ORDER OF THE PRESIDENT OF THE COURT
25 April 2024 (*)
(Appeal – Intervention – Confidentiality)
In Case C‑731/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 November 2023,
Nicoventures Trading Limited, established in London (United Kingdom),
British American Tobacco (Germany) GmbH, established in Hamburg (Germany),
British American Tobacco Italia SpA (BAT Italia), established in Rome (Italy),
British American Tobacco Polska Trading sp. z o.o., established in Warsaw (Poland),
British American Tobacco España SA, established in Madrid (Spain),
P.J. Carroll & Company Limited, established in Dublin (Ireland),
represented by M. Schonberg and L. Van den Hende, advocaten,
appellants,
the other party to the proceedings being:
European Commission, represented by F. van Schaik and H. van Vliet, acting as Agents,
defendant at first instance,
THE PRESIDENT OF THE COURT
having regard to the proposal of K. Jürimäe, Judge-Rapporteur,
after hearing the Advocate General, N. Emiliou,
makes the following
Order
1 By their appeal, Nicoventures Trading Limited, British American Tobacco (Germany) GmbH, British American Tobacco Italia SpA (BAT Italia), British American Tobacco Polska Trading sp. z o.o., British American Tobacco España SA and P.J. Carroll & Company Limited (together, ‘the appellants’) seek the annulment of the order of the General Court of the European Union of 20 September 2023, Nicoventures Trading and Others v Commission (T‑706/22, EU:T:2023:579), by which it dismissed as inadmissible their action for annulment of Commission Delegated Directive (EU) 2022/2100 of 29 June 2022 amending Directive 2014/40/EU of the European Parliament and of the Council as regards the withdrawal of certain exemptions in respect of heated tobacco products (OJ 2022 L 283, p. 4), since the appellants were not individually concerned by that directive, within the meaning of the fourth paragraph of Article 263 TFEU.
2 By document lodged at the Registry of the Court of Justice on 29 February 2024, the French Republic applied for leave to intervene in Case C‑731/23 P in support of the form of order sought by the European Commission.
3 Since the application to intervene was submitted by the French Republic in accordance with Article 130(1) and (3) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings pursuant to Article 190 of those rules, that application must be granted.
4 Following service by the Registrar of the Court of Justice, in accordance with Article 131(1) of the Rules of Procedure, of the French Republic’s application to intervene, the applicants submitted their observations.
5 By document lodged at the Court Registry on 21 March 2024, the appellants requested confidential treatment by the Court vis-à-vis the French Republic of certain parts of their appeal, contained in the first sentence of paragraph 4(f) thereof (page 5 of the appeal), in the second sentence of paragraph 33 and in paragraph 33(b) thereof (page 14 of the appeal), in the first sentence of paragraph 33(c) and in paragraph 33(d) thereof (page 15 of the appeal), and the percentage figures set out in the first sentence of paragraph 4(f) thereof (page 5 of the appeal), in paragraph 33(b) and in the first sentence of paragraph 33(c) thereof (page 14 of the appeal). To that end, the appellants produce, in the annex to their request for confidential treatment before the Court, a non-confidential version of their appeal.
6 In support of their request, the appellants submit, in essence, that the data at issue are confidential and commercially sensitive relating, on the one hand, to the products that they manufacture and which fall within the scope of the contested measures and, on the other hand, to the impact of those measures on their situation.
7 In that regard, it must be noted that, with the exception of the figures expressed as percentages, the passages in respect of which confidentiality is sought are general statements that cannot justify confidential treatment.
8 In those circumstances, the appellants’ request should be granted only in so far as it seeks confidential treatment by the Court of the percentage figures set out in the first sentence of paragraph 4(f), in paragraph 33(b) and in the first sentence of paragraph 33(c) of the appeal, that request being dismissed as to the remainder.
9 However, in order to enable the appellants effectively to safeguard the commercial interests that they consider to be threatened by the disclosure of the passages referred to in paragraph 5 above, for which confidential treatment is not granted, the appellants must be given a short period within which to inform the Court whether they wish to keep those passages in their appeal or whether, on the contrary, they prefer to remove those passages from that appeal before it is served on the French Republic.
On those grounds, the President of the Court hereby orders:
1. The French Republic is granted leave to intervene in Case C‑731/23 P in support of the form of order sought by the European Commission.
2. The percentage figures mentioned in the first sentence of paragraph 4(f), in paragraph 33(b) and in the first sentence of paragraph 33(c) of the appeal shall be treated as confidential vis-à-vis the French Republic.
3. The application for confidential treatment is dismissed as to the remainder.
4. A time limit shall be set within which Nicoventures Trading Limited, British American Tobacco (Germany) GmbH, British American Tobacco Italia SpA (BAT Italia), British American Tobacco Polska Trading sp. z o.o., British American Tobacco España SA and P.J. Carroll & Company Limited are to communicate a new non-confidential version of the appeal to the Registrar of the Court of Justice that complies with point 2 of the present operative part and to indicate to the Court whether they wish to keep in their appeal those passages for which they sought confidential treatment, contained in the first sentence of paragraph 4(f), in the second sentence of paragraph 33, in paragraph 33(b), in the first sentence of paragraph 33(c) and in paragraph 33(d) thereof.
5. A copy of all the procedural documents shall be served, by the Registrar, on the French Republic.
6. A time limit shall be set for the French Republic to submit a statement in intervention.
7. The costs are reserved.
Luxembourg, 25 April 2024.
A. Calot Escobar | | K. Lenaerts |