ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
10 May 2012 (*)
(Confidentiality – Challenge)
In Case T‑354/08,
Diamanthandel A. Spira BVBA, established in Antwerp (Belgium), represented by J. Bourgeois, Y. van Gerven, F. Louis and A. Vallery, 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 Diamanthandel A. Spira BVBA’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/38.826/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 21 August 2008, the applicant, Diamanthandel A. Spira BVBA (‘Spira’), 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/38.826/E-2 – De Beers/DTC Supplier of Choice) (‘the contested decision’).
2 By document lodged at the Court Registry on 18 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 30 January 2009, Spira applied for confidential treatment vis-à-vis De Beers of certain information in the application and the annexes thereto.
4 By letter of 13 February 2009, Spira 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 Spira 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 By letter of 13 October 2010, Spira applied for confidential treatment vis-à-vis De Beers of certain information in the Commission’s reply of 23 August 2010 to the question posed by the Court on 22 July 2010 with regard to the consequences of the judgment in Case C-441/07 P Commission v Alrosa [2010] ECR I-5949.
8 By letter of 12 November 2010, De Beers contended that none of the passages redacted in the non-confidential version of the Commission’s reply of 23 August 2010 to the Court’s question, communicated to it, should be granted confidential treatment. In the alternative, De Beers submitted that Spira be directed to give further and better particulars of its application for confidential treatment and that De Beers be given a further opportunity to comment on such particulars.
9 Non-confidential versions of the various procedural documents, prepared by Spira, were transmitted to De Beers.
The applications for confidential treatment
Subject-matter of the applications for confidentiality
10 Spira has submitted applications for the confidential treatment of certain information in the application, the defence and the annexes to those procedural documents, and in the Commission’s reply of 23 August 2010 to the question posed by the Court.
11 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 14, 22, 40, 41, 51, 53, 54, 56, 64 to 74, 76, 78, 84, 85, 88, 91, 97, 98, 100 to 102, 111, 117, 118, 121, 127, 132, 133, 135, 138, 139, 141 to 163, 165, 166, 170 to 173, 176, 177, 182, 183, 186 and in footnotes Nos 40 to 43, 50, 51, 56 to 66, 71, 74, 81, 82, 84 to 86, 92 to 95, 99, 101 to 111, 113, 116, 117 and 124 to 127;
– the redacted information in Annex A.2;
– Annexes A.1, A.8, A.14.1 to A.14.4, A.24 to A.30, A.32 and A.34 in their entirety, including reference to them in the list of annexes.
12 As regards, second, the defence and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– title 5.2.2, the redacted information in paragraphs 18, 20, 26, 27, 38, 44 to 47, 58, 59, 79, 82, 84, 85, 87 to 90, 92 to 99, 101, 105, 106, 108 to 110 and in footnotes Nos 8, 10, 32, 50, 61, 63, 68 to 73 and 79 to 81;
– the redacted information in Annex B.1.
13 As regards, third, the Commission’s reply of 23 August 2010 to the question from the Court, the application for confidential treatment vis-à‑vis De Beers relates to the passages setting out the decision contested in the present case and also that contested in Case T-108/07.
The merits of the applications for confidentiality
Preliminary observations
14 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’.
15 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).
16 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 – which has not been amended substantially on the point since – that an application for confidential treatment must be made in accordance with the provisions of the Practice Directions to parties (points 74 to 77, which have not been amended substantially since then either).
17 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.
18 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.
19 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.
20 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).
21 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).
22 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 II-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).
23 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).
24 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).
25 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).
26 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).
27 Where confidential treatment is requested in the interests of the applicant, 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).
28 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).
29 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).
30 The applications for confidential treatment submitted in the present case must be examined in the light of the above-mentioned principles.
The redacted information to which De Beers has not objected
31 The application for confidential treatment of the complaint lodged by Spira on 25 September 2003 (Annex A.2 of the application) has not been disputed expressly and precisely by De Beers inasmuch as the application seeks to restrict disclosure to De Beers solely to the non‑confidential version of that complaint notified to it by the Commission during the administrative procedure.
32 The application for confidential treatment in part of that complaint must therefore be upheld.
The redacted information to which De Beers has objected.
33 Spira’s remaining applications for confidential treatment have all been disputed expressly and precisely by De Beers.
34 First of all, it must be noted that the applications for confidential treatment of certain documents and information do not satisfy the requirement referred to in paragraphs 19 and 20 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, Spira applies for confidential treatment of paragraphs 78 and 84 and footnotes Nos 40, 74 and 102 to 106 of the originating application without even redacting them in part in the non-confidential version of that application. Conversely, Spira redacted all or part of paragraph 86, footnotes Nos 13, 24 and 112 and Annexes A.4 and A.31 of the originating application without referring to them in the relevant applications for confidential treatment.
35 None of those documents or information may therefore be granted confidential treatment.
36 As regards the applications for confidential treatment of the other elements of the application and the defence, and of the Commission’s reply of 23 August 2010 to the question from the Court, it must be found that, while those applications for confidential treatment cannot, in principle, be dismissed for failure to state reasons and lack of precision, account will nevertheless have to be taken of the succinctness of the reasons provided where their confidential nature is not sufficiently clear from the examination of the particulars at issue. Such consideration is, in the interests of the proper administration of justice, a fortiori necessary where, as in the present case, the confidential treatment sought concerns a substantial amount of information (see, to that effect, the 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 23).
37 In the present case, when the documents and information covered by those applications for confidentiality are examined individually, it is apparent that they are neither secret nor confidential.
38 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).
39 That is true of (i) Alrosa’s annual reports (reproduced in Annexes 3 and 4 to Annex A.30 of the originating application, data from which are referred to in that annex, in the tables in paragraphs 147 and 149 of the application and in paragraph 92 of the defence, and referenced in footnote No 69 of the defence), (ii) the internet article on Alrosa (Annex A.32 of the application), and (iii) data taken from Alrosa’s website (Annex 1 to Annex A.30 and footnote No 108 of the application). This also applies to Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 — De Beers) – a summary of which is published in the Official Journal (OJ 2006 L 205, p. 24) and a full non‑confidential version of which is available on the Commission’s website – and the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, also published in the Official Journal (OJ 2006 C 210, p. 2). That decision and those guidelines are referenced in footnotes Nos 41 and 43 of the application and certain aspects of them are set out in paragraph 41 of the application.
40 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).
41 This clearly applies, in the present case, to all the data concerning De Beers, such as (i) 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 and Annex A.27 of the originating application and extracts of which are reproduced in paragraph 182 of that application) and (ii) its results for the year 2007 published on 8 February 2008 (reproduced in Annex 2 to Annex A.30 of the application), all the more so when De Beers is the author of the documents at issue as is the case for those replies and results. 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.34 of the application).
42 Certain facts relating to the Spira’s complaint giving rise to the present dispute must also be regarded as information of which De Beers is aware. Indeed, the Commission communicated to De Beers the non‑confidential version of Spira’s complaint, reproduced in the present case in Annex A.2 of the originating application (order of the President of the Eighth Chamber of the Court of 8 May 2012 in Case T-108/07 Spira v Commission, not published in the ECR, paragraph 60; see also paragraph 31 above), so that the request for additional confidential treatment of two paragraphs of that complaint (paragraphs 125 and 126 of Annex A.2 of the application) of which De Beers is already aware must be dismissed.
43 Lastly, the Court must reject the application for confidential treatment of paragraph 51 of the originating application referring to the rejection of Spira’s complaint against the De Beers-Alrosa Trade Agreement, concluded on 17 December 2001 (the ‘De Beers-Alrosa Agreement’), since De Beers was aware of that information (order in Spira v Commission, paragraph 62).
44 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).
45 In the present case, this applies, for example, to information relating to the complaint lodged by Spira against the De Beers-Alrosa Agreement (information redacted in paragraphs 40 and 111 of the originating application and referred to in title II.4 and in unredacted footnote 40 of the application; see also the following: (i) the redaction of a passage of paragraph 127 of the originating application stating that Spira had referred, in its complaint against the SOC arrangements, to the De Beers-Alrosa Agreement in order to show that De Beers had a dominant position, whereas the relevant passage of the complaint appears in the non‑confidential version of it reproduced in Annex A.2 of the application); (ii) an argument redacted in the application (paragraph 141) and referred to in the defence (unredacted passage of paragraph 89) or the converse (argument not redacted in paragraphs 27 and 185 of the application and referred to in paragraph 101 of the defence for which confidentiality is sought); (iii) various aspects of the appraisal of the market’s ‘foreclosure’ redacted in the table of contents yet included in the body of the defence (title 5.2 and sub-titles); and (iv) a number of annexes of the application completely redacted in the non-confidential version and whose contents are set out in part in the body of the application (see, in particular, paragraph 105 setting out an extract of Annex A.1 of the application and paragraph 93 and footnotes Nos 77 to 79 of the application reproducing extracts from the annex to Annex A.8 of the application). In addition, in some instances, the applications for confidential treatment merely seek to exclude reference to the fact that the Commission is defining its position (see, for example, paragraph 186 of the application, in which the phrase ‘contrary to what the Commission alleges’ is redacted), whereas it is obvious that, since the positions are criticised by Spira and the subject of an action brought against the Commission, they are the Commission’s positions adopted, in particular, in the contested decision.
46 Reference should also be made to the information relating to rough diamond suppliers interviewed in the context of the supplementary procedure (information redacted, in particular, in paragraphs 14, 85 and 86, footnotes Nos 71 and 81, and the annex to Annex A.8 of the application, yet retained, for example, in footnote No 80 and Annex A.7 of the application and in paragraph 72 of the defence).
47 Fourth, information which has been secret or confidential but is five or more years old is neither secret nor confidential and must therefore be treated as historic unless, by way of exception, the applicant demonstrates that, despite their age, those data still constitute essential elements of its commercial position or of that of the third person concerned (orders in Glaxo Wellcome v Commission, paragraph 39, and Hynix Semiconductor v Council, paragraph 60).
48 In the present case, the broker’s letter in response to Spira’s letter of 23 September 2003, informing Spira that the broker could not procure it diamonds in the secondary market and that the customer lists of two suppliers (Rio Tinto and BHP) are full (Annex A.14.1 of the application) must be treated as historic. The applicant has moreover not argued that that information still constitutes an essential element of its commercial position, since it has merely referred to it is a business secret.
49 Fifth, information that is not sufficiently specific or precise to be secret or confidential must not be regarded as secret or confidential (order in Hynix Semiconductor v Council, paragraphs 59 and 75; see also, to that effect, orders in British Steel v Commission, paragraphs 29 and 31, and in Zhejiang Harmonie Hardware Products v Council, paragraphs 33 and 37). That is true, in the present case, of the exchanges of correspondence between Spira and the two diamond suppliers referred to above revealing Spira’s supply requests sent between 2003 and 2008 and refused by those suppliers (paragraph 22 and Annexes A.14.2 to A.14.4 of the application). Admittedly, sources of supply and, in particular, the names of suppliers are, in principle, internal information which must be granted confidential treatment (order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 55; see also, to that effect, order of the President of the Court of 26 November 2010 in Case T‑484/10 R Gas Natural Fenosa v Commission, not published in the ECR, paragraph 20). However, the letters in question do not provide any specific or precise information concerning Spira’s supply. As regards the letters refusing supply (Annexes A.14.2 and A.14.3 of the application) or Spira’s request for supplies for which it has not produced the addressee’s reply (Annex A.14.4 of the application), they are liable to leave De Beers uncertain as to Spira’s suppliers rather than reveal to it their names.
50 Sixth, information which is not by nature business secrets or confidential data, and which Spira has not shown as amounting to such, must be regarded as neither secret nor confidential (see paragraph 24 above). This applies to the following: (i) the initial decision rejecting Spira’s complaint (Annex A.4 of the application) and the supplementary rejection decision, contested in the present case (Annex A.1 of the application); (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) (Annexes A.8 and A.34 of the application); and (iii) Spira’s observations on one of those letters (its observations of 11 February 2008 on the letter of 13 November 2007 reproduced in Annex A.28 of the application).
51 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 ((i) paragraphs 14, 53, 54, 56, 64 to 66, 71 to 74, 76, 91, 97, 98, 101, 102, 117, 118, 121, 132, 133, 135, 138, 139, 141 to 143, 146 to 155, 159, 163, 165, 166, 172, 176, 177 and 182 and footnotes Nos 50, 51, 56, 61, 64 to 66, 82, 84 to 86, 92, 94, 95, 99, 101, 102, 107, 109 to 111, 113, 116, 117 and 124 to 127 of the application, and (ii) paragraphs 18, 20, 27, 38, 44 to 47, 79, 82, 84, 85, 87, 89, 90, 92 to 94, 97 to 99, 105, 106 and 108 to 110 and footnotes Nos 8, 10, 32, 50, 63, 68, 70 to 72 and 79 to 81 of the defence), and to the passages of the reply of 23 August 2010 to the question from the Court, setting out the initial and supplementary rejection decisions.
52 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 Spira or to the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18), and Spira does not claim that they contain business secrets of a commercial, competition-related, financial or accounting nature (see, to that effect, order in Hynix Semiconductor v Council, paragraph 34 above).
53 The same is true of the exchange of correspondence between Spira and the Commission before the contested decision was adopted. That correspondence relates to Spira’s requests for access to documents (Annexes A.24 to A.27, paragraphs 67 to 70 and footnotes Nos 57 and 60 of the application) and also includes (i) a letter from the Commission of 14 March 2008 requesting Spira to submit comments on Alrosa’s replies to the Commission’s request for information, a non‑confidential version of those replies being annexed to that letter (Annex A.29, paragraph 72 and footnote No 62 of the application; paragraphs 26 and 59 of the defence), and (ii) a letter setting out Spira’s criticisms of the SOC arrangements and of De Beers (Annex A.30, paragraph 73 and footnotes Nos 63 and 104 of the application; paragraphs 26 and 59 of the defence).
54 Spira relies on a number of arguments in order to justify confidentiality for the documents and information referred to in paragraphs 50, 51 and 53 above. Before examining them, it must be noted, first of all, that most of those applications for confidential treatment relate to annexed documents in their entirety and that, since an application for confidential treatment may only exceptionally extend to the entirety of an annexed document (see paragraph 18 above), confidential treatment cannot be granted in respect thereof on the basis of general and vague reasoning (order of the President of the Eighth Chamber of the Court of 2 March 2010 in Case T-336/07 Telefónica and Telefónica de España v Commission, not published in the ECR, paragraph 73).
55 In the present case, Spira submits, first, that its complaint was rejected on the basis of lack of Community interest. It is sufficient to note in that regard that that aspect is irrelevant to the assessment of whether a document or piece of information is confidential.
56 Spira submits, second, that it is likely that the documents and information at issue would be used before the Belgian courts, on the basis of the previous conduct of De Beers, which – Spira claims – used documents relating to the present proceedings in the course of other proceedings despite the Court’s objection. That argument cannot succeed. Reference should be made to (i) the settled case-law according to which the parties and interveners in proceedings are to use the pleadings of which copies are sent to them solely for the purpose of exercising their procedural rights in their action (see order in Hynix Semiconductor v Council, paragraph 47, and case-law cited) and (ii) Case T-353/94 Postbank v Commission [1996] ECR II‑921 which stated that once documents from the administrative procedure before the Commission are produced in national legal proceedings or where they are requested to be produced, there is a presumption that the national courts will guarantee the protection of confidential information (paragraph 69). Accordingly, since the general rule is that interveners are to receive a copy of every pleading served on the parties, the fact that the documents at issue may be used against Spira in the context of other proceedings before a national court cannot preclude them from being disclosed to De Beers (see, to that effect, the 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 29).
57 Lastly, although Spira submits, third, that all of its exchanges with the Commission during 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, it is sufficient 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).
58 In any event, even assuming that Spira has established that the documents and information referred to in paragraphs 50 and 51 above are secret or confidential, once 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 Spira’s pleas in law directed against the contested decision if it did not have access to that decision and to all the procedural documents preceding the contested decision to which Spira refers on numerous occasions in order to substantiate its arguments (see paragraphs 27 and 29 above).
59 In addition, the passages of the pleadings setting out Spira’s complaints and arguments and the Commission’s responses to those complaints and arguments are not to be regarded as confidential by nature (see (i) paragraphs 88, 100 to 102, 117, 132, 142 to 145, 155 to 158, 160 to 162, 170 to 173, 182 and 183 and footnote No 93 of the application and (ii) paragraphs 58, 85, 87 to 90, 93 to 97, 101, 108 and 109 and footnotes Nos 61 and 73 of the defence).
60 Without expressly distinguishing that category of information, Spira requests confidential treatment of a number of paragraphs of its pleadings and those of the Commission, in which assessments of the facts relating to the SOC arrangements and De Beers are set out and legal arguments developed in that regard. 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 SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie, paragraph 26).
61 The argument advanced by Spira in order to prove that certain information referred to above is nonetheless confidential in the present case cannot succeed. Spira submits that disclosure of the above criticisms could give rise to retaliatory measures from companies constituting vital sources of supplies for it. However, even if De Beers were to cease supplying rough diamonds to Spira as the latter invokes, Spira has not adduced any evidence to substantiate its fears of hostile conduct from other rough diamond suppliers (see, to that effect, order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraphs 74 to 76), all the more so since, given the interveners’ obligation to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in their action (see paragraph 56 above), those other companies must not be informed by De Beers of the complaints and arguments at issue.
62 In addition, it must be noted that the applications for confidentiality referred to in paragraph 59 above relate to over 25 paragraphs of the application and the defence, with the result that in some instances whole subsections of Spira’s or the Commission’s arguments are redacted, including the titles of those subsections. It follows that Part IV.3.2 of the application and section 5.2 of the defence are almost entirely redacted in the non-confidential version of those pleadings and that some of Spira’s complaints are purely and simply omitted. Such omissions clearly breach point 75 of the Practice Directions to parties (see paragraph 18 above), and prejudice the procedural rights of De Beers, which would not even be informed of certain complaints directed against the contested decision if the relevant applications for confidential treatment were upheld.
63 Lastly, Annex B.1 of the defence (and paragraphs 96, 99 and 101 of the defence which reproduces information from that annex), which comprises the defence in Case T-108/07, is also not to be regarded as confidential in the present case. 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-108/07. Since the application for confidential treatment of that pleading was dismissed in Case T-108/07 by the order in Spira v Commission, the application for confidential treatment of Annex B.1 of the defence must also be dismissed.
64 It follows from all of the foregoing that, with the exception of that referred to in paragraph 32 above, Spira’s applications for confidential treatment must be dismissed.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment vis-à-vis De Beers and De Beers UK Ltd of Annex A.2 of the originating application is upheld solely in relation to those passages which were not disclosed to them during the administrative procedure.
2. The applications of Diamanthandel A. Spira BVBA are dismissed as to the remainder.
3. The Registrar shall serve on De Beers and De Beers UK a non‑confidential version of the procedural documents consistent with point 1 of this operative part, to be provided by Diamanthandel A. Spira BVBA within the period prescribed by the Registrar.
4. 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.
5. Costs are reserved.
Luxembourg, 10 May 2012.