, P. Berghe, A. Boitos, G. Conte and B. Ernst, acting as Agents,
defendant,
THE PRESIDENT OF THE FIFTH CHAMBER EXTENDED COMPOSITION OF THE GENERAL COURT
makes the following
Order
1 By its action based on Article 263 TFEU, the applicant, Illumina, Inc. (‘Illumina’), seeks the annulment of Commission Decision C(2022) 6454 final of 6 September 2022 declaring a concentration to be incompatible with the internal market and the functioning of the Agreement on the European Economic Area (EEA) of 2 May 1992 (OJ 1994 L 1, p. 3) and relating to the acquisition of sole control of Grail LLC, formerly Grail, Inc. (‘Grail’), by Illumina.
Procedure
2 By application lodged at the Registry of the General Court on 17 November 2022, the applicant brought the present action.
3 By document lodged on 16 March 2023, Grail applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant.
4 By document lodged on 12 April 2023, the applicant requested confidential treatment, as regards Grail, of certain information contained in the application and in some of its annexes.
5 By document lodged on 12 May 2023, the Commission requested confidential treatment, as regards Grail, of certain information contained in the application, the defence and some of the annexes thereto.
6 By document lodged on 8 June 2023, the applicant requested confidential treatment, as regards Grail, of certain information contained in the defence and some of its annexes.
7 By order of the President of the Fifth Chamber of the General Court of 27 July 2023, Grail was granted leave to intervene in support of the form of order sought by the applicant.
8 By measure of organisation of procedure of 31 July 2023, the Court invited the applicant to review the scope of its requests for confidential treatment, as regards Grail, of the application, the defence and some of the annexes thereto.
9 By document lodged on 31 August 2023, the applicant requested confidential treatment, as regards Grail, of information contained in the reply and some of its annexes.
10 By documents lodged on 2 October 2023, the applicant submitted, in response to the measure of organisation of procedure referred to in paragraph 8 above, revised requests for confidential treatment, as regards Grail, of the application, the defence and some of the annexes thereto.
11 By document lodged on 10 November 2023, the Commission requested confidential treatment, as regards Grail, of information contained in the reply and some of its annexes.
12 By document lodged on 20 November 2023, the Commission requested confidential treatment, as regards Grail, of the applicant’s reply to the measure of organisation of procedure referred to in paragraph 8 above and some of its annexes as lodged on 31 August 2023.
13 By document lodged on 15 December 2023, Grail contested the confidentiality of various passages which were redacted in the non-confidential versions of the application, the defence and the annexes thereto.
14 By documents lodged on 19 January 2024, the main parties informed the Court, in response to a measure of organisation of procedure of 11 January 2024, that they do not maintain their respective requests for confidential treatment, as regards Grail, of certain information contained in the application, the defence and the annexes the confidentiality of which was contested by Grail. On the same day, the main parties lodged new non-confidential versions of the documents concerned.
15 By document lodged on 19 January 2024, Grail contested the confidentiality of various passages which were redacted in the non-confidential versions of the reply, its annexes and the applicant’s reply to the measure of organisation of procedure referred to in paragraph 8 above and some of its annexes as lodged on 31 August 2023.
16 By documents lodged on 30 January 2024, the main parties informed the Court, in response to a measure of organisation of procedure of 23 January 2024, that they do not maintain their respective requests for confidential treatment, as regards Grail, of certain information contained in the reply, its annexes and the applicant’s reply to the measure of organisation of procedure referred to in paragraph 8 the confidentiality of which was contested by Grail. On the same day, the main parties lodged new non-confidential versions of the documents concerned.
17 By document lodged on 1 February 2024, the applicant requested confidential treatment, as regards Grail, of the rejoinder and some of its annexes.
18 By document lodged on 19 February 2024, Grail contested the confidentiality of several passages which were redacted in the non-confidential version of the rejoinder.
19 By document lodged on 1 March 2024, the applicant informed the Court, in response to a measure of organisation of procedure of 23 February 2024, that it does not maintain its respective requests for confidential treatment, as regards Grail, of certain information contained in the annexes to the reply and the rejoinder the confidentiality of which was contested by Grail. On the same day, the main parties lodged new non-confidential versions of the documents concerned.
Principles
20 Article 144(7) of the Rules of Procedure provides:
‘If the application to intervene is granted, the intervener shall receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication pursuant to paragraph 5 [of this article]’.
21 That provision lays down the principle that interveners are to receive a copy of every pleading served on the parties and permits only by way of derogation that certain confidential documents or information may be excluded from that communication (see order of 10 February 2020, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2020:69, paragraph 15 and the case-law cited).
22 In that regard it is clear from settled case-law, the substance of which is reproduced in paragraph 182 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, that the party submitting a request for confidential treatment must accurately identify the particulars or passages to be excluded, that that request must state the reasons for which each of those particulars or passages is regarded as confidential and that failure to provide such information may result in the request being refused by the Court (see order of 20 January 2021, Nouryon Industrial Chemicals and Others v Commission, T‑868/19, not published, EU:T:2021:34, paragraph 11 and the case-law cited).
23 Furthermore, it must be noted that when a party makes an application under Article 144(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 (see order of 22 July 2021, Qualcomm v Commission, T-671/19, not published, EU:T:2021:50, paragraph 7 and the case-law cited).
The subject matter of the requests for confidential treatment submitted by the main parties and contested by Grail
24 In respect of the requests for confidential treatment made by the main parties in relation to the application, the defence, the reply, the rejoinder, the applicant’s reply to the measure of organisation of procedure referred to in paragraph 8 above and the annexes thereto, Grail disputes the confidentiality of the following items:
– as regards the application, the redacted information in paragraphs 171, 176, 325, 351, 377, 387 and footnotes 262, 401, 422, 425, 557;
– as regards the annexes to the application, redacted information in annexes A.1, A.6, A.7, A.8, A.9, A.11, A.19, A.23, A.33, A.64, A.122, A.125, A.135, A.141, A.168, A.344, A.405 and A.465 to the application;
– as regards the defence, the redacted information in paragraphs 160, 163, 196, 198, 256, 287, 290, 345(a), 345(b), 375, 376, 392, 394, 402, 404, 411, 437, 442, 452, 529 and footnotes 175, 196, 201, 233, 342, 343, 344, 381, 388, 412, 574;
– redacted information in annex B.14 to the defence;
– as regards the reply, the redacted information in paragraphs 17, 70, 108 and footnotes 75, 82, 183;
– as regards annex C.3 to the reply, the redacted information at page 67 of the consecutive numbering of the annexes (penultimate bullet point), page 70 (first heading), page 70 (first paragraph below first heading), page 70 (first bullet point of first paragraph below first heading, first and last sentences), page 70 (second paragraph below first heading);
– as regards annex C.6 to the reply, the redacted information at page 116 of the consecutive numbering of the annexes (paragraph 1.1);
– as regards annex C.25 to the reply, the redacted information in question 7(i) and paragraphs 7.1, 7.2 and 7.3;
– annexes C.54, C.55, C.56, C.57 and C.58 to the reply;
– as regards the rejoinder, the redacted information in paragraphs 126 and 188.
25 In their replies to the measures of organisation of procedure of 11 January 2024, 23 January 2024 and 1 February 2024, the main parties withdrew their respective requests for confidential treatment of the information contained in paragraphs 171, 176, 325, 351, 377, 387 and footnotes 262, 401, 422, 425, 557 of the application, paragraphs 160, 163, 196, 198, 256, 287, 290, 345(a), 345(b), 375, 376, 392, 394, 402, 404, 411, 437, 442, 452, 529 and footnotes 175, 196, 201, 233, 342, 343, 344, 381, 388, 412, 574 of the defence, paragraphs 17, 70, 108 and footnotes 75, 82, 183 of the reply, paragraphs 126 and 188 of the rejoinder as well as annexes A.64, A.125, A.135, A.141, A.168, A.344, A.405, A.465, B.14, C.3, C.6, C.25, C.54, C.55, C.56, C.57 and C.58 to the extent that they have been contested by Grail.
26 In the light of that partial withdrawal by the main parties of their requests for confidential treatment, the objections, by Grail, to those requests have become devoid of purpose in so far as they related to the passages and information referred to in paragraph 25 above.
27 It follows from the foregoing that, according to the case-law referred to in paragraph 23 above, the President is to give a decision solely on the contested requests for confidential treatment of the information redacted in annexes A.1, A.6, A.7, A.8, A.9, A.11, A.19, A.23, A.33 et A.122.
The requests for confidential treatment disputed by Grail
28 In that regard, it must be recalled that the intervener’s opposition to the confidentiality sought must relate to specific material which has been redacted in the procedural documents and must state the reasons for which the intervener takes the view that confidentiality with regard to that information should be refused. Therefore, a request for confidential treatment must be upheld in so far as it concerns material which has not been disputed by the intervener, or which has not been disputed expressly and in detail (see order of 5 October 2012, Orange v Commission, T‑258/10, EU:T:2012:524, paragraph 21 and the case-law cited).
29 In the present case, Grail’s objections to the information redacted in annexes A.1, A.6, A.7, A.8, A.9, A.11, A.19, A.23, A.33 et A.122 state that they relate to ‘certain information of third-parties […] over which the Commission did not claim confidentiality in the course of the administrative proceedings’. Moreover, Grail states that it received non-confidential versions of the documents concerned during the administrative proceedings.
30 However, Grail does not indicate the specific passages of the aforementioned annexes that contain the redacted information the confidentiality of which it disputes. Also, Grail does not identify the third parties concerned by the redacted information although it claims to be aware of their identity.
31 Furthermore, Grail did not submit to the Court the non-confidential versions of annexes A.1, A.6, A.7, A.8, A.9, A.11, A.19, A.23, A.33 et A.122 that it claims to have received during the administrative proceedings. Accordingly, Grail did not put the Court in a position to verify whether the redacted information in the aforementioned annexes has already been made available to it during the administrative proceedings and therefore is not confidential vis-à-vis Grail.
32 Consequently, pursuant to the case-law cited in paragraph 28 above, the Commission’s requests for confidential treatment of annexes A.1, A.6, A.7, A.8, A.9, A.11, A.19, A.23, A.33 et A.122 must be upheld.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER EXTENDED COMPOSITION OF THE GENERAL COURT
hereby orders:
1. There is no need to adjudicate on the initial requests for confidential treatment, as regards Grail, of the information contained in paragraphs 171, 176, 325, 351, 377, 387 and footnotes 262, 401, 422, 425, 557 of the application, paragraphs 160, 163, 196, 198, 256, 287, 290, 345(a), 345(b), 375, 376, 392, 394, 402, 404, 411, 437, 442, 452, 529 and footnotes 175, 196, 201, 233, 342, 343, 344, 381, 388, 412, 574 of the defence, paragraphs 17, 70, 108 and footnotes 75, 82, 183 of the reply, paragraphs 126 and 188 of the rejoinder as well as annexes A.64, A.125, A.135, A.141, A.168, A.344, A.405, A.465, B.14, C.3, C.6, C.25, C.54, C.55, C.56, C.57 and C.58.
2. The requests for confidential treatment made by the Commission as regards annexes A.1, A.6, A.7, A.8, A.9, A.11, A.19, A.23, A.33 and A.122 are granted.
3. The costs are reserved.
Luxembourg, 19 March 2024.
V. Di Bucci | | J. Svenningsen |