ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
10 May 2012 (*)
(Confidentiality – Challenge)
In Case T‑339/08,
Belgische Vereniging van handelaars in– en uitvoerders geslepen diamant (BVGD), established in Antwerp (Belgium), represented initially by L. Levi and C. Ronzi, and subsequently by L. Levi and M. Vandenbussche, lawyers,
applicant,
v
European Commission, represented by F. Castillo de la Torre, J. Bourke and R. Sauer, acting as Agents, and by T. Soames, Solicitor,
defendant,
supported by
De Beers, established in Luxembourg (Luxembourg),
De Beers UK Ltd, established in London (United Kingdom),
represented initially by W. Allan and S. Horwitz, Solicitors, subsequently by W. Allan, J. Ysewyn, lawyer, and N. Gràcia Malfeito, Solicitor, and lastly by N. Gràcia Malfeito, B. van de Walle de Ghelcke, J. Marchandise, lawyers and P. Riedel, Solicitor,
interveners,
APPLICATION for the annulment of the Commission’s Decision of 5 June 2008 rejecting BVGD’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements (Case COMP/39.221/E-2 – De Beers/DTC Supplier of Choice),
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the General Court Registry on 18 August 2008, the applicant, Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (‘BVGD’), brought an action seeking annulment of the Commission’s Decision of 5 June 2008 rejecting its complaint against De Beers and The Diamond Trading Co. Ltd alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements (Case COMP/39.221/E-2 – De Beers/DTC Supplier of Choice) (‘the contested decision’).
2 By document lodged at the Court Registry on 5 December 2008, De Beers and De Beers UK Ltd (together ‘De Beers’) applied for leave to intervene in support of the form of order sought by the Commission of the European Communities.
3 By letter of 17 March 2009, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in the application and the annexes thereto.
4 By letter of 19 March 2009, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in the defence and the annexes thereto.
5 By order of the President of the Sixth Chamber of the Court of 11 May 2009, De Beers was granted leave to intervene in support of the form of order sought by the Commission. The decision on the merits of the application for confidential treatment was reserved.
6 By letter of 29 May 2009, De Beers contended that none of the passages redacted in the non-confidential versions of the application, the defence and the annexes to those documents, communicated to it, should be granted confidential treatment. In the alternative, De Beers submitted that BVGD be directed to give further and better particulars of its applications for confidential treatment and that De Beers be given a further opportunity to comment on such particulars.
7 Non-confidential versions of the various procedural documents, prepared by BVGD, were transmitted to De Beers.
The applications for confidential treatment
Subject-matter of the applications for confidentiality
8 BVGD has submitted applications for the confidential treatment of certain information in the application, the defence, and the annexes to those procedural documents.
9 As regards, first, the originating application and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– the redacted information in paragraphs 3, 5, 9, 11 to 17, 20, 21, 39, 40, 43, 44, 57 to 59, 61, 65, 76, 77, 87, 89 to 91, 93, 94, 97, 108, 110 to 114, 116, 117, 128, 132 to 134, 144, 148, 150 to 152, 155, 157 to 160, 163, 165 to 168, 171, 177, 180, 182, 183, 185 to 187, 190 to 214, 219, 221 to 228, 231, 233 to 235, 239 and 241 to 244 and footnote No 13;
– Annexes A.3, A.3 bis, A.4, A.6 to A.12 and A.14 to A.18 in their entirety, including reference to them in the list of annexes.
10 As regards, second, the defence and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– the redacted information in paragraphs 13, 16, 18, 21, 23, 24, 29, 32, 44, 49, 51, 56, 57, 59, 60, 62 to 64, 71, 75, 77, 79, 81 to 84, 89, 90, 92, 94, 98 to 100, 102, 103, 107 and 109 to 131 and in footnotes Nos 2 and 31;
– the redacted information in Annex B.1;
– Annex B.2 in its entirety, including reference to it in the list of annexes.
The merits of the applications for confidentiality
11 The applications for confidential treatment were made pursuant to Article 116(2) of the Rules of Procedure of the General Court, which provides that although ‘[t]he intervener shall receive a copy of every document served on the parties’, ‘[t]he President may, however, on application by one of the parties, omit secret or confidential documents’.
12 This 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 not be sent to them (orders in Case T-30/89 Hilti v Commission [1990] ECR II-163, publication by extracts, paragraph 10; of the President of the Fourth Chamber of the Court in Case T‑383/03 Hynix Semiconductor v Council [2005] ECR II-621, publication by extracts, paragraph 18; and of the President of the Fourth Chamber (Extended Composition) of the Court of 2 May 2007 in Case T-388/02 Kronoply and Kronotex v Commission, not published in the ECR, paragraph 24).
13 In that connection, in the first place, the Instructions to the registrar of the General Court (OJ 2007 L 232, p. 1) provided, at Article 6(2) thereof, that an application for confidential treatment must be made in accordance with the provisions of the Practice Directions to parties (points 74 to 77).
14 In accordance with point 74 of the Practice Directions to parties (OJ 2007 L 232, p. 7), the application for confidential treatment must be made by a separate document.
15 In addition, under point 75 of the Practice Directions to parties, an application for confidential treatment must be limited to what is strictly necessary, and it may not in any event cover the entirety of a pleading, and may only exceptionally extend to the entirety of an annexed document. Point 75 also states that it should usually be feasible to furnish a non-confidential version of a document in which passages, words or figures have been deleted without harming the interest sought to be protected.
16 Furthermore, as provided in point 76 of the Practice Directions to parties, an application for confidential treatment 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. In accordance with point 75 of those directions, an application which is insufficiently detailed will not be considered.
17 Accordingly, the party who makes an application for confidentiality must specify the documents or information covered and duly state the reasons for which they are confidential (see order of the President of the Third Chamber of the Court of 3 May 2011 in Case T-384/09 SKW Stahl-Metallurgie Holding and SKW Stahl‑Metallurgie, not published in the ECR, paragraph 25, and the case-law cited).
18 In the second place, 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 (orders in Hynix Semiconductor v Council, paragraph 36, and in Kronoply and Kronotex v Commission, paragraph 27).
19 The intervener’s challenge to the application for confidentiality must relate to precise items of the procedural documents which have been redacted and must indicate the reasons for which confidentiality with regard to those items should be refused. Accordingly, a request for confidential treatment must be allowed in so far as it concerns items which have not been disputed by the intervener, or which the latter has not disputed expressly and precisely (orders of the President of the Fifth Chamber of the Court in Case T-271/03 Deutsche Telekom v Commission [2006] ECR I-1747, paragraphs 12, 14 and 15; of the President of the Second Chamber of the Court of 29 April 2008 in Case T-275/06 Omya v Commission, not published in the ECR, paragraph 9; and of the President of the Seventh Chamber of the Court of 14 October 2009 in Case T-353/08 vwd Vereinigte Wirtschaftsdienste v Commission, not published in the ECR, paragraph 10).
20 In the third place, in so far as an application made under the second sentence of Article 116(2) of the Rules of Procedure is disputed, the President must first of all examine 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 (orders in Hynix Semiconductor v Council, paragraph 38, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 15).
21 The requirement to state reasons for the application for confidentiality is to be assessed in light of the secret or confidential nature of each of the documents and pieces of information covered. Indeed, a distinction must be drawn between (i) information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or which is by nature confidential, such as purely internal information and (ii) other documents or information which may be secret or confidential for a reason that is for the applicant to furnish (see orders in Hynix Semiconductor v Council, paragraph 34, and the case-law cited, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 16).
22 Therefore, the secret or confidential character 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 secret or confidential by its very nature (orders of the President of the Sixth Chamber of the Court of 18 November 2008 in Case T-274/07 Zhejiang Harmonie Hardware Products v Council, not published in the ECR, paragraph 25, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 17).
23 In the fourth place, where his examination leads him to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President is then to assess and weigh up the competing interests, for each document and piece of information (orders in Hynix Semiconductor v Council, paragraph 42, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 24).
24 Where confidential treatment is requested in the interests of the applicant – contrary to BVGD’s claim that interveners do not enjoy the same rights of access to the file as the main parties – the President balances, for each document or piece of information, the applicant’s legitimate concern to prevent serious harm to his interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders in Hilti v Commission, paragraph 11; Hynix Semiconductor v Council, paragraph 44; Deutsche Telekom v Commission, paragraph 10; and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 25).
25 Where confidential treatment is requested in the interests of a person not party to the dispute, the President balances, for each document or piece of information, that person’s interest that the secret or confidential documents or information which concern him should be protected and the interest of the interveners in having them for the purpose of exercising their procedural rights (orders of the President of the Fifth Chamber (Extended Composition) of the Court in Case T‑102/96 Gencor v Commission [1997] ECR II-879, paragraph 18, and in Hynix Semiconductor v Council, paragraph 45).
26 In any event, an applicant for confidential treatment must, given the adversarial and public nature of the judicial proceedings, envisage the possibility that some of the secret or confidential documents or information which it has decided to place on the file may appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (orders in Case T-89/96 British Steel v Commission [1997] ECR II-835, paragraph 24; Hynix Semiconductor v Council, paragraph 46; and Zhejiang v Council, paragraph 22).
27 The applications for confidential treatment submitted in the present case must be examined in the light of the above-mentioned principles.
28 In the present case, all BVGD’s applications for confidential treatment are disputed expressly and precisely by De Beers.
29 It should be noted at the outset that those applications for confidential treatment do not satisfy the requirement to state reasons referred to in paragraphs 16 and 17 above. BVGD does not at any time specify the content of the documents or information to be omitted from the procedural documents served on De Beers. First, it simply refers in those applications for confidentiality to one or more paragraphs or annexes of the originating application and the defence. Second, it simply refers to seven general reasons restated in each application for confidentiality – some extremely briefly, for example, the second reason described simply as ‘Business secrets’. Further, with the exception of Annex A.4 of the application in respect of which no reason is provided, in the main BVGD simply cites a number of the above reasons (five in general) for each of the paragraphs and annexes for which confidentiality is sought. In those circumstances, De Beers is not in a position to identify the information at issue and, a fortiori, to put forward its observations on the confidentiality of that information or the need that might exist for it to be disclosed to it (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 32).
30 Admittedly, according to case-law, the requirement to state reasons is to be assessed in light of the secret or confidential nature of each of the documents and pieces of information covered, and the Court will recognise the secret or confidential character of the documents or information for which no reasoning is given other than a description of their content where that information can be considered secret or confidential by its very nature (see paragraphs 21 and 22 above).
31 However, while the requirement to state reasons is lower with regard to information which by its nature constitutes business secrets or confidential information, this does not mean that there is no requirement to state reasons at all. It is still necessary to describe the content of the documents or information for which confidentiality is sought, so that the intervener may take a view on such confidentiality, without, however, disclosing to it the document or information at issue (see the case-law cited in paragraph 22 above, and referred to in paragraph 30 above). Such a description is lacking in all the applications for confidential treatment.
32 For the sake of completeness, it must be noted that the applications for confidential treatment of certain documents and information do not satisfy the requirement also referred to in paragraphs 16 and 17 above, relating to the need to identify accurately the particulars or passages to be excluded. As regards those documents and information, the application for confidential treatment does not correspond to the non‑confidential version of the document in question. Thus, BVGD applies for confidential treatment of paragraph 166 of the application without even redacting it in part in the non-confidential version of the application. Conversely, it redacted all or part of (i) paragraphs 66, 92, 156, 184 and 189 and footnotes Nos 5, 7 to 11, 26, 33, 49 and 50 of the application and (ii) paragraphs 17, 25, 26 and 132 and footnotes Nos 6, 7, 9 to 19, 22, 30, 32, 33, 35 to 39, 48, 53, 55 to 59, 62, 63, 67 to 79, 81, 83, 84, 86, 87, 89, 90 and 92 to 97 of the defence, without referring to them in the relevant applications for confidential treatment.
33 Also for the sake of completeness, it must be noted that when some of the documents and information covered by those applications for confidentiality are examined individually, it is apparent that they are neither secret nor confidential.
34 First, information available if not to the public at large at least to specialist circles, or capable of being inferred from such information, must be regarded as neither secret nor confidential (see order of the President of the First Chamber of the Court of 5 August 2003 in Case T‑168/01 Glaxo Wellcome v Commission, not published in the ECR, paragraph 43, and the case-law cited).
35 That applies to (i) the joint press release of De Beers and Alrosa of 6 September 2006, relating to their joint diamond prospecting and exploration activities (annex to Annex B.2 of the defence) and (ii) the internet publications in the two annexes to Annex B.2 of the defence.
36 Second, information must be regarded as neither secret nor confidential where it concerns the interveners and is necessarily known to them (order of the President of the Second Chamber of the Court of 21 March 1994 in Case T-24/93 Compagnie maritime belge transports et Compagnie maritime belge v Commission, not published in the ECR, paragraphs 13 and 14), which is also the case of (i) information of which the interveners are or may already have become aware legitimately (orders of the President of the Fourth Chamber (Extended Composition) of the Court of 25 June 1997 in Case T-215/95 Telecom Italia v Commission, not published in the ECR, paragraph 19, and in Glaxo Wellcome v Commission, paragraph 45) and of (ii) information which is largely apparent, or may be deduced, from information of which they are aware or which will be disclosed to them (orders of the President of the Fourth Chamber (Extended Composition) of the Court in Case T-234/95 DSG v Commission, not published in the ECR, paragraph 14, and of the President of the Second Chamber (Extended Composition) of the Court of 3 July 1998 in Case T-143/96 Volkswagen and Volkswagen Sachsen v Commission, not published in the ECR, paragraphs 20 and 32).
37 This clearly applies, in the present case, to all the data concerning De Beers, such its replies to the Commission’s supplementary requests for information dated 9 and 29 October 2007 (non-confidential versions of which are annexed to Annex A.8 of the originating application), all the more so when De Beers is the author of the information at issue as is the case for those replies. Further examples include the various information on the SOC system of distribution set up by De Beers, in particular the information relating to the terms of reference of the Ombudsman, who was appointed in response to the Statement of Objections of 25 July 2001 concerning the SOC arrangements (annex to Annex A.3 and annex to Annex A.18 of the application).
38 In addition, it is clear from paragraph 59 of the order of the President of the Eighth Chamber of 8 May 2012 in Case T-104/07 BVGD v Commission, not published in the ECR, that the Commission’s requests to extend the time-limits of proceedings in Case T-104/07 and the responses thereto from the Court were all made known to De Beers, so that the De Beers must also be regarded as being aware of the summary of those applications and responses in Annex A.3bis of the application.
39 Third, information reproduced a number of times in the pleadings must be regarded as neither secret nor confidential where confidential treatment is not requested for each of the passages in which it appears. In that case, the information concerned will in any event be disclosed to the interveners (orders of the President of the Second Chamber (Extended Composition) of the Court of 9 November 1994 in Case T‑9/93 Schöller Lebensmittel v Commission, not published in the ECR, paragraph 11, and of the President of the Fourth Chamber of the Court of 16 September 1998 in Case T-252/97 Dürbeck v Commission, not published in the ECR, paragraph 13).
40 In the present case, this applies, for example, to a number of annexes of the application completely redacted in the non-confidential version of that pleading, yet whose wording is visible in part, if not entirely, in the non-confidential passages of some paragraphs of the application (see, in particular, paragraph 108 setting out in essence Annex A.14 of the application and paragraph 171 setting out in part Annex A.18 of that application), at times without redacting the reference to the relevant annex (see, in particular, paragraphs 109 and 116 of the application, the non-confidential version of which sets out part of the wording of Annexes A.15 and A.12, respectively, without redacting the references to those annexes). In addition, in many instances, the applications for confidential treatment merely seek to exclude reference to the fact that the Commission is defining its position (see, for example, paragraphs 65 and 185 of the application, in which the phrases ‘as [the Commission] claims in the “supplementary rejection Decision”‘and ‘to which the Commission repeatedly refers in the “supplementary rejection Decision”‘are redacted, respectively; see also paragraphs 32 and 130 of the defence, in which the phrases ‘The [contested d]ecision explicitly states that’ and ‘but [the Commission] merely explains in the [contested d]ecision’ are redacted, respectively), whereas it is obvious that, since the positions are criticised by BVGD and the subject of an action brought against the Commission, they are the Commission’s positions adopted, in particular, in the contested decision.
41 Fourth, information which is not by nature business secrets or confidential data, and which BVGD has not shown as amounting to such, must be regarded as neither secret nor confidential (see paragraph 21 above). This applies to the following: (i) the initial decision rejecting BVGD’s complaint (Annex A.3 of the application) and the supplementary rejection decision, contested in the present case (Annex A.12 of the application) and (ii) the letters pursuant to Article 7 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) (letter of 4 August 2006 reproduced in Annex A.18 of the application and letter of 13 November 2007 reproduced in Annex A.4 of the application) and BVGD’s observations on those letters (its observations of 19 September 2006 on the letter of 4 August 2006 reproduced in Annex B.2 of the defence and its observations of 15 January and 12 February 2008 on the letter of 13 November 2007 reproduced in Annexes A.7 and A.9 of the application).
42 Reference must also be made in that context to the paragraphs of the pleadings for which confidentiality is sought because of the reference to information contained in, or relating to, the above-mentioned documents (see, inter alia, (i) paragraphs 5, 11, 21, 43, 44, 116, 132, 134, 148, 167, 180, 201, 209, 211, 214, 219 and 222 of the application and (ii) paragraphs 16, 75, 81, 92, 99 and 131 of the defence).
43 First, those documents and passages, which are concerned with or constitute the main documents in the procedures initiated following the complaint giving rise to the present dispute, do not amount to information purely internal to BVGD or to the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18). Second, although BVGD claims, generally, that some of those documents and passages contain business secrets, it does not in any way describe the information in them which constitutes business secrets of a commercial, competition-related, financial or accounting nature (see paragraph 31 above).
44 BVGD puts forward a variety of arguments in order to establish that the documents and passages at issue are nonetheless confidential. However, those arguments cannot succeed.
45 First of all, BVGD submits, in essence, that all the documents in the procedures initiated further to its complaint are confidential since it has requested the Commission to treat them as such and the Commission has granted such confidential treatment, as evidenced by the heading ‘Confidential’, in particular in the contested decision. It is sufficient in that regard to refer to the settled case-law according to which the President cannot be bound by the fact that certain documents and information were accorded confidential treatment by the Commission during the administrative procedure which led to the adoption of the contested act (see order in Hynix Semiconductor v Council, paragraph 40, and the case-law cited). The rules on confidential treatment applied by the Courts of the European Union and by the Commission are different, the former applying the provisions of its Rules of Procedure and the latter those contained, inter alia, in Regulation No 773/2004. BVGD cannot therefore rely on the fact that De Beers cannot access the documents referred to above under Article 15(1) of Regulation No 773/2004, which restricts such access to parties to whom a statement of objections has been addressed.
46 BVGD submits next, that De Beers should not have access, in the present proceedings, to either the initial rejection decision or the contested decision, for which confidential treatment was sought in Case T-104/07. Since those applications for confidentiality were dismissed in Case T-104/07 by the order in BVGD v Commission, they cannot justify granting confidential treatment to those decisions.
47 BVGD submits, lastly, that De Beers must not be allowed to rely on the contested decision – which rejects the complaints against the SOC arrangements – in order to defend the SOC system. It should be noted in that respect that the rejection of a complaint is not in itself confidential. The person whose conduct is the subject-matter of the complaint is, in accordance with the Commission’s consistent practice, informed that the complaint has been rejected (order in BVGD v Commission, paragraph 68), and BVGD itself has disclosed that decision by publicly challenging it (see BVGD’s public statements in annex to De Beers’ observations of 29 May 2009, referred to in paragraph 6 above) and also by bringing the present action.
48 In any event, even assuming that BVGD has established that the documents and information referred to in paragraphs 41 and 42 above are secret or confidential, after the competing interests have been weighed up they would be disclosed to De Beers. The documents and the information appear necessary in order for De Beers to exercise its procedural rights, since it could not comment effectively on BVGD’s pleas in law directed against the contested decision if it did not have access to that decision and to all the documents of the procedure – before and after the contested decision – to which BVGD refers on numerous occasions in order to substantiate its arguments (see paragraphs 24 and 26 above).
49 In addition, the exchange of correspondence between BVGD and the Commission before the contested decision was adopted must be regarded as neither secret nor confidential by nature. That correspondence relates to the following documents: (i) BVGD’s applications concerning the extension of time-limits on account of distance (Annexes A.6, A.10 bis and A.10 ter of the application); (ii) information relating to the confidentiality procedure before the Commission (Annex A.10 ter of the application); and (iii) requests for access to BVGD’s documents (Annexes A.8 and A.14 to A.17 of the application). Those exchanges of correspondence also include letters from the Commission asking BVGD for its views on the various documents relating to the SOC arrangements in annex to those letters (Annexes A.8 and A.10 of the application).Those letters cannot be regarded as secret or confidential by nature, since they do not contain information purely internal to BVGD or the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18) or specific and precise elements of a commercial, competition-related, financial or accounting nature (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 34).
50 The arguments put forward by BVGD in order to prove that the exchanges of correspondence at issue are nonetheless confidential in the present case must also be rejected. As regards the argument that, since most of the letters concerned were drafted by BVGD’s lawyers, disclosure would breach their duty of confidentiality, it must be noted that although account must be taken of the general principle of law that written communications between lawyer and client are confidential, that principle relates only to communications between lawyer and client (see, to that effect, order in Hilti v Commission, paragraph 11). The annexes in question here are letters between the Commission and BVGD’s lawyers, not between BVGD and its lawyers. As regards the argument that disclosure of the letters concerned would reveal the Commission’s strategy, it must be stated that confidential treatment cannot be granted since it has not been adequately shown how De Beers’ knowledge of that strategy could substantially harm BVGD’s commercial interests (see, to that effect, order of the President of the Fifth Chamber of the Court of 23 April 2001 in Case T-77/00 Esat Telecommunications v Commission, not published in the ECR, paragraph 87). BVGD has not argued – still less proved – harm to its commercial interests or those of its members specifically as a result of knowledge of the Commission’s position.
51 Furthermore, with regard, in particular, to the exchange of correspondence concerning the requests for access to documents by BVGD, even if that exchange could be regarded as confidential, it cannot be precluded from disclosure to De Beers. In the context of its first plea in law in the present case, BVGD refers to breach of its procedural rights, alleging breach of its right of access to the documents on which the Commission based its provisional assessment. Disclosure of the letters in question therefore appears necessary for De Beers to exercise its procedural rights, since the latter could not, without knowledge of all of those letters, comment effectively on BVGD’s arguments concerning them.
52 The correspondence for which BVGD requests confidentiality also contains a letter setting out its criticisms of Alrosa’s replies to the Commission’s supplementary request for information and, more generally, of the SOC arrangements and De Beers (Annex A.11 of the application). It must be noted in that regard that only facts (or descriptions of facts) may be categorised as confidential by nature, and not assessments of those facts or purely legal considerations, which are regarded, as a rule, as not capable of being withheld from interveners (see, to that effect, orders in Gencor v Commission, paragraph 32, and in SKW Stahl‑Metallurgie Holding and SKW Stahl-Metallurgie, paragraph 26). By its criticisms, BVGD clearly undertakes an assessment of the facts relating to Alrosa, the SOC arrangements, and De Beers.
53 The arguments relied on by BVGD in order to challenge the resulting lack of confidential character in the present case cannot succeed. Its argument that to disclose its criticisms of the SOC arrangements could harm the future commercial relations of its members with De Beers and Alrosa is unfounded, since the names of the members are not referred to in any of the redacted passages and BVGD itself states that it is the sole legal representative under Belgian law to defend the interests and speak on behalf of all polished diamond dealers, regardless of membership. Accordingly, no link may be established between BVGD’s criticisms and any of its members. Furthermore, as regards more specifically the relations with Alrosa, in view of the interveners’ obligation in proceedings to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in the context of their action (see the order in Hynix Semiconductor v Council, paragraph 47, and the case-law cited), Alrosa must not be informed of the data at issue by De Beers.
54 As regards BVGD’s claim of breach of its fiduciary duty, it must be found, first, that this is in no way substantiated and, second, that, even assuming that by that duty BVGD is referring to its need to maintain its relationships of trust with its members by not disclosing confidential information concerning them and by not repeatedly criticising an important commercial partner of those members, this cannot in the present case lead to the passages in question being granted confidential treatment. This is because the redacted annex does not contain any precise information relating to BVGD’s members and BVGD itself has, in the context of its complaint against De Beers – which was not lodged anonymously – and of a number of public statements annexed to De Beers’ observations of 29 May 2009 (see paragraph 6 above), set out its criticisms of the SOC arrangements.
55 Lastly, Annex B.1 of the defence which comprises the defence in Case T-104/07 is not to be regarded as confidential in the present case either. The application for confidential treatment of that annex seeks to ensure that only the non-confidential version of that pleading be disclosed to De Beers as transmitted to it in the context of Case T-104/07. Since the application for confidential treatment of that pleading was dismissed in Case T-104/07 by the order in BVGD v Commission, the application for confidential treatment of Annex B.1 of the defence must also be dismissed.
56 It follows from all of the foregoing that BVGD’s applications for confidential treatment must be dismissed in their entirety.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The applications of Belgische Vereniging van handelaars in– en uitvoerders geslepen diamant (BVGD) are dismissed.
2. The Registrar shall ensure that a complete version of the procedural documents is served on De Beers and De Beers UK Ltd.
3. A period shall be prescribed within which De Beers and De Beers UK are to submit in writing any additional observations on the information disclosed in accordance with the present order.
4. Costs are reserved.
Luxembourg, 10 May 2012.