ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
2 September 2009(*)
(Confidentiality)
In Case T‑441/08,
ICO Services Ltd, established in Slough (United Kingdom), represented by S. Tupper, Solicitor,
applicant,
v
European Parliament, represented by J. Rodrigues and R. Kaškina, acting as Agents,
and
Council of the European Union, represented by G. Kimberley and F. Florindo Gijón, acting as Agents,
defendants,
supported by
Commission of the European Communities, represented by M. Wilderspin and A. Nijenhuis, acting as Agents,
intervener,
APPLICATION for annulment of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15),
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
makes the following
Order
Facts and procedure
1 ICO Services Ltd (‘ICO’) is a wholly-owned subsidiary of ICO North America Inc., which is itself a majority-owned subsidiary of ICO Global Communications (Holdings) Limited. The two last-mentioned companies are established in Reston, Virginia (United States).
2 ICO Global Communications is a next-generation satellite communication company. It operates a hybrid satellite communications system, combining both satellite and terrestrial communications capabilities, in order to offer wireless voice and video data and interactive multimedia services throughout the world on mobile and portable devices.
3 The objective of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15) (‘the contested decision’) is to establish a common framework for the selection and authorisation of operators of mobile satellite systems.
4 By application lodged at the Registry of the Court of First Instance on 26 September 2008, ICO brought an action for the annulment of the contested decision under the fourth paragraph of Article 230 EC.
5 On 16 and 20 January 2009, the Parliament and the Council raised, by separate documents, pleas of inadmissibility against the application lodged by ICO.
6 By document dated 4 February 2009, the Commission sought leave to intervene in these proceedings in support of the forms of order sought by the Parliament and the Council. The parties indicated that they had no objection to that application for leave to intervene.
7 By letter of 5 March 2009, ICO requested confidential treatment, vis-à-vis the Commission, for certain parts of the application and certain annexes to the application.
8 On 17 March 2009, ICO lodged observations on the pleas of inadmissibility raised by the Parliament and the Council.
9 By letter of 25 March 2009, ICO requested confidential treatment, vis-à-vis the Commission, for certain of its observations on the pleas of inadmissibility raised by the Parliament and the Council.
10 By order of the President of the First Chamber of the Court of 2 April 2009, the Commission was granted leave to intervene in support of the Parliament and the Council. The decision as whether the request for confidential treatment was well founded was reserved. Non-confidential versions of the various procedural documents, prepared by ICO, were sent to the Commission.
11 By letter of 30 April 2009, the Commission challenged in its entirety the request for confidential treatment made by ICO.
The request for confidential treatment
Subject-matter of the request and observations of the parties
12 First, ICO requests confidential treatment for paragraphs 12, 15, 70(a), (c), (d), (f), and (i), and 80(g) of the application, together with footnotes 81, 83 and 87 thereto. ICO states that these passages contain business secrets.
13 Secondly, ICO requests confidential treatment for Annexes A.1, A.16, A.17, A.24, A.26 and A.27 to the application.
14 ICO states that those annexes to the application are confidential inasmuch as, as regards Annexes A.1, A.16, A.17 and A.24, they concern the parties to the documents in question exclusively, as regards Annex A.26, it contains business secrets and, as regards Annex A.27, it relates to the confidential information set out at paragraph 80(g) of the application.
15 Thirdly, ICO requests confidential treatment for paragraph 34 of and footnotes 26 and 47 to its observations on the pleas of inadmissibility raised by the Parliament and the Council. ICO states that these passages contain business secrets.
16 The Commission considers, in the first place and as a general point, that the confidential treatment requested by ICO should not apply to a public authority. The Commission is not a commercial operator. To grant the request for confidentiality would also result in the treatment applied to the Commission being different to the treatment applied to the Parliament and the Council in this case.
17 In the second place, as regards the application, the Commission points out that that document was already sent to it on 5 November 2008. It has therefore been able to have access to the information contained in it. ICO’s request for confidential treatment is thus devoid of purpose. In addition, the Commission contends that the request for confidential treatment for paragraph 15 of the application is manifestly unfounded. That casts doubts on the request for confidential treatment as a whole.
18 In the third place, as regards the annexes to the application, the Commission considers that without sight of certain documents it cannot piece together the factual context of the present case. Thus, for example, the Commission states that Annexes A.1 and A.17 relate to a ‘space licence’. Footnotes 1 and 25 to the application give the impression that one and the same licence is being referred to.
19 In the fourth place, as regards ICO’s observations on the pleas of inadmissibility, the Commission considers that the request for confidential treatment is devoid of purpose since it relates to information which can be obtained from reading the application. The Commission refers, in particular, to footnotes 26 and 47 to the observations. As regards paragraph 34 of the observations, the Commission is perplexed by the request for confidential treatment, since that paragraph reproduces information contained in paragraphs 12 and 13 of the application. In the same way, the non-confidential version of the application reveals information for which ICO seeks confidential treatment in relation to the observations on the pleas of inadmissibility.
Findings of the President
20 Article 116(2) of the Rules of Procedure of the Court of First Instance states:
‘If an intervention for which application has been made within the period of six weeks prescribed in Article 115(1) is allowed, the intervener shall receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.’
21 That provision lays down the principle that a copy of every document served on the parties must be served on the interveners. It is only by way of derogation therefrom that the second sentence of Article 116(2) permits certain documents to be treated as confidential, thereby exempting them from the requirement that copies be served on the interveners (order 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, paragraph 15; order of the President of the Third Chamber (Extended Composition) of the Court of 13 January 2005 in Case T-266/02 Deutsche Post v Commission, not published in the ECR, paragraph 19; order of the President of the Third Chamber of the Court of 24 January 2006 in Case T-417/05 Endesa v Commission, not published in the ECR, paragraph 14; and order of the President of the Fifth Chamber of the Court of 1 March 2007 in Case T-336/04 SBS TV and SBS Danish Television v Commission [2007] ECR II‑491, paragraph 40).
22 For the purpose of determining the conditions under which confidential treatment may be given to certain matters, it is necessary, in respect of each document on the file or passage in a procedural document for which confidential treatment is sought, to balance the applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate concern to have the necessary information for the purposes of being fully in a position to assert their rights and state their case before the Community judicature (orders in Deutsche Post v Commission, cited in paragraph 21 above, paragraph 20; in Endesa v Commission, cited in paragraph 21 above, paragraph 15; of the President of the Fifth Chamber of the Court of 15 June 2006 in Case T-271/03 Deutsche Telekom v Commission, not yet published in the ECR, paragraph 10; and in SBS TV and SBS Danish Television v Commission, cited in paragraph 21 above, paragraph 41).
23 Moreover, the Court of First Instance Practice Directions to Parties of 5 July 2007 (OJ 2007 L 232, p. 7) state that an application which is insufficiently detailed will not be considered and that 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 (points 75 and 76 of the practice directions to parties).
24 It follows that an application for confidential treatment which is insufficiently detailed as to the particulars it covers will be dismissed (order in SBS TV and SBS Danish Television v Commission, cited in paragraph 21 above, paragraph 43).
25 It also follows that account will be taken of the succinctness of the reasons provided in support of an application for confidential treatment in situations where it is not sufficiently clear from the examination of the particulars covered by the application that they are confidential (order in SBS TV and SBS Danish Television v Commission, cited in paragraph 21 above, paragraph 44; see also, to that effect, order in Endesa v Commission, cited in paragraph 21 above, paragraph 18). Such consideration is, in the interests of the proper administration of justice, a fortiori necessary in cases where the confidential treatment sought concerns a substantial amount of information (order in SBS TV and SBS Danish Television v Commission, paragraph 44; see also, to that effect, order in Deutsche Post v Commission, cited in paragraph 21 above, paragraph 23).
26 It is, finally, appropriate to observe that the interveners’ opposition to the confidentiality sought must relate to specific matters which have been obscured in the procedural documents and state the reasons for which confidentiality with regard to those matters should be refused. Accordingly, an application for confidential treatment must be upheld in so far as it concerns matters which have not been disputed, or not disputed expressly and in detail (orders in Deutsche Telekom v Commission, cited in paragraph 22 above, paragraphs 12, 14 and 15, and in SBS TV and SBS Danish Television v Commission, cited in paragraph 21 above, paragraph 45; see also, to that effect, orders of the President of the Third Chamber of the Court of 15 October 2002 in Case T-203/01 Michelin v Commission, not published in the ECR, paragraph 10; of the President of the Third Chamber of the Court of 5 February 2003 in Case T-287/01 Bioelettrica v Commission, not published in the ECR, paragraph 12; of the President of the Fourth Chamber of the Court of 22 February 2005 in Case T-383/03 Hynix Semiconductor v Council [2005] ECR II-621, paragraphs 36 and 83; and of the President of the Third Chamber (Extended Composition) of the Court of 4 March 2005 in Case T-289/03 BUPA and Others v Commission [2005] ECR II-741, paragraph 11).
27 In the present case, first and as regards ICO’s request for confidential treatment for certain paragraphs of and footnotes to the application (paragraph 12 above), it must be stated that the Commission has received, in accordance with Article 24(7) of the Rules of Procedure, a copy of the application, without the annexes thereto, to enable it to assess whether the inapplicability of one of its acts is being invoked under Article 241 EC or Article 156 EA. Since the application has been legitimately disclosed to the Commission, ICO’s request for confidential treatment in that regard is devoid of purpose and must accordingly be rejected (see, to that effect, order in Hynix Semiconductor v Council, cited in paragraph 26 above, paragraphs 49 and 57).
28 Secondly, as regards ICO’s request for confidential treatment of certain annexes to the application (paragraphs 13 and 14 above), it must be pointed out, first of all, that Annexes A.26 and A.27 concern information which is set out, respectively, at paragraph 70(i), together with the footnote to page 83, and at paragraph 80(g) of the application, that is to say, information which has legitimately been disclosed to the Commission. In the absence of a more detailed statement of reasons, ICO’s request for confidential treatment in that regard must therefore be rejected. With respect to Annexes A.1, A.16, A.17 and A.24 to the application, which relate specifically to licences granted by the public authorities (Annexes A.1, A.16 and A.17) and to an agreement entered into between ICO and public authorities (Annex A.24), ICO merely states that those annexes are confidential because they are of concern only to the parties involved. However, the documents in question do not show that the parties considered that those documents were, in themselves, confidential as regards third parties. Only the agreement set out at Annex 24 to the application contains a specific provision relating to confidentiality, which states that ‘each Party agrees to treat with the utmost confidentiality all documents, information and/or data obtained in the course of the execution of this [Memorandum of Understanding] and deemed confidential by the other Party’. However, that provision refers only to documents, information or data resulting from the execution of the agreement in question and not to the agreement itself. Furthermore, the confidentiality which that provision contemplates is not automatic and must be requested by one of the contracting parties. Moreover, the existence of a confidentiality agreement between ICO and a third party, should it exist, cannot derogate from the rule, referred to above, laid down by Article 116(2) of the Rules of Procedure (see, to that effect, order in Endesa v Commission, cited in paragraph 21 above, paragraph 25). Lastly, Annexes A.1, A.16, A.17 and A.24 to the application do not appear to contain material the disclosure of which could be adverse to ICO’s interests. In those circumstances and in the absence of any particular line of argument on ICO’s part which would establish that disclosure to the Commission would be liable to prejudice ICO’s interests, the request for confidential treatment in this regard must be rejected.
29 Thirdly, with respect to ICO’s request for confidential treatment for certain paragraphs of and footnotes to its observations on the pleas of inadmissibility (paragraph 15 above), it must be found that, as regards footnotes 26 and 47 to those observations, those footnotes reproduce information which is contained in paragraph 80(g) of the application and which has been legitimately disclosed to the Commission. That being so, ICO’s request for confidential treatment in that regard is devoid of purpose and must accordingly be rejected. With respect to paragraph 34 of those observations, the information which is contained there may be deduced from paragraphs 12 and 13 of the application, which have already been disclosed to the Commission, and from Annexes A.12 and A.13 to the application, for which ICO does not request confidential treatment. ICO’s request for confidential treatment for paragraph 34 of the abovementioned observations must, therefore, also be rejected.
30 In the light of all of the above, and without it being necessary to adjudicate on the argument raised by the Commission, according to which confidential treatment should not, as a matter of principle, apply to a public authority, the request for confidential treatment lodged by ICO must be rejected in its entirety.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The request for confidential treatment made by ICO Services Ltd is rejected in its entirety.
2. A complete set of the procedural documents, as communicated by ICO Services Ltd to the Court of First Instance, will be served, under the authority of the Registrar, on the Commission.
3. The Commission will be set a time-limit for the completion, if appropriate, of its statement in intervention.
4. Costs are reserved.
Luxembourg, 2 September 2009.