ORDER OF THE PRESIDENT OF THE COURT
10 October 2023 (*)
(Appeal – Confidentiality – Applicant at first instance – Intervener at first instance – Information removed from the file at first instance)
In Case C‑457/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 20 July 2023,
Deutsche Lufthansa AG, established in Cologne (Germany), represented by J. Burger, H.‑J. Niemeyer, C. Sielmann and C. Wilken, Rechtsanwälte,
appellant,
the other parties to the proceedings being:
Ryanair DAC, established in Swords (Ireland),
Condor Flugdienst GmbH, established in Neu-Isenburg (Germany),
applicants at first instance,
European Commission, represented by L. Flynn, J. Carpi Badía and F. Tomat, acting as Agents,
defendant at first instance,
Federal Republic of Germany,
French Republic,
interveners at first instance,
THE PRESIDENT OF THE COURT
having regard to the proposal from the Judge-Rapporteur, S. Rodin,
after hearing the Advocate General, G. Pitruzzella,
makes the following
Order
1 By its appeal, Deutsche Lufthansa AG asks the Court of Justice to set aside the judgment of the General Court of the European Union of 10 May 2023, Ryanair and Condor Flugdienst v Commission (Lufthansa; COVID-19) (T‑34/21 and T‑87/21, EU:T:2023:248), by which the General Court annulled Commission Decision C(2020) 4372 final of 25 June 2020 concerning State Aid SA 57153 – Germany – COVID-19 – Aid to Lufthansa, as rectified by Commission Decision C(2021) 9606 final of 14 December 2021.
2 By document lodged at the Registry of the Court of Justice on 20 July 2023, Deutsche Lufthansa applied to the Court for confidential treatment, vis-à-vis Ryanair DAC and Condor Flugdienst GmbH, applicants at first instance, and vis-à-vis the French Republic, intervener at first instance, in respect of certain information related to its own financial and operational situation that is included in Annex A.2 to its appeal and to which reference is made in various paragraphs of that appeal. To that end, Deutsche Lufthansa has produced a non-confidential version of the appeal and its annexes. By document lodged at the Court Registry on 3 August 2023, the European Commission stated that it agreed with that non-confidential version of the appeal and its annexes and did not make any additional application for confidential treatment.
3 Deutsche Lufthansa observes that Annex A.2 constitutes the answer provided by the Federal Republic of Germany, dated 8 June 2020, to a request for information by the Commission on the company’s cost structure, its access to capital markets and its operational strategies. The appellant states that those various items of information were also communicated by the Commission to the General Court following measures of inquiry that the latter adopted under Article 91(b) of its Rules of Procedure, by orders of 5 January 2022, respectively, in Case T‑34/21 and Case T‑87/21. By those orders, the General Court, however, treated that information, on an interim basis and in accordance with Article 103(1) of its Rules of Procedure, as confidential vis-à-vis the applicants at first instance and the interveners at first instance. By orders of 11 May 2022, one in Case T‑34/21 and the other in Case T‑87/21, the General Court decided that that same information was not relevant in order for it to rule in the case before it and removed that information from the file, with the result that it was not communicated to those parties.
4 It should be borne in mind that Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. In addition, in accordance with Article 172 of those rules, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service of the appeal. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on all the parties to the proceedings, including on the parties admitted as interveners before the General Court.
5 However, where a party is requesting, vis-à-vis parties that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis those same parties in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (order of the President of the Court of 22 March 2022, Google and Alphabet v Commission, C‑48/22 P, EU:C:2022:207, paragraph 5 and the case-law cited). That case-law should be applied, mutatis mutandis, in the context of a request for confidential treatment, vis-à-vis applicants at first instance, in respect of material produced before the Court of Justice which has already been treated as confidential before the General Court on the basis of Article 103 of the latter’s Rules of Procedure, after being produced following a measure of inquiry under Article 91(b) of those rules.
6 In the present case, the information for which confidential treatment is sought was initially treated at first instance, by two orders of the General Court of 5 January 2022, as confidential on an interim basis. Subsequently, after examining that information, the General Court decided, by two orders of 11 May 2022, to remove it from the file of the pending cases. It found that that information was not relevant in order to rule in the proceedings on the ground that its substance was in any event apparent from the non-confidential version of the document including it.
7 It follows that the information covered by the present request for confidential treatment did not ultimately benefit from such treatment vis-à-vis other parties in the proceedings at first instance, since the General Court removed it from the file without proceeding to weigh its confidentiality against the requirements linked to the right to effective judicial protection, as laid down in Article 103(2) of its Rules of Procedure.
8 Consequently, that information must be communicated to the other parties to the appeal proceedings, including the interveners at first instance, pursuant to the provisions of the Rules of Procedure of the Court of Justice referred to in paragraph 4 of the present order (see, to that effect, order of the President of the Court of 25 September 2018, Bayer CropScience and Bayer v Commission, C‑499/18 P, EU:C:2018:785, paragraph 8).
9 In that regard, it must be observed, first, that according to settled case-law, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only, as the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 68, and of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 69).
10 Second, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. Consequently, in accordance with settled case-law, the jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas and arguments debated before the General Court. A party cannot, therefore, put forward for the first time before the Court of Justice a complaint which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 6 October 2021, Sigma Alimentos Exterior v Commission, C‑50/19 P, EU:C:2021:792, paragraphs 37 and 38).
11 Consequently, there is no need, in principle, for a party to appeal proceedings to produce before the Court of Justice information relating to the factual circumstances of the case at issue, which, even though it was produced before the General Court as a result of a measure of inquiry under Article 91(b) of the Rules of Procedure of the General Court, was removed from the file by that court on the ground that, following the examination foreseen by Article 103(2) of those rules, that information was not considered as being relevant in order to rule in the case because its substance was in any event apparent from the non-confidential version. Such information, since it was not included in the file that served as the basis for the General Court’s ruling, cannot, in principle, be relevant for the review by the Court of Justice of the lawfulness of that ruling by the General Court at the appeal stage.
12 In those circumstances, it is necessary to dismiss the application made by Deutsche Lufthansa for the Court of Justice to treat as confidential, first, vis-à-vis Ryanair and Condor Flugdienst, applicants at first instance, and, second, vis-à-vis the French Republic, intervener at first instance, the information included in the confidential version of the appeal and of Annex A.2 thereto and which is referred to in paragraph 2 above, which was removed from the file at first instance by the General Court.
13 Nevertheless, in order to allow Deutsche Lufthansa to safeguard its commercial interests, it is appropriate to grant it a period of 15 days, to run from service of this order, to inform the Court of Justice whether it wishes to maintain that information in its appeal. In that case, the confidential version of the appeal and Annex A.2 will be served on the other parties, in accordance with the provisions of the Rules of Procedure of the Court of Justice referred to in paragraph 4 above. If it wishes to remove that confidential version from the file, solely the non-confidential version of the appeal and its annexes will be kept in the file of the case on appeal and be served on the other parties.
On those grounds, the President of the Court hereby orders:
1. The application for confidential treatment is dismissed.
2. Deutsche Lufthansa AG has a period of 15 days, which runs from service of the present order, to inform the Court of Justice whether it wishes to maintain in the file of the present case the confidential version of Annex A.2 to the appeal and the references to that annex in that appeal.
3. The costs are reserved.
Luxembourg, 10 October 2023.
A. Calot Escobar | | K. Lenaerts |