Provisional text
ORDER OF THE PRESIDENT
OF THE NINTH CHAMBER OF THE GENERAL COURT
29 March 2017 (*)
(Confidentiality – Challenge by the interveners)
In Case T-851/14,
Slovak Telekom a.s., established in Bratislava (Slovakia), represented by D. Geradin, lawyer, and R. O’Donoghue, Barrister,
applicant,
v
European Commission, represented by M. Farley, G. Koleva and L. Malferrari, acting as Agents,
defendant,
supported by
Orange Slovensko a.s., established in Bratislava,
Slovanet, a.s., established in Bratislava,
represented by P. Tisaj, lawyer,
interveners,
APPLICATION under Article 263 TFEU for annulment of Articles 1 and 2 of Commission Decision C(2014) 7465 final of 15 October 2014 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 – Slovak Telekom), as rectified by Commission Decision C(2014) 10119 final of 16 December 2014, and by Commission Decision C(2015) 2484 final of 17 April 2015, in so far as that decision concerns the applicant and, in the alternative, for a reduction in the amount of the fine imposed on it in that decision.
THE PRESIDENT
OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Registry of the Court on 26 December 2014, the applicant, Slovak Telekom a.s., brought an action for annulment of Articles 1 and 2 of Commission Decision C(2014) 7465 final of 15 October 2014 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 – Slovak Telekom), as rectified by Commission Decision C(2014) 10119 final of 16 December 2014, and by Commission Decision C(2015) 2484 final of 17 April 2015, in so far as that decision concerns it (‘the contested decision’) and, in the alternative, for a reduction in the amount of the fine imposed on it in the contested decision.
2 By documents lodged at the Court Registry on 29 May and 1 June 2015 respectively, Slovanet a.s. and Orange Slovensko a.s. applied for leave to intervene in the present case in support of the form of order sought by the European Commission.
3 At the request of the Commission, the time limit for lodging a request for confidential treatment was extended and fixed at 30 October 2015.
4 By letter of 30 October 2015, the applicant requested confidential treatment, as regards Slovanet and Orange Slovensko, of certain information contained in the application and the reply, and also in some of the annexes thereto. By letter of the same day, the Commission requested confidential treatment of certain information contained in the application and the statement in defence, and in certain documents in the annexes thereto.
5 By letter of 10 December 2015, the Commission requested confidential treatment, as regards Slovanet and Orange Slovensko, of certain information contained in the reply. Moreover, by letter of 28 January 2016, it requested confidential treatment, as regards those same companies, of certain information contained in the rejoinder and in a document contained in an annex thereto.
6 By order of the President of the Second Chamber of the Court of 24 June 2016, Slovanet and Orange Slovensko were granted leave to intervene in support of the form of order sought by the Commission. The decision on the merits of the requests for confidentiality was reserved.
7 Non-confidential versions of the various procedural documents, prepared by the main parties, were communicated to the interveners. At their request, the time limit for submitting challenges to the requests for confidential treatment was extended and fixed at 8 August 2016
8 By letters of 5 August 2016, the interveners contested the confidentiality of various passages which were redacted in the non-confidential versions of the procedural documents. In a common letter dated the same day, the interveners explained that their challenges were identical in scope, except the objections to confidential treatment relating to each of them specifically and set out in section II.C of each of their challenges.
9 After those challenges were lodged, the time period previously fixed for lodging statements in intervention was interrupted.
10 By decision of the President of the General Court of 7 October 2016, a new Judge-Rapporteur was designated and the case was reassigned to the Ninth Chamber.
The requests for confidential treatment
The requests for confidentiality
11 It should be noted, as a preliminary point, that the requests made by the main parties are vitiated by a number of clerical errors, as evidenced by a comparison of the terms of those requests with the common, non-confidential version of the case file, as proposed by the main parties. Given the considerably obvious nature of the clerical errors in question, reference must be had not to the paragraphs as referred to in the requests, but to the paragraphs in the case file, as identified in the non-confidential version thereof (see, to that effect, orders of 2 March 2010, Telefónica and Others v Commission, T-336/07, paragraph 16, and 6 October 2011, Vivendi v Commission, T-432/10, not published, EU:T:2011:580, paragraph 8; see also order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 14 and the case-law cited).
12 Firstly, as regards the application and the annexes thereto, the applicant seeks confidential treatment as regards the interveners with respect to the following information:
– the information redacted in paragraphs 14, 87, 99, 103 to 105, 107, 128, 129, 132 to 135, 137 to 140, 153, 163, 165, 166, 168, 170 to 174, 178, 179, 181, 190 to 197 and 207 to 210, in the title of sections V.A.3, V.A.4, V.B.2, V.B.3, footnote No 82, and in the table of contents;
– the information redacted in Annexes A.1 to A.5, A.7, A.11, A.12 and A.19 to A.21.
13 The Commission requests confidential treatment as regards the interveners of the following information in the application and the annexes thereto:
– the information redacted in paragraphs 20, 21, 41, 42, 48, 66, 77, 85, 102 to 106, 108, 110, 128, 181 and 196, in footnotes Nos 2, 44, 47, 48, 50, 73, 89, 117 and 128, and in the list of annexes;
– the information redacted in Annexes A.1, A.2, A.4, A.5, A.7, A.9, A.11, A.19 and A.20.
14 It should also be noted that, as regards the contested decision contained in annex A.5, the requests for confidentiality put forward by the applicant and the Commission are similar and, as is apparent from the common non-confidential version of that document in the file, concern all of the information redacted in the non-confidential version of the contested decision published by the Commission on its Internet site.
15 Secondly, regarding the statement in defence and the annexes thereto, the Commission requests confidential treatment, as regards the interveners, of the following information:
– the information redacted in paragraphs 59, 60, 80, 110 to 112, 168, 169, 172, 180, 181 and 190, footnotes Nos 10, 20 and 106, in title 4.4.2.6 and in the table of contents;
– the information redacted in Annexes B.2, B.3 and B.9.
16 Thirdly, as regards the reply, the applicant requests confidential treatment, as regards the interveners, of the following information:
– the information redacted in paragraphs 99, 108, 123, 127 to 130, 134 to 136 and 155 and footnote No 127;
– the information redacted in Annex C.1.
17 The Commission requests confidential treatment as regards the interveners of the information redacted in paragraphs 2, 15, 16, 90, 110, 127 and 155 of the reply, and in footnotes Nos 65, 79 and 127 of that procedural document.
18 Fourthly, regarding the rejoinder and the annexes thereto, the Commission requests confidential treatment, as regards the interveners, of the following information:
– the information redacted in paragraphs 1 and 40, and in footnote No 97;
– the information redacted in Annex D.3.
Subject matter of the interveners’ challenge to the requests for confidential treatment
19 Both interveners challenge the following information in the requests for confidentiality put forward by the applicant and the Commission:
– in the application: the information redacted in paragraphs 14, 87, 139 (table No 1), 140 (table No 2), 153 (table No 3), 207, 209 and 210, and in footnote No 82;
– in the statement of objections contained in Annex A.1: the information redacted in paragraphs 99, 203 to 205, 230 to 234, 236 to 240, 242 to 244, 251, 257, 258, 297 to 299, 301 to 303, 307, 315, 356, 698, 737, 739, 748, 751, 753, 759, 787, 788, 796, 799, 844, 846, 884, 885, 896, 1224 to 1226, 1244 to 1249, 1264, 1266, 1280 to 1282, 1290, 1359, 1360 and 1538, and in footnotes Nos 365, 383, 384, 477, 1222, 1223, 1225, 1226, 1235, 1237 and 1722;
– in the applicant’s response to the statement of objections contained in Annex A.2: the information redacted in paragraphs 697 to 705, 709 to 712, paragraph 713, second sentence, paragraphs 714, 715, 780 to 782, 1503 to 1505, 1507 to 1513 and 1589;
– in the letter of facts contained in Annex A.3: the information redacted in paragraphs 3.c (table) and 3.d (graph) of the annex to that document;
– in the applicant’s response to the letter of facts, contained in Annex A.4: the information redacted in paragraphs 129 to 132, and in footnote No 76;
– in the contested decision contained in Annex A.5: the information redacted in paragraphs 56 to 58, 61, 62, 65, 66, 69, 70, paragraph 75(a) (table No 8), paragraphs 123, 215, 240, 241, 310, 339, 341, 559 to 561, 590, 591, 594, 596, 604, 645, 646, 647 (second sentence), 648, 657, 658, 691, 696, 698, 711, 716, 769, 770, 812, 931 to 933, 946, 968, 981, 990 to 996, 1005, 1006, 1010, 1013, 1014, 1019, 1111, 1116, 1491 and 1495, and in footnotes Nos 108, 136, 382 to 384, 905, 1462 and 1463;
– in the expert’s report contained in Annex A.7: the information redacted on pages 10 (graph), 11 (graph), 12 (table) and 17;
– in the annex to the third issues paper of 30 August 2010 contained in Annex B.2: the information redacted in paragraphs 8 (graph) and 10 (table);
– in the reply: the information redacted in paragraphs 123, 128, 129 and 134 to 136.
20 Orange Slovensko also challenges the following information covered by the requests for confidentiality:
– in the statement of objections contained in Annex A.1, the information redacted in paragraphs 593, 594, 758, 1272 and 1355;
– in the applicant’s response to the statement of objections contained in Annex A.2: the information redacted in paragraphs 508 (second paragraph in the section entitled ‘Orange’) and 1201;
– in the applicant’s response to the letter of facts contained in Annex A.4: the information redacted in paragraphs 355, 356, 803, 804, 815, 818, 821, 822, 826 and paragraph 968, sixth sentence;
– in the statement in defence: the information redacted in paragraph 60 (fourth sentence);
– in the annex to the third issues paper of 30 August 2010 contained in Annex B.2: the information redacted in paragraphs 20, 21 and 25, and in footnote No 8, first sentence.
21 Slovanet challenges, in addition to the information identified in paragraph 19 above, the following information covered by the requests for confidentiality:
– in the statement of objections contained in Annex A.1 to the application: the information redacted in paragraphs 385, 387, 389, 390, 456, 457, paragraphs 745 (first paragraph) and 1272, and in footnotes Nos 589 and 594;
– in the applicant’s response to the statement of objections contained in Annex A.2: the information redacted in paragraphs 508 (second paragraph in the section entitled ‘Slovanet’), 1101, 1107 and 1261 to 1264;
– in the applicant’s response to the letter of facts contained in Annex A.4: the information redacted in paragraphs 838, 841 and 968, seventh sentence;
– in the contested decision contained in Annex A.5: the information redacted in paragraph 421.
Appraisal of the requests for confidentiality
Considerations of principle
22 Article 144(5) of the Rules of Procedure of the General Court provides: ‘[t]he President shall decide on the application to intervene as soon as possible, by order, and, where applicable, on the communication to the intervener of information which it is claimed is confidential’.
23 Article 144(7) of those Rules of Procedure further provides: ‘[i]f the application to intervene is granted, the intervener shall receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication pursuant to paragraph 5’. That provision thus lays down the principle that the interveners are to receive a copy of all procedural documents served on the main parties, except for certain confidential documents or information excluded from such communication by way of derogation (see orders of 1 March 2007, TVDanmark and Kanal 5 Denmark v Commission, T-336/04, EU:T:2007:66, paragraph 40 and the case-law cited, and 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 35 and the case-law cited).
24 In that regard, it should be observed, firstly, that a request for confidential treatment must be submitted in accordance with the Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2015 L 152, p. 1), paragraph 221 of which provides that an application for confidential treatment must accurately identify the particulars or passages to be excluded and state the reasons for which each of those particulars or passages is regarded as confidential, and that failure to provide such information may result in the application being refused by the Court (orders of 5 October 2015, SNCM v Commission, T-1/15, not published, EU:T:2015:833, paragraph 10, and Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 36).
25 It follows that an application for confidential treatment which is insufficiently detailed as to the particulars it covers will be refused (see, to that effect, orders of 1 March 2007, TVDanmark and Kanal 5 Denmark v Commission, T-336/04, EU:T:2007:66, paragraph 43, of 11 June 2007, Deutsche Post v Commission, T‑266/02, not published, EU:T:2007:166, paragraph 21, and 8 May 2012, BVGD v Commission, T-104/07, not published, EU:T:2012:227, paragraph 32 and the case-law cited).
26 Secondly, when a party submits a request for confidential treatment, the President of the formation of the Court that is hearing the case is to give a decision solely on the documents and information the confidentiality of which is disputed (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 36 and the case-law cited, and 13 April 2016, BSCA v Commission, T-818/14, not published, EU:T:2016:712, paragraph 24).
27 A request for confidential treatment under Article 144(5) of the Rules of Procedure must therefore, in principle, be granted, provided that it relates to particulars the confidential nature of which is not disputed by the intervener (see order of 9 December 2013, Castelnou Energía v Commission, T-57/11, not published, EU:T:2013:669, paragraph 19 and the case-law cited).
28 The intervener’s opposition to the confidentiality sought must relate to specific matters which have been redacted in the procedural documents and must state the reasons for which confidentiality with regard to those matters should be refused. Therefore, a request for confidential treatment must also be granted, provided that it relates to particulars the confidential nature of which has not been disputed by the intervener, or at least not in an explicit and specific manner (see order of 5 October 2012, France Télécom v Commission, T-258/10, not published, EU:T:2012:524, paragraph 21 and the case-law cited, and order of 14 September 2016, Prysmian and Prysmian cavi e sistemi v Commission, T-475/14, not published, EU:T:2016:580, paragraph 29).
29 Thirdly, in so far as a request for confidential treatment is disputed, the President of the formation of the Court that is hearing the case has the task first of all of examining whether the documents and information whose confidentiality is disputed are secret or confidential (orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 38, and 13 April 2016, BSCA v Commission, T-818/14, not published, EU:T:2016:712, paragraph 26).
30 The requirement to state reasons for the application for confidentiality to which the main parties are subject must be assessed in the light of the secret or confidential nature of each document and item of information covered. A distinction may be drawn between, first, information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, second, other documents or information which may be secret or confidential, for a reason that is for the applicant to furnish (orders of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T-353/08, not published, EU:T:2009:402, paragraph 16; 17 July 2014, InterMune UK and Others v EMA, T-73/13, not published, EU:T:2014:728, paragraph 17; and 15 April 2016, Novartis Europharm v Commission, T-269/15, not published, EU:T:2016:279, paragraph 12).
31 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 confidential by its very nature (orders of 5 May 2008, Zhejiang Harmonic Hardware Products v Council, T-274/07, not published, EU:T:2008:623, paragraph 25, and 10 May 2012, BVGD v Commission, T-339/08, not published, EU:T:2012:232, paragraph 22).
32 Fourthly, where the examination leads to the conclusion that some of the documents and information whose confidentiality is disputed are confidential, the President of the formation of the Court that is hearing the case is then to assess and weigh up the competing interests, for each document and piece of information (orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 42, and 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T-353/08, not published, EU:T:2009:402, paragraph 24).
33 Thus, where confidential treatment is requested in the interests of the applicant, the President of the formation of the Court that is hearing the case weighs in the balance, for each document or piece of information, the applicant’s legitimate concern to prevent serious harm to their interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 44; 8 May 2012, BVGD v Commission, T-104/07, not published, EU:T:2012:227, paragraph 40, and 15 September 2016, DeutscheTelekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 43).
34 In any event, the main parties must, given the adversarial and public nature of the judicial proceedings, envisage the possibility that some of the confidential documents or information which they have decided to place on the file appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 46, and 5 October 2015, SNCM v Commission, T-1/15, not published, EU:T:2015:833, paragraph 19).
35 It is in the light of the foregoing principles that the requests for confidential treatment in the present case must be examined.
The requests for confidential treatment not challenged by the interveners.
– General assessment of the requests for confidentiality
36 First of all, in the light of the case-law referred to in paragraphs 26 and 27 above and subject to the points set out in paragraphs 39 to 50 below, the requests for confidentiality put forward by the applicant and the Commission must be granted inasmuch as the interveners have not put forward any objection thereto.
37 That being so, it should be borne in mind that, according to settled case-law, when the same information is reproduced a number of times in the pleadings and a party neglects to request that each of the passages in which it appears be treated confidentially, so that that information will in any event be disclosed to the interveners, the request concerning it can only be refused, given that it is pointless (see orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 49 and the case-law cited; orders 10 May 2012, BVGD v Commission, T-339/08, not published, EU:T:2012:232, paragraph 39; and 28 January 2014, Novartis Europharm v Commission, T-67/13, not published, EU:T:2014:75, paragraph 46).
38 In the present case, the written pleadings and documents attached thereto total over 2700 pages and the requests for confidential treatment concern a considerable amount of the information contained therein. In such circumstances, it is not possible to examine systematically whether each set of information covered by those requests is, in reality, disclosed in parts of the procedural documents other than those identified by the main parties. Consequently, it must be understood that the confidential treatment accorded to certain information will have effect only in so far as it does not turn out subsequently that information treated in that way is repeated in passages of the pleadings disclosed to the interveners (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 53; 2 March 2010, Telefónica and Others v Commission, T-336/07, not published, paragraph 41; and 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 59).
– The request for confidential treatment of the reply put forward by the applicant
39 In the applicant’s request for confidential treatment of the reply, it is worth noting, even irrespective of the interveners’ partial challenge to the requests for confidential treatment, the lack of concordance between the paragraphs of the reply, in which information is redacted in the non-confidential version of the document produced by the applicant and the numbering used by it in the part of the annex to its request for confidential treatment devoted to the reply and setting out the grounds underlying the request. The reply contains only 167 paragraphs, yet the part of the annex to the applicant’s request for confidential treatment refers inter alia to hypothetical paragraphs 168, 170, 172, 174, 175, 178, 180 to 187 and 195.
40 Accordingly, in so far as the applicant’s request for confidentiality relates to the information redacted in paragraphs 99, 108, 123, 127 to 130, 134 to 136 and 155 and in footnote No 127 of the reply, it is vitiated by such a degree of incoherence that the Court is not in a position to identify, from among the grounds put forward by the applicant in support of that part of the request, which ones relate to each of those paragraphs. That incoherence has also prevented the interveners from properly being able to challenge that part of the request for confidentiality directed at them.
41 It follows that, inasmuch as it relates to the redacted information in the paragraphs of the reply referred to in paragraph 40 above, the applicant’s request for confidentiality clearly disregards the requirements of accurate identification and provision of reasons as set out in paragraph 221 of the Practice Rules for the Implementation of the Rules of Procedure and must therefore be refused (see, by analogy, orders of 10 May 2012, BVGD v Commission, T-339/08, not published, EU:T:2012:232, paragraph 32, and 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 49).
42 By contrast, the reasons of the request for confidential treatment concerning Annex C.1 to the reply are clear from the applicant’s request for confidentiality. Therefore, in the absence of a challenge from the interveners to the requests for confidential treatment, the request for confidential treatment of the information redacted in Annex C.1 must be granted.
– The requests for confidential treatment of the application, the statement in defence and the reply put forward by the Commission
43 The next point to be examined is the fact that a considerable amount of the information contained in the application and the annexes thereto and in the reply, confidential treatment for which was requested by the Commission, was disclosed to the interveners when the common non-confidential version of those documents drawn up jointly by the Commission and the applicant was provided to them following the adoption of the order of 24 June 2016, referred to in paragraph 6 above.
44 Although the Court, in accordance with the case-law referred to in paragraph 26 above, must in principle grant a request for confidential treatment where it is not challenged, that does not prevent it from refusing even an unchallenged request when it relates to information that has clearly lost its confidential nature because it has been disclosed to the interveners (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 46). According to settled case-law, information of which the interveners are already or may already become aware legitimately cannot be said to be confidential (see orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 57 and the case-law cited; order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 60).
45 However, an intervener cannot be said to have been made legitimately aware of information when the party to the dispute who originally requested confidential treatment of the information has made known in a timely manner that the communication thereof to that party was the result of a clerical error on its part and has requested that that party be ordered to return it to the Court (see, to that effect, order of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 58).
46 In the present case the possibility cannot be ruled out that disclosure to the interveners of information contained in the application, the reply and the annexes thereto, confidential treatment for which was requested by the Commission, is based on a clerical error at the time the common non-confidential version of those documents, drawn up by the main parties, was lodged. However, even if that were the case, it must be borne in mind that, unlike the situation that gave rise to the order of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, the Commission did not make that known to the Court in a timely manner and request the Court to order the interveners to return the common non-confidential version to it.
47 It follows that the requests for confidential treatment of the application, the reply and the annexes to those documents put forward by the Commission must be refused in so far as they relate to the following information, as redacted in the non-confidential version of those documents produced by the Commission but disclosed in the common non-confidential version of the file:
– in the application, the information redacted in paragraphs 20, 21, 41, 42, 48, 66, 77, 85, 102 to 106, 108, 110 and 128, footnotes Nos 2, 44, 47, 48, 50, 73, 89, 117 and 128, and in the list of annexes;
– in the statement of objections contained in Annex A.1 to the application, the information redacted in paragraphs 17, 18, 114, 115, 732, 745 (fourth paragraph), 752, 1398, 1402 and 1415, and in footnotes Nos 1019, 1020, 1085, 1091, 1098, 1189, 1213, 1688, 1735, 1740, 1743 and 1745;
– in the applicant’s response to the statement of objections contained in Annex A.2, the information redacted in paragraphs 10, 58, 138, 180, 230, 233, 236 to 241, 243, 244, 255, 257, 272 (including the preceding title), 275, 278, 312, 333, 359, 361, 362, 390, 392, 396, 422, 442, 443, 446 to 448, 451, 454, 455, 466, 468, 470 to 474, 478, 497, 514, 515, 519, 545, 547 to 549, 552, 553, 555, 559, 825, 1163, 1164, 1344, 1346, 1438, 1439, 1501, 1559, 1560, 1637, 1672, 1676, 1677, 1680, 1681, 1683 to 1687 and 1760, footnotes Nos 77, 79, 94, 156, 171, 219, 237, 314, 316, 322, 335, 337, 343, 344, 348, 349, 351, 444, 446, 448, 458, 721, 861, 862, 997, 1056, 1075, 1129, 1189, 1217 and 1301, and in parts V.A.1 and V.B.4.2 of the table of contents;
– in the applicant’s response to the letter of facts contained in Annex A.4, the information redacted in paragraphs 22, 41, 43, 48, 63, 122, 123, 126 to 130, 132, 137, 138, 144, 145, 150, 153, 155, 164, 179, 236, 355, 356, 449 (title of table No 4), 714, 744 to 747, 753 to 768, 816, 826, 898, 899, 901 and 903 to 905, footnotes Nos 83, 87, 89 to 92, 94, 122, 581, 585, 603, 626, 655, 667 and 679, in the titles preceding paragraphs 740, 744, 753, 759 and 897, the information redacted in the list of annexes (Annexes II and XI to XIV), and in parts 6.II, 6.II.B and 7.IV.C of the table of contents;
– in the expert’s report contained in Annex A.7, the information redacted on pages 1 (under the title), 16 (under table No 2) and 23 (alongside the term ‘signed’);
– in the expert’s report contained in Annex A.9, the information redacted on page 32;
– in the expert’s report contained in Annex A.11, the information redacted on page 1;
– in report on margin squeeze calculation contained in Annex A.19, the information redacted in the header of pages 1 to 19;
– in the expert’s report on the calculation of costs for the purposes of margin squeeze analysis contained in Annex A.20, the information redacted on the cover page;
– in the reply, the information redacted in paragraphs 2, 15, 16, 90 and 110, and in footnotes Nos 65, 79 and 127.
48 On the other hand, the Commission’s request for confidential treatment of paragraphs 127 and 155 of the reply must be granted, since the information to which it relates remained redacted in the common non-confidential version of that document and the interveners have not objected to their receiving confidential treatment.
49 Moreover, the Commission included in its request for confidential treatment of the application and the statement in defence, and the annexes thereto, submitted on 30 October 2015, paragraphs and footnotes in which no information was redacted, both in the non-confidential version of those annexes initially drawn up by the Commission and in the common non-confidential version of the file. By virtue of the principles referred to in paragraph 44 above, those requests for confidential treatment must be refused, at least as regards the following information:
– in the statement of objections contained in Annex A.1 to the application, paragraph 388 and footnote No 836;
– in the applicant’s response to the statement of objections contained in Annex A.2, in paragraphs 567, 1069, 1088, 1097, 1104 and 1117, and in footnotes Nos 140, 369, 835, 932 and 933;
– in the applicant’s response to the letter of facts contained in Annex A.4, paragraph 664;
– in the contested decision contained in Annex A.5, paragraphs 154 to 156, 254, 405, 550, 657, 659, 1025, 1030, 1032, 1117, 1304, 1335 and 1436, and footnotes Nos 683, 686 and 1931;
– in the annex to the third issues paper of 30 August 2010 contained in Annex B.2 to the statement in defence, paragraph 29 and footnotes Nos 20 and 22.
50 Lastly, it is apparent from a comparison of the request for confidential treatment of the statement in defence and the annexes thereto put forward by the Commission and the common non-confidential version of those documents, drawn up for the purposes of the present proceedings, that information in title 4.4.2.6 and paragraph 180 of the statement in defence and in footnote No 26 of the annex to the third issues paper of 30 August 2010 contained in Annex B.2 has been redacted, without those titles, paragraph and footnote being referred to in the request for confidential treatment. Given the Commission’s failure to provide reasons, there are no grounds for granting confidential treatment of the redacted information in title 4.4.2.6 and in paragraph 180 of the statement in defence or in footnote No 26 of Annex B.2 (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 49).
The requests for confidential treatment challenged by the interveners
– Assessment of the confidential nature of the documents and information
51 It should be borne in mind, firstly, that according to settled case-law, information which has been secret or confidential but is five or more years old 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 (see orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 60 and the case-law cited; orders of 28 January 2014, Novartis Europharm v Commission, T-67/13, not published, EU:T:2014:75, paragraph 53; and 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 64).
52 Accordingly, given the absence of any specific reasons from the main party seeking confidential treatment showing that disclosure of the passages at issue to the intervener, notwithstanding their historical nature, would be liable to harm the applicant’s commercial interests, confidential treatment cannot be accorded to those passages (see orders of 28 January 2014, Novartis Europharm v Commission, T-67/13, not published, EU:T:2014:75, paragraph 53 and the case-law cited; orders of 29 September 2015, Telecom Castilla-La Mancha v Commission, T-38/15, not published, EU:T:2015:779, paragraph 22; and 14 September 2016, Prysmian and Prysmian cavi e sistemi v Commission, T‑475/14, not published, EU:T:2016:580, paragraph 35).
53 In the present case the following must be deemed historic:
– the information relating to the proportion of broadband DSL [digital subscriber line] services in Slovakia in 2010, redacted in paragraph 87 of the application;
– the information relating to the margin squeeze calculation for the period between 2005 and 2010, redacted in tables Nos 1 and 2 in paragraphs 139 and 140 of the application;
– the information relating to a potential unbundled local loop (ULL) price that ought to have been applied by the applicant during the period between 2005 and 2010 in order to avoid a margin squeeze, redacted in table No 3 in paragraph 153 of the application;
– the information relating to the applicant’s turnover during the period between 2005 and 2010, redacted in paragraphs 207, 209 and 210 of the application;
– the information relating to a potential price applied by the applicant for ULL access by other operators, and potential retail price increases for broadband services, redacted in footnote No 82 of the application;
– the information relating to coverage of the applicant’s Public Switch Telephone Network (PSTN) in 2009 and 2010, and coverage of the applicant’s copper broadband infrastructure in 2010, redacted in paragraph 99 of the statement of objections contained in Annex A.1;
– the information relating to the applicant’s commercial strategy, including its pricing policy, dating from the period between 2004 and 2009, redacted in paragraphs 203 to 205, 233, 240, 242 to 244, 251, 258, 297 to 299, 301 to 303, 307, 315, 748, 753, 787, 788, 799, 844, 1224 to 1226, 1244 to 1249, 1266, 1282, 1290, 1359 and 1538, and in footnotes Nos 477, 1222, 1223, 1225, 1226 and 1722 of the statement of objections;
– the information relating to the applicant’s reference unbundling offer (RUO), dating from 2003 to 2007, redacted in paragraphs 230 to 232, 234, 236 to 239, 356, 796, 846, and in footnotes Nos 365, 383, 384, 1235 and 1237 of the statement of objections;
– the information included in a presentation made by the applicant in March 2003, redacted in paragraph 257 of the statement of objections;
– the information, dating from March 2009, relating to financial estimates for the applicant’s roll-out of fibre-to-the-home (FTTH) services, redacted in paragraph 698 of the statement of objections;
– the information relating to the applicant’s market share for retail DSL services between 2004 and 2010, redacted in paragraph 737 of the statement of objections (including table No 47);
– the information concerning the wholesale xDSL offer resulting from the applicant’s internal communications, dating from the period between 2005 and 2008, redacted in paragraph 1264 of the statement of objections;
– the information concerning the applicant’s position on the xDSL market in Slovakia between 2008 and 2010, redacted in paragraph 1280 of the statement of objections;
– the information relating to the applicant’s market share for higher-end services in 2010, redacted in paragraph 1281 of the statement of objections;
– the information relating to the applicant’s coverage of the DSL, xDSL and FTTx networks, and the likely advantages it would have derived from same, redacted in paragraphs 739, 759 and 1360 of the statement of objections;
– the information relating to the applicant’s customer base for DSL services, dating from 2008 and 2009, redacted in paragraph 751 of the statement of objections;
– the information relating to the applicant’s terms for collocation, dating from 2002 and 2003, redacted in paragraphs 884, 885 and 896 of the statement of objections;
– the information relating to the applicant’s wholesale strategy, as reflected in some of its internal documents dating from 2005, redacted in paragraphs 697 to 702 of the applicant’s response to la the statement of objections contained in Annex A.2;
– the information relating to the applicant’s reference unbundling offer, dating from the period between 2004 and 2009, redacted in paragraphs 703 to 705, 709 to 712, paragraph 713, second sentence, paragraphs 714 and 715 of the applicant’s response to the statement of objections;
– the information relating to the applicant’s commercial strategy, including its pricing policy, resulting from some of its internal documents dating from 2005 to 2009, redacted in paragraphs 780 to 782, 1503 to 1505, 1507 to 1513, and 1589 of the applicant’s response to the statement of objections;
– the information relating to the applicant’s network coverage during the period between 2004 and 2010, redacted in the table and the graph reproduced in paragraph (3)(c) and (d) of the letter of facts contained in Annex A.3;
– the information relating to the applicant’s carving up of Slovak territory into Main Distribution Frame areas (‘MDF areas’) and a comparison of costs and revenues per subscriber in four areas in Slovakia, dating from 2005 and 2010, redacted in paragraphs 129 and 132 of the applicant’s response to the letter of facts contained in Annex A.4 to the application, and in footnote No 76 thereof;
– the information relating to the profitability of unbundled access to the local loop for the period between 2005 and 2010, redacted in paragraphs 130 and 131 of the applicant’s response to the letter of facts;
– the figures relating to the applicant’s network coverage during the period between 2005 and 2010, redacted in paragraphs 56 (table No 5), 57 (graph No 6), 58, 61, 62, 65, 66, 69 (including the information redacted in table No 7), in paragraph 75(a) (including the information redacted in graph No 8), in paragraphs 645 to 648 and in footnote No 108 of the contested decision contained in Annex A.5;
– the figures relating to the applicant’s refusals to provide retail broadband services for 2008, redacted in paragraph 70 and in footnote No 136 of the contested decision;
– the figures relating to the average monthly volume of mobile data used by subscribers of four operators in Slovakia between 2006 and 2010, redacted in paragraph 123 of the contested decision (table No 9);
– the figures relating to the number of main distribution frames (MDFs) the applicant had in Slovakia in June 2003 and in April 2010, redacted in paragraph 215 of the contested decision;
– the information, including citations, taken from internal documents of the applicant and email exchanges, dating from the period between 2002 and 2008 and relating to facts and commercial and strategic reflections from that same period, redacted in paragraphs 240, 241, 590, 591, 596 and 658 (except for the name of the third-party company referred to in the last sentence of that paragraph) of the contested decision, and in footnotes Nos 382 to 384 of that document;
– the figures relating to the applicant’s market on the market for retail broadband services during the period between 2005 and 2010, redacted in tables Nos 11 and 12 under paragraphs 310 and 339 respectively, and in table No 42 under paragraph 1111 of the contested decision;
– the number of the largest cities in Slovakia where the applicant was the leading operator in 2010, redacted in paragraph 341 of the contested decision;
– the applicant’s estimates, expressed in figures, of the potential for acquiring new DSL customers in the period between 2008 and 2010, taken from a study conducted in 2007, and the citation from an internal document from 2007, redacted in paragraphs 559 to 561 of the contested decision;
– the figures on the number of lines the applicant has reserved for itself, redacted in paragraphs 594 and 604 of the contested decision;
– the figures relating to costs and expenditure associated with collocation, taken from documents dating from 2007 or 2008, redacted in paragraphs 691, 711 and 716 of the contested decision;
– the figures taken from an internal survey of the applicant from 2003 on the number of MDF sites to which a separate collocation had to be added and the construction costs borne by it in connection with collocation, redacted in paragraphs 696 and 698 of the contested decision;
– the figures relating to the number of qualification requests and the results of tests conducted by the applicant in the period between 1 January and 25 October 2010, redacted in table No 17 under paragraph 769 and in paragraph 770 of the contested decision;
– the figures for the period between 2005 and 2010 for the average monthly fees for unbundling from the local loop, the volume of the applicant’s retail broadband services and the ratio of non-naked/naked and weighted average wholesale charges, redacted in tables Nos 22 to 24 under paragraphs 931 to 933 of the contested decision;
– the figures relating to long run average incremental costs (LRAIC) of the applicant’s network for the period between 2005 and 2010, redacted in table No 25 under paragraph 946 of the contested decision, and ISP (Internet service provider) recurrent costs of an equally-efficient competitor for the same period, redacted in table No 26 under paragraph 968 of the contested decision;
– the figures for the period between 2005 and 2010 for set-up fees for unbundled access to the local loop, redacted in table No 28 under paragraph 981 of the contested decision, subscriber acquisitions costs for access to the local loop, redacted in tables Nos 29 and 30 under paragraphs 990 and 991 of the contested decision, the applicant’s revenues from DSL services, redacted in table No 31 under paragraph 992 of the contested decision, the margin squeeze calculation, redacted in tables Nos 32 to 35 under paragraphs 993 to 996, in tables Nos 36 and 37 under paragraphs 1005 and 1006, and in table No 38 under paragraph 1010 of the contested decision, and the information relating to the calculation of that squeeze using a multi-period method, redacted in tables Nos 39 and 40 under paragraphs 1013 and 1014 of the contested decision;
– the figures relating to the profitability of the applicant’s ‘S1912’ service for the period between 2007 and 2010, redacted in table No 41 under paragraph 1019 of the contested decision;
– The quotations from emails dated from 2007, redacted in footnotes Nos 1462 and 1463 of the contested decision;
– the figures relating to the applicant’s share of the xDSL retail market segment in the period between 2005 and 2010, redacted in paragraph 1116 of the contested decision, including table No 44 under that paragraph;
– the figures relating to the applicant’s sales on the relevant markets during the period between 2005 and 2010, redacted in paragraph 1491 of the contested decision;
– the applicant’s turnover in the ULL and fixed retail broadband market in 2010, redacted in paragraph 1495 of the contested decision;
– the number of the applicant’s active and non-active lines for which there was a physical circuit between the customer’s premises and the MDF and which were capable of broadband usage, as provided by the applicant in 2009, redacted in footnote No 905 of the contested decision;
– the information relating to fixed and mobile broadband market shares in Slovakia, in December 2009, redacted in graphs Nos 5 and 6 on pages 10 and 11 of the expert’s report contained in Annex A.7, and relating to variations in market shares between 2005 and 2009, redacted in table No 1 on page 12 of that report;
– the information relating to the availability of fibre networks in certain Slovak cities in 2009, redacted in the first paragraph of page 17 of that same expert’s report;
– the information relating to the percentages of customers having switched operator in 2008 and 2009, redacted in the second and third paragraphs of page 17 of that same expert’s report;
– the information relating to market share distribution between different operators for broadband services access in Slovakia in 2009, redacted in graph No 2 under paragraph 8 of the annex to the third issues paper of 30 August 2010 contained in Annex B.2, and in table No 1 under paragraph 10 of that document.
54 In all of the information identified in paragraph 53 above, the applicant or the Commission merely affirm, in essence, that the information is either business secrets or confidential business information disclosure of which would jeopardise the applicant’s commercial interests. They fail to show, however, how the disclosure of that information, which is dated, is still liable to harm those commercial interests (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 66).
55 It follows that, in the absence of any specific reasons establishing that disclosure of the information in question to the interveners, even though it is dated, would be liable to jeopardise the commercial interests of the applicant or a third party, there are no grounds for granting confidential treatment to that information (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 67 and the case-law cited).
56 Secondly, information that concerns the interveners and is necessarily known to them, information of which the interveners are already or may already become aware legitimately and information that is quite clear or may be inferred from information of which they are aware must be held not to be confidential (orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 55 and the case-law cited; orders of 8 May 2012, Spira v Commission, T-108/07, not published, EU:T:2012:226, paragraph 54; and 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 60).
57 In the present case, firstly, this is true of the information redacted in paragraph 14 of the application, concerning the lack of interest from other operators in access to unbundling from the local loop, since that information is already, in essence, apparent from the passages that are not redacted in that paragraph.
58 Secondly, the request for confidential treatment of the figures redacted in paragraph 812 of the contested decision contained in Annex A.5 must be refused, as that information is apparent from unredacted information in the same paragraph, and also from paragraph 809 of the decision and multiplication of the various pieces of information in question (order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 61).
59 Thirdly, the request for confidential treatment as regards Slovanet of the information redacted in paragraph 421 the contested decision contained in Annex A.5 must be refused, as that information relates to the applicant’s assessment of Slovanet’s experiences and plans (order of 15 September 2016, Deutsche Telekom v Commission, T-827/14, not published, EU:T:2016:545, paragraph 62). On the other hand, the request for confidential treatment of that paragraph as regards Orange Slovensko must be granted, given that the latter has not expressed any objections thereto (see paragraph 36 below).
60 Fourthly, regarding the challenges to the requests for confidential treatment referred to in paragraph 20 above, the requests as regards Orange Slovensko of the following information must be refused, since it relates to that intervener, who may accordingly be presumed to be aware of them:
– the information redacted in paragraphs 593, 594 and 1355 of the statement of objections contained in Annex A.1;
– the information redacted in the section entitled ‘Orange’ in paragraph 508 of the applicant’s response to the statement of objections contained in Annex A.2, and the information redacted in paragraph 1201 of that document (except for the last sentence, which concerns another operator);
– the information redacted in paragraphs 355, 356, 803, 804, 818, 822, 826 and 968, sixth sentence, of the applicant’s response to the letter of facts contained in Annex A.4;
– the information redacted in paragraph 60, fourth sentence, of the statement in defence;
– the information redacted in paragraphs 20, 21 and 25, and in footnote No 8, first sentence, of the annex to the third issues paper of 30 August 2010 contained in Annex B.2.
61 As to the figures redacted in paragraphs 758 and 1272 of the statement of objections contained in Annex A.1, although it does not concern solely Orange Slovensko’s fibre network coverage but also the applicant’s fibre network, that information is from 2009 or 2010. Since the applicant has failed to demonstrate that the disclosure of that information, dated as it is, is still liable to jeopardise its commercial interests or those of a third party (see paragraph 52 above), the request for confidential treatment of that information as regards Orange Slovensko must be refused.
62 The same holds true for information redacted in the graph reproduced in paragraph 821 of the applicant’s response to the letter of facts contained in Annex A.4 which, although relating to both Orange Slovensko and the applicant, dates from the period between 2005 and 2010. As the applicant has not put forward any specific argument showing that disclosure of that information is liable to jeopardise its commercial interests or those of a third party, the request for confidential treatment of that information as regards Orange Slovensko must be refused.
63 The sentence redacted in paragraph 815 of the applicant’s response to the letter of facts contains information about MDF coverage in Slovakia that concerns Orange Slovensko specifically. It is clear, however, from the statement contained therein, originating from the applicant, that the applicant itself supposes that the intervener is aware of that information. Accordingly, the request for confidential treatment as regards Orange Slovensko of the last sentence of paragraph 815 of the applicant’s response to the letter of facts must also be refused.
64 Fifthly, as regards the challenges to the requests for confidential treatment referred to in paragraph 21 above, the requests as regards Slovanet of the following information must be refused, as it concerns Slovanet, who may therefore be presumed to be aware of them:
– the information redacted in paragraphs 385, 387, 389, 390, 456, 457 and 745 (first paragraph) of the statement of objections contained in Annex A.1, and in footnotes Nos 589 and 594 of that document;
– the information redacted in the section entitled ‘Slovanet’ in paragraph 508 of the applicant’s response to the statement of objections contained in Annex A.2 to the application, and in paragraphs 1101, 1107 and 1261 to 1264 of that document;
– the information redacted in paragraphs 838, 841 and paragraph 968, seventh sentence, of the applicant’s response to the letter of facts contained in Annex A.4.
65 As to the figure redacted in paragraph 1272 of the statement of objections contained in Annex A.1 to the application, although it does not concern Slovanet, who may therefore not be presumed to be aware of it, it is dated and, given that the applicant has not demonstrated that disclosure of it is still liable to jeopardise its commercial interests, the request for confidential treatment of that information must be refused as regards Slovanet (see also paragraph 61 above).
– Balancing of the interests concerned
66 In accordance with the case-law cited in paragraphs 32 and 33, a weighing-up remains to be done of the competing interests regarding the information which, as evidenced by the conclusions drawn in the 28th indent of paragraph 53 and the second indent of paragraph 60 above, are confidential in nature.
67 In that regard, the disclosure of that information, being, on the one hand, the name of the third-party company redacted in the last sentence of paragraph 658 of the statement of objections contained in Annex A.1 and, on the other, the commercial positioning of a third-party company redacted in the last sentence of paragraph 1201 of the applicant’s response to the statement of objections contained in Annex A.2, does not seem, in the light of all the information from the file that has been disclosed to the interveners, indispensable to enable it to understand the main parties’ arguments and participate properly in the proceedings.
68 Confidential treatment must accordingly be granted for that information.
69 Lastly, in the light of the considerations set out inter alia in paragraphs 38, 41 and 47 to 50 above, it must be pointed out to the interveners that they have been made privy to the information contained in the non-confidential case-file solely for the purpose of exercising their respective procedural rights (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T-383/03, EU:T:2005:57, paragraph 47 and the case-law cited, and 10 May 2012, Spira v Commission, T‑354/08, not published, EU:T:2012:231, paragraph 61).
On those grounds,
THE PRESIDENT
OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The requests for confidential treatment put forward by the European Commission are refused in so far as they are directed at the following information, as redacted in the non-confidential version of the documents concerned produced by the Commission, as that information was disclosed in the common non-confidential version of those documents:
– in the application, the information redacted in paragraphs 20, 21, 41, 42, 48, 66, 77, 85, 102 to 106, 108, 110 and 128, in footnotes Nos 2, 44, 47, 48, 50, 73, 89, 117 and 128, and in the list of annexes;
– inthe statement of objections contained in Annex A.1, the information redacted in paragraphs 17, 18, 114, 115, 388, 732, 745 (fourth paragraph), 752, 1398, 1402 and 1415, and in footnotes Nos 836, 1019, 1020, 1085, 1091, 1098, 1189, 1213, 1688, 1735, 1740, 1743 and 1745;
– in the applicant’s response to the statement of objections contained in Annex A.2, the information redacted in paragraphs 10, 58, 138, 180, 230, 233, 236 to 241, 243, 244, 255, 257, 272 (including the preceding title), 275, 278, 312, 333, 359, 361, 362, 390, 392, 396, 422, 442, 443, 446 to 448, 451, 454, 455, 466, 468, 470 to 474, 478, 497, 514, 515, 519, 545, 547 to 549, 552, 553, 555, 559, 567, 825, 1069, 1088, 1097, 1104, 1117, 1163, 1164, 1344, 1346, 1438, 1439, 1501, 1559, 1560, 1637, 1672, 1676, 1677, 1680, 1681, 1683 to 1687 and 1760, in footnotes Nos 77, 79, 94, 140, 156, 171, 219, 237, 314, 316, 322, 335, 337, 343, 344, 348, 349, 351, 369, 444, 446, 448, 458, 721, 835, 861, 862, 932, 933, 997, 1056, 1075, 1129, 1189, 1217 and 1301, and in parts V.A.1 and V.B.4.2 of the table of contents;
– in the applicant’s response to the letter of facts contained in Annex A.4, the information redacted in paragraphs 22, 41, 43, 48, 63, 122, 123, 126 to 130, 132, 137, 138, 144, 145, 150, 153, 155, 164, 179, 236, 355, 356, 449 (title of table No 4), 664, 714, 744 to 747, 753 to 768, 816, 826, 898, 899, 901 and 903 to 905, in footnotes Nos 83, 87, 89 to 92, 94, 122, 581, 585, 603, 626, 655, 667 and 679, in the titles preceding paragraphs 740, 744, 753, 759, 897, the information redacted in the list of annexes (Annexes II and XI to XIV), and in parts 6.II, 6.II.B and 7.IV.C of the table of contents;
– in the contested decision contained in Annex A.5, paragraphs 154 to 156, 254, 405, 550, 657, 659, 1025, 1030, 1032, 1117, 1304, 1335 and 1436, and footnotes Nos 683, 686 and 1931;
– in the expert’s report contained in Annex A.7, the information redacted on pages 1 (under the title), 16 (under table No 2) and 23 (alongside the term ‘signed’);
– in the expert’s report contained in A.9, the information redacted on page 32;
– in the expert’s report contained in Annex A.11, the information redacted on page 1;
– in the report on margin squeeze calculation contained in Annex A.19, the information redacted in the header of pages 1 to 19;
– in the expert’s report on calculation of costs for the purposes of margin squeeze analysis contained in Annex A.20, the information redacted on the cover page;
– in the annex to the third issues paper of 30 August 2010 contained in Annex B.2, paragraph 29 and footnotes Nos 20 and 22;
– in the reply, the information redacted in paragraphs 2, 15, 16, 90 and 110, and in footnotes Nos 65, 79 and 127.
2. The requests for confidential treatment put forward by Slovak Telekom a.s. and the Commission are refused in so far as they relate to the following information:
– in the application, the information redacted in paragraphs 14, 87, 139 (table No 1), 140 (table No 2), 153 (table No 3), 207, 209 and 210, and in footnote No 82;
– in the statement of objections contained in Annex A.1, the information redacted in paragraphs 99, 203 to 205, 230 to 234, 236 to 240, 242 to 244, 251, 257, 258, 297 to 299, 301 to 303, 307, 315, 356, 698, 737, 739, 748, 751, 753, 759, 787, 788, 796, 799, 844, 846, 884, 885, 896, 1224 to 1226, 1244 to 1249, 1264, 1266, 1272, 1280 to 1282, 1290, 1359, 1360 and 1538, and in footnotes Nos 365, 383, 384, 477, 1222, 1223, 1225, 1226, 1235, 1237 and 1722;
– in the applicant’s response to the statement of objections contained in Annex A.2, the information redacted in paragraphs 697 to 705, 709 to 712, paragraph 713, second sentence, paragraphs 714, 715, 780 to 782, 1503 to 1505, 1507 to 1513 and 1589;
– in the letter of facts contained in Annex A.3, the information redacted in the table and the graph reproduced in paragraph 3(c) and (d);
– in the applicant’s response to the letter of facts contained in Annex A.4, the information redacted in paragraphs 129 to 132 and in footnote No 76;
– in the contested decision, contained in Annex A.5, the information redacted in paragraphs 56 (table No 5), 57 (graph No 6), 58, 61, 62, 65, 66, 69 (including the information redacted in table No 7), 70, in paragraph 75(a) (including the information redacted in graph No 8), in paragraphs 123 (table No 9), 215, 240, 241, 310 (table No 11), 339 (table No 12), 341, 559 to 561, 590, 591, 594, 596, 604, 645 to 648, 658 (except for the name of the third-party company referred to in the last sentence), 691, 696, 698, 711, 716, 769 (table No 17), 770, 812, 931 (table No 22), 932 (table No 23), 933 (table No 24), 946 (table No 25), 968 (table No 26), 981 (table No 28), 990 (table No 29), 991 (table No 30), 992 (table No 31), 993 (table No 32), 994 (table No 33), 995 (table No 34), 996 (table No 35), 1005 (table No 36), 1006 (table No 37), 1010 (table No 38), 1013 (table No 39), 1014 (table No 40), 1019 (table No 41), 1111 (table No 42), 1116, 1491 and 1495, and in footnotes Nos 108, 136, 382 to 384, 905, 1462 and 1463;
– in the expert’s report contained in Annex A.7, the information redacted in graphs Nos 5 and 6 on pages 10 and 11, in table No 1 on page 12, and on page 17;
– in the statement in defence, the information redacted in title 4.4.2.6 and in paragraph 180;
– in the annex to the third issues paper of 30 August 2010 contained in Annex B.2, the information redacted in graph No 2 under paragraph 8 and in table No 1 under paragraph 10, and in footnote No 26;
– in the reply, the information redacted in paragraphs 99, 108, 123, 127 to 130 (except for the information in paragraph 127, for which confidential treatment was specifically requested by the Commission), 134 to 136 and 155 (except for the information for which confidential treatment was specifically requested by the Commission), and in footnote No 127.
3. The requests for confidential treatment with respect to Orange Slovensko a.s. are refused in so far as they relate to the following information:
– in the statement of objections contained in Annex A.1, the information redacted in paragraphs 593, 594, 758 and 1355;
– in the applicant’s response to the statement of objections, contained in Annex A.2, the information redacted in the section entitled ‘Orange’ in paragraph 508, and that redacted in paragraph 1201 of that document (excluding the last sentence);
– in the applicant’s response to the letter of facts contained in Annex A.4, the information redacted in paragraphs 355, 356, 803, 804, paragraph 815, last sentence, paragraphs 818, 821, 822, 826 and paragraph 968, sixth sentence;
– in the statement in defence, the information redacted in paragraph 60, fourth sentence;
– in the annex to the third issues paper of 30 August 2010 contained in Annex B.2, the information redacted in paragraphs 20, 21 and 25, and in footnote No 8, first sentence;
4. The requests for confidential treatment as regards Slovanet a.s. are refused in so far as they relate to the following information:
– in the statement of objections contained in Annex A.1, the information redacted in paragraphs 385, 387, 389, 390, 456, 457 and 745 (first paragraph), and in footnotes Nos 589 and 594;
– in the applicant’s response to the statement of objections contained in Annex A.2, the information redacted in the section entitled ‘Slovanet’ in paragraph 508 and in paragraphs 1101, 1107 and 1261 to 1264;
– in the applicant’s response to the letter of facts contained in Annex A.4, the information redacted in paragraphs 838, 841 and paragraph 968, seventh sentence;
– in the contested decision contained in Annex A.5, the information redacted in paragraph 421.
5. The requests for confidential treatment are granted as to the remainder.
6. Certified copies of the non-confidential versions of the documents referred to in paragraphs 1 to 5 of this operative part shall be provided to the General Court by Slovak Telekom or by the Commission by the time limit indicated by the Registry and shall be served by the Registry on Orange Slovensko and Slovanet.
7. Costs are reserved.
Luxembourg, 29 March 2017.
Table of contents
Procedure
The requests for confidential treatment
The requests for confidentiality
Subject matter of the interveners’ challenge to the requests for confidential treatment
Appraisal of the requests for confidentiality
Considerations of principle
The requests for confidential treatment not challenged by the interveners.
– General assessment of the requests for confidentiality
– The request for confidential treatment of the reply put forward by the applicant
– The requests for confidential treatment of the application, the statement in defence and the reply put forward by the Commission
The requests for confidential treatment challenged by the interveners
– Assessment of the confidential nature of the documents and information
– Balancing of the interests concerned