ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
24 April 2012 (*)
(Confidentiality – Challenge)
In Case T‑75/10,
Empresa Brasileira de Aeronáutica, SA (Embraer), established in São José dos Campos (Brazil),
Embraer Aviation Europe SAS (EAE), established in Villepinte (France),
Indústria Aeronáutica de Portugal, SA (OGMA), established in Alverca do Ribatejo (Portugal),
represented initially by U. O’Dwyer and A.S. Martin, Solicitors, and subsequently by U. O’Dwyer,
applicants,
v
European Commission, represented by E. Gippini Fournier, D. Grespan and S. Thomas, acting as Agents,
defendant,
supported by
Short Brothers plc, established in Belfast (United Kingdom),
Bombardier, Inc., established in Quebec (Canada),
represented initially by A. Renshaw, M. O’Regan, S. Southwell, Solicitors, and subsequently by A. Renshaw and M. O’Regan,
and by
United Kingdom of Great Britain and Northern Ireland, represented initially by S. Behzadi-Spencer, acting as Agent, and subsequently by H. Walker, acting as Agent, and by K. Bacon, Barrister,
interveners,
APPLICATION for annulment of Commission Decision C(2009) 4541 final of 17 June 2009 not to raise objections to the State aid granted by the United Kingdom authorities to Short Brothers plc, a subsidiary of Bombardier Inc. (State aid N 654/2008 – United Kingdom Large R&D aid to Bombardier, OJ 2009 C 298, p. 2),
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Registry of the General Court on 17 February 2010, Empresa Brasileira de Aeronáutica, SA (Embraer), Embraer Aviation Europe SAS (EAE) and Indústria Aeronáutica de Portugal, SA (OGMA), the applicants, brought an action for annulment of Commission Decision C(2009) 4541 final of 17 June 2009 not to raise objections to the State aid granted by the United Kingdom authorities to Short Brothers plc, a subsidiary of Bombardier Inc. (State aid N 654/2008 – United Kingdom Large R&D aid to Bombardier, OJ 2009 C 298, p. 2).
2 By document lodged at the Registry of the General Court on 17 June 2010, Short Brothers plc and Bombardier Inc. applied for leave to intervene in support of the form of order sought by the European Commission.
3 By letter of 22 September 2010, the applicants made a request to the General Court for confidential treatment, in relation to Short Brothers and Bombardier, of certain data and information contained in the application and the annexes thereto, the defence and the reply.
4 By letter of 11 November 2010, the applicants made a request to the General Court for confidential treatment, in relation to Short Brothers and Bombardier, of certain data and information contained in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland.
5 By letter of 31 January 2011, Short Brothers and Bombardier raised objections to all the requests for confidential treatment made by the applicants.
6 By letter of 2 March 2011, the applicants made a request to the General Court for confidential treatment, in relation to Short Brothers and Bombardier, of certain information contained in their observations on the statement in intervention of the United Kingdom of Great Britain and Northern Ireland.
7 By letter of 8 April 2011, Short Brothers and Bombardier raised objections to the request for confidential treatment referred to in paragraph 6 above.
8 By letter of 24 June 2011, the applicants made a request to the General Court for confidential treatment, in relation to Short Brothers and Bombardier, of certain information contained in their observations on the statement in intervention of Short Brothers and Bombardier.
9 By letter of 27 July 2011, Short Brothers and Bombardier raised objections to the request for confidentiality referred to in paragraph 8 above.
The requests for confidential treatment
Subject-matter of the requests
10 The applicants made requests for confidential treatment relating to certain data and information contained in the application and the annexes thereto, in the defence, in the reply, in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland and in their observations on that statement, and also in their observations on the statement in intervention of Short Brothers and Bombardier, in respect of the following items of information:
– paragraph 33 and the items redacted in paragraph 42 of the application;
– paragraphs 37, 54 to 62 and the items redacted in paragraph 226 of Annex A.5 to the application;
– Annexes A.15 and A.28 to the application in their entirety;
– the items redacted in paragraph 30 of the defence;
– the items redacted in paragraph 21 of the reply;
– the items redacted in footnotes 20 and 50 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland;
– the items redacted in paragraph 45 of their observations on the statement in intervention of the United Kingdom of Great Britain and Northern Ireland;
– the items redacted in footnote 51 in their observations on the statement in intervention of Short Brothers and Bombardier.
11 It should be pointed out that the applicants, in their letter dated 11 November 2010, also made a request for confidential treatment of the items appearing in footnote 26 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland. They did not, however, redact anything in that footnote in the non-confidential version of that statement which they sent to the Registry. It must therefore be concluded that that request is devoid of purpose.
12 Short Brothers and Bombardier raised objections to all the applicants’ requests.
The merits of the requests for confidential treatment
13 It should be recalled that Article 116(2) of the Rules of Procedure of the General Court provides:
‘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.’
14 That provision lays down the principle that interveners are to receive a copy of every document served on the parties, and it is only by way of derogation from that principle that certain secret or confidential documents or information may be excluded from that obligation of communication (order of the General Court of 4 April 1990 in Case T‑30/89 Hilti v Commission [1990] ECR II‑163, summary publication, paragraph 10, and order of the President of the Eighth Chamber of the General Court of 2 March 2010 in Case T‑336/07 Telefónica and Telefónica de España v Commission, not published in the ECR, paragraph 26).
15 In that regard, first, 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 (order of the President of the Fourth Chamber of the General Court of 22 February 2005 in Case T‑383/03 Hynix Semiconductor v Council [2005] ECR II‑621, paragraph 31).
16 Second, 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 Telefónica and Telefónica de España v Commission, paragraph 30).
17 The challenging of the request for confidentiality by the interveners must relate to precise items of the procedural documents which have been redacted and indicate the reasons for which confidentiality with regard to those items should be refused. Hence, a request for confidential treatment must be upheld in so far as it concerns items which have not been disputed, or which have not been expressly and precisely disputed, by the interveners (order of the President of the Fifth Chamber of the General Court of 15 June 2006 in Case T‑271/03 Deutsche Telekom v Commission [2006] ECR II‑1747, paragraphs 12, 14 and 15, and order in Telefónica and Telefónica de España v Commission, paragraph 31).
18 Third, 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 each of the documents and information whose confidentiality is disputed, and in respect of which a request for confidential treatment has been made, is secret or confidential (see, to that effect, order in Hynix Semiconductor v Council, paragraph 38, and order of the President of the Seventh Chamber of the General Court of 14 October 2009 in Case T‑353/08 vwd Vereinigte Wirtschaftsdienste v Commission, not published in the ECR, paragraph 15).
19 The requirement to state reasons for the request for confidentiality incumbent on the applicant is to be assessed in the light of the secret or confidential nature of each of the documents and pieces of information covered. A distinction must be drawn between, first, information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or by nature confidential, such as purely internal information, and, second, documents or information which may be secret or confidential for a reason that is for the applicant to furnish (see, to that effect, orders in Hynix Semiconductor v Council, paragraph 34, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 16).
20 Thus, the secret or confidential character of 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 (order of the President of the Sixth Chamber of the General Court of 18 November 2008 in Case T‑274/07 Zhejiang Harmonic Hardware Products v Council, not published in the ECR, paragraph 25; and orders in vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 27; and Telefónica and Telefónica de España v Commission, paragraph 34).
21 Fourth, 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; vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 24; and Telefónica and Telefónica de España v Commission, paragraph 35).
22 Where confidential treatment is requested in the interests of the applicant, this assessment leads the President to balance, 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 Hynix Semiconductor v Council, paragraph 44, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 25).
23 In any event, an applicant 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 he has decided to place on the file appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (order of the President of the First Chamber, Extended Composition, of the General Court of 29 May 1997 in Case T‑89/96 British Steel v Commission [1997] ECR II‑835, paragraph 24, and order in Hynix Semiconductor v Council, paragraph 46).
24 The requests for confidential treatment made in the present case must be considered in the light of those principles.
25 As a preliminary point, it is necessary to reply to the objection raised by Short Brothers and Bombardier that the applicants’ requests for confidential treatment do not contain adequate statements of the reasons on which they are based. In that regard, they point out inter alia that the applicants have not demonstrated that the items for which they request confidential treatment are not known by the public.
26 It should be noted first of all that it is apparent from the case-law cited in paragraph 20 above that the scope of the obligation to provide justification depends on whether or not a piece of information is confidential or secret by nature. Therefore, where it is concluded that the items redacted may be regarded as being confidential or secret by nature, the brevity of the reasoning given by the applicants will not constitute an obstacle to the granting of the request for confidentiality. It will be different if the confidential or secret character of those items is not sufficiently clear and therefore required additional reasoning.
27 Moreover, although it is the case that information may lose its secret or confidential nature where the general public or certain specialist groups may have access to it (see, to that effect, order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 71), it is for the party challenging the secret or confidential nature of that information to provide evidence that there has been such a loss. Short Brothers and Bombardier cannot therefore validly plead that the applicants have not demonstrated that the information is still confidential or secret.
28 As regards, in the first place, the request for confidential treatment of paragraph 33 of the application, of the items redacted in paragraph 30 of the defence and in footnote 20 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland, the applicants justify it by the fact that it concerns OGMA’s business plan.
29 Short Brothers and Bombardier contend that the request for confidential treatment of those items should be refused since it is not accompanied by any explanation as to the content of those plans, their date or their confidential nature, and the applicants have not demonstrated that those items are not known by the public or are still sufficiently recent to be protected as confidential. Short Brothers and Bombardier also contend that in any event those items should be communicated to them so that they can exercise their procedural rights. They note in that regard that both the Commission and the United Kingdom of Great Britain and Northern Ireland rely on paragraph 33 of the application in challenging the admissibility of the action in so far as it has been brought by OGMA.
30 Since a business plan constitutes information that may be described as secret or confidential by nature the applicants were not required to provide any reasoning apart from a description of its content.
31 However, the information contained in paragraph 33 of the application is no longer confidential or secret in relation to Short Brothers and Bombardier since it also appears, in greater detail, in paragraphs 52 to 62 of the non-confidential version of the complaint which the applicants filed with the Commission, which the Commission communicated to them and extracts from which appear in Annex O.8 to the observations of Short Brothers and Bombardier. The request for confidentiality must, therefore, be rejected with regard to that information. The same applies to the information contained in paragraph 30 of the defence, since it also appears in paragraph 60 of the non-confidential version of the complaint.
32 Hence, the request for confidentiality must be rejected in so far as it concerns paragraph 33 of the application and the items redacted in paragraph 30 of the defence. The same applies with regard to the items redacted in footnote 20 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland, since they consist merely of a reference to paragraph 33 of the application and are not therefore confidential or secret.
33 Secondly, as regards the items redacted in paragraph 42 of the application, paragraph 21 of the reply, paragraph 45 of the applicants’ observations on the statement in intervention of the United Kingdom of Great Britain and Northern Ireland and footnote 51 in their observations on the statement in intervention of Short Brothers and Bombardier, and also Annex A.15 to the application (‘Estimate of Revenue Generated by [E190 and E195 aircraft] for 2008 and First Three Quarters of 2009’), confidential treatment is requested for them on the ground that they include information relating to Embraer’s revenue for 2008 and 2009. More specifically, the information relates to the share of revenue deriving from the sale of E190 and E195 aircraft.
34 Short Brothers and Bombardier contend that the applicants do not claim that the information for which they request confidentiality has not been published or that it cannot be deduced from other information that is publicly known, such as the number of aircraft delivered and the list prices. In the absence of explanation regarding this point, confidentiality cannot be granted. Moreover, in any event the request for confidentiality should be rejected in so far as Annex A.15 is concerned, since it concerns the entirety of that annex, and the applicants do not identify any exceptional circumstance which would justify confidentiality. Short Brothers and Bombardier submit that they require access to this information in order to submit their observations on whether it is admissible for Embraer to challenge the merits of the contested decision.
35 It must be pointed out that the information in question is secret or confidential by nature. Moreover, since it relates to the years 2008 and 2009 it cannot be treated as historic since it is less than five years old (see, to that effect, order of the President of the Fifth Chamber of the General Court of 1 March 2007 in Case T‑336/04 TVDanmark and Kanal 5 Denmark v Commission [2007] ECR II‑491, paragraph 56, and order in Hynix Semiconductor v Council, paragraph 60).
36 However, it is apparent from reading some of the evidence provided by Short Brothers and Bombardier that Embraer has made public various pieces of information concerning the number of aircraft sold, their list prices and even its results (Annexes O.1 ‘Extracts from Embraer Annual Report 2009’, O.2 ‘Embraer press release, Embraer releases third quarter results in US GAAP’ and O.3 ‘Aircraft list prices’). It is reasonable to assume that such information will allow a fairly accurate estimate to be made of the significance of the sale of E190 and E195 aircraft for Embraer.
37 Moreover, communication of such information must be regarded as necessary in order for Short Brothers and Bombardier to exercise their procedural rights. In their application, the applicants justify Embraer’s right to challenge the merits of the contested decision, inter alia, by the fact that its position on the market for finished aircraft with 100 to 149 seats is substantially affected by the aid in question in view, inter alia, of the share of its revenue coming from that market, through the sale of its E190 and E195 aircraft. If Short Brothers and Bombardier are to exercise their procedural rights they must therefore be in a position to access information concerning the share of Embraer’s revenue coming from the sale of aircraft competing on that market in order to make their observations effectively on the applicants’ assertion in that regard.
38 In those circumstances, it must be concluded that the balance of interests here requires the disclosure of information where uncertainty exists as to whether it should remain secret or confidential and it is needed in order for Short Brothers and Bombardier to exercise their procedural rights.
39 The request for confidentiality must therefore be rejected in so far as it concerns the items redacted in paragraph 42 of the application, paragraph 21 of the reply, paragraph 45 of the applicants’ observations on the statement in intervention of the United Kingdom of Great Britain and Northern Ireland and footnote 51 of the applicants’ observations on the statement in intervention of Short Brothers and Bombardier, and also Annex A.15 to the application.
40 Thirdly, with regard to paragraphs 37, 54 to 62 and the items redacted in paragraph 226 of Annex A.5 to the application (‘Confidential version of [the complaint]’), and footnote 26 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland, the applicants justify their request for confidentiality by the fact that their complaint contains details of their business activities, customer lists, and research and development investment information.
41 Short Brothers and Bombardier note that the applicants’ request does not provide any further details of the information for which they request confidential treatment. They contend, moreover, that the list of Embraer’s customers in paragraph 37 of Annex A.5 has been made public. As for paragraphs 54 to 62 of Annex A.5, Short Brothers and Bombardier already have them in their possession, since they were only lightly redacted in the non-confidential version of the complaint given them by the Commission. Lastly, they state that they require communication of Annex A.5 in its entirety in order to exercise their procedural rights properly.
42 As regards, first of all, the list of customers given in paragraph 37 of Annex A.5, it is apparent from the documents provided by Short Brothers and Bombardier originating from Embraer (Annexes O.5 ‘Print out from Embraer website showing customers’, O.6 ‘Embraer press release (17 January 2011), Embraer closes out 2010 with 246 jets delivered’ and O.7 ‘Who is flying E-Jets?’) that Embraer discloses the identities of some of its customers on its website and in various documents available to the public. Hence, the applicants cannot claim that such information is confidential or secret. The list given in paragraph 37 of Annex A.5 appears to be more complete than the list that can be deduced from reading Annexes O.5, O.6 and O.7. However, in a situation in which the identities of some at least of Embraer’s customers have been disclosed, it was for the applicants to specify which of the customers listed in paragraph 37 of Annex A.5 continued to be secret or confidential, and to limit its request for confidentiality to those customers. In the absence of clarification on that point, the request for confidentiality must be rejected with regard to paragraph 37 in its entirety.
43 As regards, secondly, paragraphs 54 to 62 of Annex A.5, it is apparent from Annex O.8. (‘Extracts from non-confidential version of Embraer’s complaint’) that Short Brothers and Bombardier received from the Commission a version of the applicants’ complaint containing several items of information for which the applicants request confidentiality. It necessarily follows that such items are no longer secret or confidential in relation to Short Brothers and Bombardier. This is the case as regards paragraph 54 in its entirety, the first subparagraph of paragraph 55, beginning ‘PC-12’, and the last subparagraph beginning ‘Boeing’, paragraph 56 in its entirety, paragraph 57 except for the table contained in it, paragraphs 58 to 60 in their entirety, paragraph 61 except for the table contained in it and paragraph 62 in its entirety.
44 As regards, thirdly, the items redacted in paragraph 226 of Annex A.5 and the passages in paragraphs 55, 57 and 61 of that annex, of which Short Brothers and Bombardier have not indicated they have any knowledge, it must be concluded that they are secret or confidential by nature. Moreover, in so far as Short Brothers and Bombardier do not specify in what way knowledge of that information is necessary in order for them to exercise their procedural rights, the balance of interests here requires that the request for confidentiality in respect of those items be granted.
45 As regards, fourthly, Annex A.28 (‘Embraer Market Forecast’) and footnote 50 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland, the applicants justify their request for confidentiality by the secret or confidential character of their market forecasts for finished aircraft with 100 to 149 seats.
46 Short Brothers and Bombardier point to the brevity of the reasoning of the request for confidentiality with regard to Annex A.28. They also note that market forecasts are frequently published by aircraft manufacturers, including Embraer. They observe, moreover, in essence, that Annex A.28 provides justification for the statement contained in the application that their aircraft would capture 33% of the market and consider that in order to exercise their procedural rights they must be in a position to verify the veracity of that statement so that they can make their observations effectively on the applicants’ first and fourth pleas in law.
47 Annex A.28 comprises a table setting out Embraer’s forecast of sales of various aircraft over the period 2014-2027. As is shown by the evidence provided by Short Brothers and Bombardier (Annex O.9 ‘Embraer document, Market Outlook 2010-2019’) or by the applicants themselves (Annex A.29 ‘Boeing Current Market Outlook 2008-2027’ and Annex A.30 ‘Airbus Global Market Forecast 2007-2026’), it appears to be relatively common in the aircraft industry for forecasts of sales to be published. Such forecasts do not necessarily relate to the specific market for aircraft with 100 to 149 seats. However, the very fact that those forecasts are published tends to place them in the category of documents or information which may be secret or confidential for a reason that is for the applicant to furnish, rather than in the category of information which is by nature secret or confidential. In those circumstances, merely stating that Annex A.28 consists of ‘Embraer market forecast’ does not demonstrate that it is confidential.
48 In any event, the balance of interests here requires that the information in that annex should be communicated to Short Brothers and Bombardier. In so far as the applicants complain that the Commission accepted that the aircraft manufactured by Short Brothers and Bombardier would capture around 15 to 25% of the market whereas they estimate it will be 33%, the exercise of procedural rights by Short Brothers and Bombardier requires that, in order to make their observations effectively, they be in a position to ascertain the information relied upon by the applicants.
49 The request for confidentiality must therefore be rejected so far as Annex A.28 is concerned. The same applies with regard to the items redacted in footnote 50 in the statement in intervention of the United Kingdom of Great Britain and Northern Ireland, since they consist merely of a reference to Annex A.28 and cannot therefore be in any way confidential or secret.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The requests for confidential treatment, in relation to Short Brothers plc and Bombardier, Inc., of paragraph 55 (second, third, fourth, fifth and sixth subparagraphs), the tables in paragraphs 57 and 61 and the items redacted in paragraph 226 of Annex A.5 to the application are granted.
2. The requests for confidential treatment are refused as to the remainder.
3. A non-confidential version of the application, conforming to point 1 of this operative part, communicated by the applicants within the period prescribed by the Registrar, shall be served by the Registrar on Short Brothers and Bombardier.
4. Costs are reserved.
Luxembourg, 24 April 2012.