ORDER OF THE PRESIDENT OF THE GENERAL COURT
5 February 2024 (*)
(Confidentiality – Challenge by an intervener)
In Case T‑102/23 R,
SBK Art OOO, established in Moscow (Russia), represented by G. Lansky and P. Goeth, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz, acting as Agent, and by B. Maingain, lawyer,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By its application under Articles 278 and 279 TFEU, the applicant, SBK Art OOO, seeks, inter alia, suspension of the operation of Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 104) and of Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 3), in so far as those acts prevent it from exercising its rights as a stakeholder of a Dutch legal entity, Fortenova Group STAK Stichting, to vote in relation to the sale and transfer of shares in Fortenova Group MidCo BV by Fortenova Group TopCo BV.
Procedure
2 By document lodged at the Court Registry on 26 February 2023, the applicant brought an action seeking the annulment of Council Decision (CFSP) 2022/2477 of 16 December 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 322I, p. 466) and of Council Implementing Regulation (EU) 2022/2476 of 16 December 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 322I, p. 318), in so far as those acts concern the applicant.
3 By document lodged at the Court Registry on 6 June 2023, the Republic of Croatia applied for leave to intervene in the proceedings in support of the form of order sought by the Council of the European Union.
4 By document lodged at the Court Registry on 21 July 2023, the applicant submitted an application for confidential treatment vis-à-vis the Republic of Croatia with respect to certain items of information in the application, the reply and several of their annexes.
5 By order of 8 September 2023, the President of the First Chamber of the General Court granted leave to intervene to the Republic of Croatia.
6 By document lodged at the Court Registry on 28 September 2023, the Republic of Croatia challenged the application for confidential treatment in its entirety.
7 By order of 13 December 2023, the President of the First Chamber of the General Court granted in part the application for confidential treatment made by SBK Art OOO vis-à-vis the Republic of Croatia, in so far as concerns the following information:
– the redacted passages in paragraph 56 of the application;
– the redacted passages in paragraph 58 of the application, with the exception of the information on the nominal price for the sale of the shares appearing at the end of the third sentence in paragraph 58, on the purchase of the receivable at the beginning of the fourth sentence in paragraph 58, and on the amount of that receivable in parentheses in the penultimate sentence in paragraph 58;
– the redacted passages in paragraphs 147 and 148 of the application;
– the redacted passages in paragraph 150 of the application, with the exception of the principal amount of the loan appearing in the second sentence of that paragraph and in footnote 64;
– the redacted passages in paragraphs 153, 154 and 187 of the application;
– the redacted passages in Annex A.18a to the application, with the exception of the total net worth of the purchaser appearing on page 5 of Annex A.18a, and the redacted passages in Annexes A.24 and A.25 to the application, with the exception of the final two indents of Annex A.25 to the application;
– the redacted passages in Annexes C.2a and C.2b to the reply, with the exception of the interest amounts already disclosed in paragraph 55 of the rejoinder.
8 By separate document lodged at the Court Registry on 13 December 2023, the applicant submitted an application for interim measures.
9 By document lodged at the Court Registry on 14 December 2023, the applicant submitted an application for confidential treatment vis-à-vis the Republic of Croatia in so far as concerns the following information:
– the redacted passages in paragraph 62 of the application for interim measures;
– the redacted passages in paragraph 56 of Annex IM.6 to the application for interim measures;
– the redacted passages in paragraph 58 of Annex IM.6 to the application for interim measures, with the exception of the information on the nominal price for the sale of the shares appearing at the end of the third sentence in paragraph 58, on the purchase of the receivable at the beginning of the fourth sentence in paragraph 58, and on the amount of that receivable in parentheses in the penultimate sentence in paragraph 58;
– the redacted passages in paragraphs 147 and 148 of Annex IM.6 to the application for interim measures;
– the redacted passages in paragraph 150 of Annex IM.6 to the application for interim measures, with the exception of the principal amount of the loan appearing in the second sentence of that paragraph and in footnote 64;
– the redacted passages in paragraphs 153, 154 and 187 of Annex IM.6 to the application for interim measures;
– Annex IM.21 to the application for interim measures, with the exception of the total net worth of the purchaser appearing on page 5 of that annex.
10 On 14 December 2023, the applicant provided a non-confidential version of those documents containing the information to which the application for confidential treatment relates.
11 By document lodged at the Court Registry on 8 January 2024, the Republic of Croatia challenged the application for confidential treatment in its entirety.
12 On 8 January 2024, the Council lodged its observations on the application for interim measures.
13 By document lodged at the Court Registry on 19 January 2024, the applicant submitted an application for confidential treatment vis-à-vis the Republic of Croatia concerning the following information:
– Annex IMC.8 to the Council’s observations, with the exception of the total net worth of the purchaser appearing on page 5 of that annex;
– Annex IMC.12 to the Council’s observations, with the exception of the last two indents of that annex.
14 On 19 January 2024, the applicant provided a non-confidential version of those documents containing the information to which the application for confidential treatment relates.
15 By document lodged at the Court Registry on 25 January 2024, the Republic of Croatia challenged the application for confidential treatment in its entirety.
The application for confidential treatment
Principles
16 Article 144(7) of the Rules of Procedure of the General Court states that ‘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’.
17 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 secret or confidential documents or information may be excluded from that communication (see order of 21 December 2022, Mostovdrev v Council, T‑259/22, not published, EU:T:2022:869, paragraph 8 and the case-law cited).
18 Article 144(2) of the Rules of Procedure in fact permits the main parties to apply for certain confidential information in the file in the case not to be communicated to an intervener. In such a case, Article 144(5) of those rules provides that the President is to decide as soon as possible, by order, on the communication to the intervener of information which it is claimed is confidential.
19 In the first place, in so far as an application submitted under Article 144(2) of the Rules of Procedure is disputed, the President of the Chamber before which the case is pending is required, first of all, to examine whether each of the documents and items of information, the confidentiality of which is disputed and for which an application for confidential treatment has been made, is secret or confidential (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 18 and the case-law cited).
20 The requirement for the applicant to state reasons for the application for confidential treatment is to be assessed in the light of the secret or confidential nature of each document and item of information concerned. A distinction must be drawn between, on the one hand, information which is inherently secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, on the other hand, documents or information which may be secret or confidential for a reason that it is for the applicant to provide (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 19 and the case-law cited).
21 Therefore, the secret or confidential nature of the documents or information for which no reasoning is given other than a description of their content will be accepted only in so far as that information can be considered inherently secret or confidential (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 20 and the case-law cited).
22 The concept of business secrets covers, inter alia, information of a commercial, competition-related, financial or accounting nature which is not normally available to those not directly connected with the undertaking and which cannot, due to its age, be regarded as historic (order of 23 July 2021, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2021:506, paragraph 18 and the case-law cited).
23 In the second place, where his or her examination leads him or her to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President of the Chamber before which the case is pending is then to assess and weigh up the competing interests, for each document and piece of information (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 22 and the case-law cited).
24 Accordingly, where confidential treatment is requested in the interests of the applicant, the President of the Chamber before which the case is pending weighs in the balance, for each document or item of information, the applicant’s legitimate concern to prevent serious harm to its interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 23 and the case-law cited).
25 In addition, it should be observed that acceptance of an application for confidential treatment does not prevent an intervener from using the information concerned in the context of its intervention if it becomes apparent that that information appears elsewhere in the case file which it received (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 59 and the case-law cited). If an intervener lawfully became aware of such information by any other means, it may also use it, as appropriate, in order to support its position, under its own responsibility having regard to the limitations on using that information which may be imposed upon it, for example as a result of obligations arising from professional secrecy or confidentiality agreements (order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 22).
26 It is in the light of those principles that the applicant’s application for confidential treatment vis-à-vis the Republic of Croatia must be examined.
The merits of the applications for confidential treatment
27 In support of its application for confidential treatment, the applicant restates the arguments put forward in support of its application for confidential treatment submitted in the main proceedings. It maintains that the information for which it seeks confidential treatment includes sensitive information which may be used by the Government of the Republic of Croatia and the Croatian media in order to criticise the applicant and its purchaser. The applicant also claims that the Republic of Croatia has an interest in discrediting it.
28 The Republic of Croatia disputes the application for confidential treatment in its entirety. First of all, it argues that it needs full access to all the documents produced by the applicant in order to adduce all the evidence in its intervention.
29 Next, the Republic of Croatia submits that the application for confidential treatment is not consistent with the Practice Rules for the Implementation of the Rules of Procedure of the General Court in so far as the parts of the documents referred to in the application for confidential treatment are not sufficiently selective. Furthermore, it argues that the applicant has not stated reasons as to the confidential nature of each passage for which it requests confidential treatment.
30 Lastly, the Republic of Croatia disputes the argument put forward by the applicant that it would misuse the information for which confidentiality has been requested. It submits that the Croatian authorities adhere to the obligation of professional secrecy in all proceedings.
31 It should be noted, in the first place, that the information covered by the applications for confidential treatment corresponds to information to which confidential treatment has already been accorded by the order of 13 December 2023.
32 Thus, first, the redacted passages in paragraph 62 of the application for interim measures essentially reproduce the information in paragraph 56 of the application in the main proceedings in respect of which the application for confidential treatment was granted.
33 Secondly, Annexes IM.6 and IM.21 to the application for interim measures and Annexes IMC.8 and IMC.12 to the Council’s observations correspond to the application in the main proceedings and Annexes A.18a and A.25 thereto. The order of 13 December 2023 has already accorded confidential treatment to the passages which are covered by the applications for confidential treatment in the present proceedings for interim measures and which form part of those documents.
34 In the second place, it should be pointed out that the reasoning followed by the President of the First Chamber of the General Court in the order of 13 December 2023 is entirely applicable to the applications for confidential treatment submitted in the proceedings for interim measures, which are ancillary to the main proceedings.
35 First, as is apparent from paragraph 44 of the order of 13 December 2023, paragraph 56 of the application, which corresponds, in essence, to paragraph 62 of the application for interim measures, contains information relating to the assets owned by the applicant’s purchaser. That information is of a financial or commercial nature and is normally not available to third parties. Consequently, pursuant to the case-law cited in paragraph 22 of the present order, it constitutes business secrets.
36 In addition, that information on the assets of the purchaser is not such as to prevent the Republic of Croatia from asserting its rights or developing its arguments before the Courts of the European Union, with the result that the request for confidentiality with respect to the information in paragraph 62 of the application for interim measures should be granted.
37 Secondly, as regards paragraph 58 of Annex IM.6, the applicant seeks confidential treatment for the redacted passages, with the exception of the information on the nominal price for the sale of the shares appearing at the end of the third sentence in paragraph 58, on the purchase of the receivable at the beginning of the fourth sentence in paragraph 58, and on the amount of that receivable in parentheses in the penultimate sentence in paragraph 58. It follows from paragraph 31 of the order of 13 December 2023 that paragraph 58 contains information on the terms of the sale by the company Sberbank of its shares in the applicant, such as, in particular, the sale price, the purchase of a receivable, the schedule planned for the payment, and the selling price that was contemplated with other potential investors. That information must be considered as being connected with the applicant’s business secrets since it includes financial information which is not normally available to parties that are not directly connected with the applicant.
38 Furthermore, weighing up the competing interests leads to the conclusion that the information appearing in paragraph 58 of Annex IM.6, related to the sale in question, does not appear to be necessary for the exercise of the procedural rights of the Republic of Croatia. Consequently, the applicant’s application should be granted and confidential treatment should be accorded to the redacted passages in paragraph 58.
39 Thirdly, as regards the redacted passages in paragraphs 147, 148 and 154 of Annex IM.6 to the application for interim measures, as is apparent from paragraph 33 of the order of 13 December 2023, it should be noted that those paragraphs describe the business strategy pursued by the company Sberbank and the purchaser in relation to the applicant. Accordingly, that information should be considered as being connected with the applicant’s business secrets since it contains details which are not available to third parties. In addition, in the context of the weighing up of the competing interests, it should be concluded that that information is not necessary for the exercise of the procedural rights of the Republic of Croatia. Consequently, the application for confidentiality concerning the information in paragraphs 147, 148 and 154 must be granted.
40 Fourthly, as regards the redacted passages in paragraphs 150 and 153 of Annex IM.6 to the application for interim measures, it should be observed that, as is apparent from paragraph 37 of the order of 13 December 2023, those passages include information on the company involved in the loan granted by the Russian bank, on the use of that loan by the purchaser, and on the economic interests of the Russian bank in the context of that loan. Those paragraphs contain information that is not available to third parties. That information therefore constitutes business secrets in accordance with the case-law cited in paragraph 22 above. In addition, in the context of the weighing up of the competing interests, it should be concluded that that information is not necessary for the exercise of the procedural rights of the Republic of Croatia. Consequently, the application for confidentiality must be granted.
41 Fifthly, as regards the redacted passages in paragraph 187 of Annex IM.6 to the application for interim measures, it should be noted that that paragraph essentially reproduces the content of paragraph 153 of that annex, in respect of which confidentiality has been granted. Consequently, confidential treatment must also be accorded to paragraph 187.
42 Sixthly, as regards the redacted passages in Annex IM.21 to the application for interim measures and Annex IMC.8 to the Council’s observations, it must be pointed out that those annexes correspond to Annex A.18a to the application in the main proceedings. Annex A.18a is a statement on the net worth of the applicant’s purchaser, containing detailed information on the purchaser’s assets and on various commercial and financial interests. Thus, as is apparent from the order of 13 December 2023, that information may be considered to be a business secret. In addition, that information is not such as to prevent the Republic of Croatia from asserting its rights or putting forward its arguments before the Courts of the European Union.
43 Seventhly, as regards Annex IMC.12 to the Council’s observations, it should be noted that that annex corresponds to Annex A.25 to the application in the main proceedings. As is apparent from paragraph 35 of the order of 13 December 2023, the redacted passages in that annex contain information relating to the date and financing of the loan agreement, which are business secrets. Since that information is not such as to prevent the Republic of Croatia from asserting its rights or putting forward its arguments before the Courts of the European Union, the application for confidential treatment must be granted.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment made by SBK Art OOO vis-à-vis the Republic of Croatia is granted.
2. The costs are reserved.
Luxembourg, 5 February 2024.
V. Di Bucci | | M. van der Woude |