Provisional text
ORDER OF THE PRESIDENTOF THE SECOND CHAMBER OF THE GENERAL COURT
27 September 2017 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑607/15,
Yieh United Steel Corp. (Yusco), established in Kaohsiung City (Taiwan), represented by D. Luff, lawyer,
applicant,
v
European Commission, represented by J.-F. Brakeland and A. Demeneix, acting as Agents,
defendant,
supported by
Eurofer, Association Européenne de l’Acier, ASBL, established in Luxembourg, represented by J. MacFayden Killick, Barrister, and G. F. Forwood and C. Van Haute, lawyers,
intervener,
APPLICATION for annulment of Articles 1 and 2 of Commission Implementing Regulation (EU) No 2015/1429 of 26 August 2015 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People's Republic of China and Taiwan (OJ 2015 L 224, p. 10), in so far as those provisions relate to the applicant,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 27 October 2015, the applicant, Yieh United Steel Corp. (Yusco), brought an action seeking annulment of Articles 1 and 2 of Commission Implementing Regulation (EU) 2015/1429 of 26 August 2015 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10) (‘the contested regulation’), in so far as those provisions relate to the applicant.
2 By document lodged at the Court Registry on 18 March 2016, Eurofer, Association Européenne de l’Acier, ASBL, (‘Eurofer’) applied for leave to intervene in support of the form of order sought by the Commission.
3 By document lodged at the Court Registry on 18 April 2016, the applicant requested that certain information in the application, the defence and the reply be treated as confidential vis-à-vis Eurofer, if the latter were to be granted leave to intervene. The applicant attached a non-confidential version of those documents to that application.
4 By document lodged at the Court Registry on 19 May 2016, the Commission requested that certain information in the rejoinder be treated as confidential vis-à-vis Eurofer, if the latter were to be granted leave to intervene and submitted, to that end, a non-confidential version of that document.
5 By order of 20 July 2016, Eurofer was granted leave to intervene in support of the form of order sought by the Commission. Given that, in accordance with Article 114(2) of the Rules of Procedure of the General Court, the applicant and the Commission had applied for the confidential treatment of certain information contained in the abovementioned documents, that order provisionally restricted the disclosure of those documents to Eurofer to the aforementioned non-confidential versions thereof, pending the submission of any observations by Eurofer on the application for confidential treatment.
6 By document lodged at the Court Registry on 22 August 2016, the applicant requested that, in addition to the information already redacted in the non-confidential version of the rejoinder lodged by the Commission, further information in that document, relating to the identity of a domestic customer, be treated as confidential.
7 To that end, the applicant attached a consolidated non-confidential version of the rejoinder to its application.
8 By document lodged at the Court Registry on 12 September 2016, Eurofer opposed, in part, the application for confidential treatment of the application, the defence and the reply.
9 By document lodged at the Court Registry on 9 January 2017, the applicant requested that certain information in its observations on Eurofer’s statement in intervention, lodged on 12 December 2016, be treated as confidential vis-à-vis Eurofer. To that end, it attached a non-confidential version of those observations to its application.
10 By document lodged at the Court Registry on 1 April 2017, Eurofer opposed, in part, the application for confidential treatment of the applicant’s observations on its statement in intervention.
The applications for confidential treatment
Considerations of principle
11 Article 144(7) of the Rules of Procedure states:
‘If 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.’
12 That provision lays down the principle that interveners are to receive a copy of every procedural document served on the parties and it is only by way of derogation from that principle that certain secret or confidential documents or information may be excluded from that communication (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 11 and the case-law cited).
13 In that connection, the party who makes an application for confidentiality has the task of specifying the documents or information covered and of duly stating the reasons for which they are confidential (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12 and the case-law cited).
14 Where a party submits an application under Article 144(2) of the Rules of Procedure, the President may confine his examination to the documents and information the confidentiality of which is disputed. Therefore, an application for confidential treatment may be allowed in so far as it relates to items the confidentiality of which has not been disputed by the intervener (order of the President of the First Chamber of the General Court of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 10).
15 In so far as an application made under Article 144(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether each of the documents and pieces of information whose confidentiality is disputed, and in relation to which an application for confidential treatment has been made, are secret or confidential (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 15 and the case-law cited).
16 It is with regard to the secret or confidential nature of each of those documents and pieces of information covered that the requirement for the applicant to state reasons in the application for confidential treatment must be assessed. 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 the applicant must furnish (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 16 and the case-law cited).
17 Therefore, the secret or confidential nature 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 (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 17 and the case-law cited).
18 The concept of business secrets covers, inter alia, information of a commercial, competition-related, financial or accounting nature, where such information is not normally available to third parties outside the undertaking and where, because of its age, it cannot be regarded as historic. Information may in fact lose its confidential character where it is possible for the general public or specialists to have access to it. In general, information that is five or more years old is to be regarded as historic, unless there is some special interest at stake justifying the protection of its confidentiality (order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 13 and the case-law cited).
19 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 (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 18 and the case-law cited).
20 Thus, where confidential treatment is requested in the interests of the applicant, the President weighs in the balance, for each document or item of information, the applicant’s legitimate concern to prevent serious harm to its interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 19 and the case-law cited).
21 In any event, the applicant must, in view of the adversarial and public nature of 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 the latter (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 20 and the case-law cited).
22 In the present case, the request for confidential treatment must be examined in the light of those principles.
The scope of the applications for confidential treatment
23 It must be stated at the outset that the intervener contests the applicant’s application for confidential treatment as regards some of the information in the application, the defence, the reply and the documents annexed to those pleadings and the applicant’s observations on the statement in intervention. On the other hand, the intervener raises no objection to the applications for confidential treatment brought by the applicant and the Commission as regards the information redacted in the rejoinder and Annex D.1 thereto.
24 In the light of the principles referred to in paragraph 14 above, it is necessary to grant, at the outset, the applications for confidentiality in so far as they relate to information redacted in the rejoinder and Annex D.1 thereto, with the result that the Court may limit its assessment of the applications for confidentiality to the redaction of the information which the intervener disputes, contained in the application, the defence, the reply and the applicant’s observations on the statement in intervention, or the documents annexed to those pleadings.
Information in the application and the annexes thereto
25 The applicant requests the confidential treatment of the following information in the application, on the basis that it is secret:
– information on the identity of a domestic customer (page 6, paragraph 11.2; page 7, paragraph 13.2; page 9, paragraph 15; page 10, paragraph 17; page 11, paragraph 18.3; page 21, paragraphs 47, 48 and 49; page 21, paragraph 50; page 21, paragraph 51; page 22, section title; page 23, paragraph 54; and page 24, paragraph 58);
– information on the applicant’s production costs (page 17, paragraph 38.3); and
– information on the volume of the applicant’s sales to a domestic customer (page 21, paragraph 47).
26 The intervener specifies that it does not dispute the application for confidentiality as regards the various items of information set out in paragraph 25 above, apart from the information on the volume of the applicant’s sales to a domestic customer, referred to in paragraph 47 of the application, the amount of which should be replaced by a range capable of indicating the range of values of the exact figures.
27 Therefore, in accordance with the case-law referred to in paragraph 14 above, it is necessary to grant, at the outset, the application for confidentiality in so far as it relates to the information set out in paragraph 25 above, except for the information on the applicant’s volume of sales to one of its customers, referred to in paragraph 47 of the application.
28 The applicant further requests the redaction of the information in the sections of the annexes to the application listed below, which, the applicant claims, are business secrets:
– Annex A.2: page 42, point C‑3.4 (percentage of hot-rolled coils produced by a rolling mill); page 42, point C‑3.5 (production yield information); page 66, point F‑1.12 (account code concerning sales rebate and sales returns); page 76, point F‑3.3 (purchase cost of raw materials); page 81, point H-1.1 (account code concerning sales rebates); pages 81 and 82, point H-1.2 (account codes concerning various selling costs); page 83, point H-1.4 (account code concerning packaging costs); page 84, point H-1.6 (account code concerning warranty costs); page 84, point H-1.7 (account code concerning commission); page 85, point H-1.9 (account code concerning bank charges); page 88, point H-2.3 (sales threshold for granting sales rebates); page 89, point H-2.3 (account code concerning sales rebates); page 90, point H-2.5 (account code concerning inland freight); page 91, point H-2.7 (payment terms for sales); and page 91, point H-2.8 (account code concerning warranty costs);
– Annex A.4: page 135, point 2.1.1 (cost of production information); page 135, point 2.1.2 (grade code of raw material); page 136, point 2.1.3 (product control number (PCN)); pages 136 and 137, point 2.1.4 (financial situation); page 138, point 2.2.1.1 (production and sales volumes); page 138, point 2.2.1.2 (sales volumes and identities of domestic customers); pages 139 and 140, point 2.3.1.2 (percentage of SG&A expenses (selling, general and administrative expenses) in terms of total invoices); page 141, point (d) (average unit post-importation costs); and page 142, point (g) (profit and loss margin);
– Annex A.5: pages 147 to 149, point I.A (product category according to cost, yield loss quantity, input and output quantities, and unit conversion cost); page 152, point I.B (manufacturing costs); pages 156 to 158, point II.B (production and sales volumes and percentage of domestic sales excluded); and page 158, Footnote No 26 (domestic sales volumes);
– Annex A.6.1: page 166, point 2.1.2 (product control numbers (PCNs) and production costs); page 166, point 2.2.1 (sales volume and identity of a domestic customer); page 167, point 1 (post-importation costs); and page 167, confidentiality note (unit sales price range);
– Annex A.7, page 190 (production costs) and pages 191 and 192 (identity of a domestic customer);
– Annex A.8, pages 193 to 210 (manufacturing costs);
– Annex A.9, page 211 (manufacturing costs); and
– Annex A.10, pages 212 to 221 (manufacturing costs).
29 In accordance with the case-law cited in paragraph 14 above, it is necessary to accept, at the outset, the application for confidential treatment in so far as it relates to the information contained in the sections of those annexes indicated below, the confidentiality of which the intervener does not dispute and which is listed at the end of its request of 12 September 2016, referred to above:
– Annex A.2: page 66, point F‑1.12 (account code concerning sales rebate and sales returns); page 81, point H-1.1 (account code concerning sales rebates); pages 81 and 82, points H-1.2 (account codes concerning various selling costs); page 83, point H-1.4 (account code concerning packaging costs); page 84, point H-1.6 (account code concerning warranty costs); page 84, point H-1.7 (account code concerning commission); page 85, point H-1.9 (account code concerning bank charges); page 90, point H-2.5 (account code concerning inland freight); and page 91, point H-2.8 (account code concerning warranty costs); and
– Annex A.7, pages 191 and 192 (identity of a domestic customer).
30 As it is clear from that list that the intervener does not dispute the redaction of the account codes and the identity of the applicant’s customers, the application for confidential treatment must be granted also as regards the redacted account code in Annex A.2, page 89, point H-2.3, of the non-confidential version and the redacted identity of the domestic customers in Annex A.4, page 138, point 2.2.1.2, and Annex A.6.1, page 166, point 2.2.1, of the non-confidential version, even though that information was not expressly referred to in the abovementioned list.
Information in the defence and the annexes thereto
31 With regard to the defence, the applicant requests the confidential treatment of the following passages:
– page 3, paragraph 7 (percentage of the applicant’s turnover and production represented by the product);
– page 5, paragraph 18 (the applicant’s profit and loss ratios);
– page 6, paragraph 19 (percentage of domestic sales);
– page 6, paragraph 21 (amount of the scrap deduction);
– page 7, paragraph 24 (the applicant’s production costs);
– page 10, paragraph 34 (input and output quantities);
– page 12, paragraph 43 (production, sales and import volumes in Taiwan based on data collected from the respondents);
– page 13, paragraph 45 (the volume of the applicant’s domestic sales);
– page 14, paragraph 48 (the identity of one of the applicant’s domestic customers and the volume of sales to a particular domestic customer);
– page 18, paragraph 66 (profit and loss ratio of the applicant’s domestic sales).
32 As stated in paragraph 30 above, since it is clear from the list of information which the intervener does not dispute is confidential in its statement in intervention lodged on 12 December 2016, that the intervener does not dispute the redaction of the identity of the applicant’s customers, the application for confidential treatment must also be granted at the outset as regards the redacted identity of a domestic customer in paragraph 48 on page 14 of the non-confidential version of the defence, even though that information was not expressly referred to in that list. The same applies with regard to the information relating to the percentage of the turnover and production represented by the product concerned in paragraph 7 of page 3 of the non-confidential version of the defence, which is not disputed, even though it is not referred to on the abovementioned list.
33 Furthermore, the applicant argues that the following sections of the annexes to the defence contain business secrets which must be redacted:
– Annex B.1, pages 2 to 14 (the applicant’s profit and loss information);
– Annex B.2, pages 16 to 27 (the applicant’s manufacturing costs);
– Annex B.3, page 29 (the applicant’s production costs); and
– Annex B.4, pages 31 to 39 (the applicant’s production costs).
34 Since the intervener disputes the redaction of all the information listed in paragraph 33 above, the merits of the application for confidential treatment of that information will be assessed in the examination of the objections to the applications for confidential treatment.
Information in the reply and the annexes thereto
35 As regards the reply, the applicant requests the confidential treatment of the following passages:
– page 4, point 11.a (percentage of purchased hot-rolled coils in terms of overall consumption);
– page 9, point 12.a (identity of a domestic customer);
– page 10, Footnote No 25 (profit and loss ratios); and
– pages 15 to 16, 19 and 21, points 28.a to 28.d, 29, 41, 44 and 46 (identity of a domestic customer).
36 The applicant argues, moreover, that the following passages in the annexes to the reply contain business secrets which must be redacted:
– Annex C.1, pages 24 to 27 (production costs);
– Annex C.2, page 28 (manufacturing costs);
– Annex C.3, pages 29 to 33 (sales information concerning scrap);
– Annex C.5, pages 36 and 37 (sales volumes); and
– Annex C.7: page 45 (identity of a domestic customer) and page 46 (identity of a domestic customer and invoice number).
37 In accordance with the case-law cited in paragraph 14 above, it is necessary to grant, at the outset, the application for confidential treatment in so far as it relates to information which the intervener does not dispute is confidential in the document it lodged on 12 September 2016, referred to above, which is the case as regards the information relating to the identity of a domestic customer, which was redacted in point 12.a on page 9, and in points 28.a to 28.d, 29, 41, 44 and 46 of the reply, as well as on page 45 Annex C.7 thereto.
38 Moreover, as noted in paragraph 30 above, as it is clear from the information which the intervener does not dispute is confidential in the document it lodged on 12 September 2016 that it does not dispute the redaction of the identity of the applicant’s customers, the application for confidential treatment must be granted also as regards the redacted identity of a domestic customer in page 46, in the non-confidential version of Annex C.7, even though that information was not expressly referred to in that list. The same applies with regard to the information relating to the production costs redacted in pages 24 to 27, in the non-confidential version of Annex C.1, which is not disputed, even though it is not on the abovementioned list.
Information in the applicant’s observations on the statement in intervention and the annexes thereto
39 Lastly, the applicant requests that certain information contained in its observations on the statement in intervention remain confidential, namely:
– the identity of a domestic customer, redacted in page 3, paragraphs 7 and 8, of the non-confidential version of those observations and in the heading of the second submission on page 8;
– the information in Annex E.2 which is by nature confidential since it concerns the applicant’s production costs; and
– the table in Annex E.3, which contains sensitive information concerning pricing and volumes of raw materials used for the production of the product concerned, as well as the yield loss calculations contained in the paragraph below that table.
40 In accordance with the case-law cited in paragraph 14 above, it is necessary to grant, at the outset, the application for confidential treatment in so far as it relates to information concerning which the intervener does not dispute is confidential, which is the case as regards the information relating to the identity of a domestic customer which was redacted in paragraphs 7 and 8 on page 3 of the non-confidential version of the observations in question and the heading of the second submission on page 8 of those observations, as well as the yield loss calculation in the paragraph below the table in Annex E.3, which had been replaced by a range of values in the non-confidential version submitted by the applicant.
The merits of the objections to the applications for confidential treatment
41 In the first place, the intervener submits that the redaction of certain information prevents it from exercising its procedural rights.
42 First, the intervener observes that, in its first plea, the applicant argues that the Commission was wrong to refuse to accept deductions for the cost of recycled scrap from the cost of production of cold-rolled flat stainless steel products covered by the contested regulation (‘the product concerned’), which had the consequence of artificially inflating the normal value of the product concerned in breach of Article 2(3) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22; ‘the Basic Anti-Dumping Regulation’). In that context, the applicant submitted detailed arguments in response to the Commission’s complaint that the applicant failed to calculate correctly the ‘yield loss’ of the raw materials, namely hot-rolled coils, with the result that the Commission refused to accept the deduction of the cost of recycled scrap from the calculation of the production costs of the product concerned or, according to that institution, to accept a second deduction for material losses incurred during the production process. In support of its position, the applicant relies on various documents in Annexes A.8, A.9 and A.10 to the application. In order to counter the applicant’s argument, the Commission refers to Annex A.4 to the application and Annexes B.1, B.2 and B.3 to the defence. The intervener submits that, as those various annexes have been almost entirely redacted, it is prevented from commenting on them in the context of the argument relating to the taking into account of the ‘yield loss’ in the calculation of the production costs of the product concerned.
43 In that regard, the intervener refers to the information relating to:
– the ‘cost of production information’ redacted in Annex A.4 (page 135);
– the ‘cost of manufacturing’ redacted in Annexes A.8 (pages 193 to 210), A.9 (page 211) and A.10 (pages 212 to 221);
– the ‘applicant’s profit and loss information’ redacted in Annex B.1 (pages 2 to 14);
– the ‘cost of manufacturing’ redacted in Annex B.2 (pages 16 to 27) ; and
– the ‘cost of production information’ redacted in Annex B.3 (page 29).
44 Secondly, the intervener notes that there is one set of further documents from which the key information has been entirely deleted, thereby preventing it from responding to the applicant’s argument that its accounting treatment of yield losses is accurate and reasonably reflects the costs associated with the production of the product concerned. According to the intervener, in order for it to benchmark the claimed yield losses and the accounting treatment thereof against its knowledge concerning accounting for yield losses during the production of the product concerned, it would need access to the data on percentage yield loss, or at least a meaningful range thereof, in Annex A.5, points I.A (pages 147 to 149) and I.B (page 152).
45 Thirdly, the intervener observes that the Commission noted, in paragraph 78 of its defence, that the information on production costs provided for each product control number (‘PCN’) fluctuated over the course of the investigation and provided a summary table in that respect. By claiming confidential treatment for the entire content of the table in Annex B.4 (pages 31 to 39), the applicant has prevented the intervener from providing any meaningful comment.
46 Fourthly, the intervener disputes, in the context of the second plea, concerning whether the domestic sales of the product concerned were properly accounted for, the confidentiality claimed in respect of the information on production and sales volumes in the table reproduced in Annex A.4, point 2.2.1.1 (page 138), which illustrates the Commission’s approach at the stage of the provisional regulation.
47 The intervener claims that if it does not have access to the information referred to in paragraphs 43 to 46 above, it will find it impossible to comment meaningfully on the issues which are central to the case, which relate to the calculation of the normal value of the product concerned. In the alternative, the applicant should have replaced that information with appropriate ranges that provide an indication of the range of values of the figures concerned in order for Eurofer to be able to submit meaningful comments on the information provided and the arguments raised by the applicant.
48 Therefore, although the intervener does not dispute the confidential nature of the information redacted in Annexes A.4, A.5, A.8, A.9, A.10, B.1, B.2, B.3 and B.4, referred to in paragraphs 43 to 46 above, it nonetheless takes the view that access to that information or, at least to a range of values, is necessary to enable it to exercise its procedural rights.
49 The information in question relates to the calculation of the production costs of the product concerned, the methods for taking account of yield loss and the determination of the domestic volumes, which are central to the issues raised in the present case, which relates to the correct calculation of the normal value of the product concerned. In support of their opposing points of view, the applicant and the Commission refer to the figures covered by the application for confidential treatment, which it is essential for the intervener to be aware of, at the very least in the form of a range of values, in order for it to understand the arguments of the parties and to provide meaningful comment.
50 Accordingly, a weighing up of the competing interests leads to the conclusion that access to the information covered in the documents at issue, the confidential nature of which is conceded, appears necessary for the exercise of the intervener’s procedural rights. The applicant is therefore requested, in accordance with the submissions made by the intervener in the alternative, to replace the actual values with relevant ranges which deviate by no more than 10% from the actual figures.
51 Consequently, the application for the confidential treatment of the various items of information listed in paragraphs 43 to 46 above is granted only on condition that the applicant indicates, in the form of the ranges which deviate by no more than 10% from the actual figures, the redacted figures referred to in paragraphs 43 to 46 above (see, to that effect and by analogy, orders of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraphs 51, 52, 54, 55, and 92, and of 13 April 2015, PT Pelita Agung Agrindustri v Council, T‑121/14, not published, EU:T:2015:324, paragraph 33).
52 In the second place, the intervener claims that the application for confidential treatment of the PCNs in the Commission’s provisional and final disclosure documents, namely in Annex A.4, page 136, point 2.1.3 and Annex A.6.1, page 166, point 2.1.2, should be rejected. PCNs cannot be regarded as confidential as they are merely harmonised codes devised by the Commission and used by producers to provide sales and cost information.
53 On that point, it is sufficient to note that, since the information relating to the PCNs may, in conjunction with other information, be confidential in nature (see, to that effect, order of 11 January 2017, Shanxi Taigang Stainless Steel v Commission, T‑675/15, not published, EU:T:2017:11, paragraph 24), it is for the intervener to explain how the information relating to the PCNs is necessary in the present case for the exercise of its procedural rights, which it has not done, with the result that the application for the confidentiality of those PCNs must be granted.
54 In the third place, the intervener submits that various redactions made by the applicant go beyond its claims as set out in its application and must, for that reason alone, be rejected as excessive.
55 The redactions which should be rejected for that reason are as follows:
– first, the redaction of the raw material code in Annex A.2, page 76, point F‑3.3, when the application is justified on the basis of the secret nature of the information relating to the purchase cost of raw materials;
– secondly, the redaction, in Annex A.4, page 135, point 2.1.1, of the quantities produced and the representativeness of used grades in terms of production volume, when the application is justified on the basis of the secret nature of information on production costs;
– thirdly, the redaction in Annex B.1, pages 2 to 14, of the description of profit and loss categories and of entire tables, without disclosing their headings, when the application is justified on the basis of the secret nature of information on the applicant’s profits and losses;
– fourthly, the redaction, in Annex B.2, pages 16 to 27, of entire tables, without disclosing their headings, when the application is justified on the basis of the applicant’s manufacturing costs; and
– fifthly, the redaction of voucher numbers and voucher dates, material codes, purchase items, names of suppliers, (un)related status of suppliers, purchased quantities and the unit of measurement in Annex C.1, pages 24 to 27, when the application is justified on the basis of the secret nature of production costs.
56 First, it should be stated that, in so far as the challenge covers the information redacted in Annex B.1, pages 2 to 14 and Annex B.2, pages 16 to 27, the application for confidential treatment has been granted in paragraph 51 above, provided that the applicant indicates the redacted figures, in the form of a range of values which deviate by no more than 10% from the actual figures, it being specified that the related headings and descriptive information in the tables in question must be disclosed.
57 Second, it is sufficient to note that the intervener does not dispute that the information redacted in Annexes A.2, A.4 and C.1 is confidential, but simply submits that the redactions go beyond the justification put forward by the applicant in support of its application, without explaining how that information is necessary for the exercise of its procedural rights. Consequently, it is necessary to grant the application for confidential treatment with regard to the information referred to in paragraph 55 above, which is redacted in Annexes A.2, A.4 and C.1.
58 In the fourth place, the intervener contends that many items of redacted information should be replaced by appropriate ranges. In its view, the full deletion of the information in many cases goes beyond that which is strictly necessary. Replacing the figures in question by a range of values, rather than redacting them completely, would allow the applicant’s rights, as well as those of the intervener, to be safeguarded.
59 This is the case as regards the redacted information relating to:
– the volume of the applicant’s sales to a domestic customer (application, paragraph 47, page 21);
– the percentage of hot-rolled coils produced by a rolling mill (Annex A.2, point C‑3.4, page 42);
– the applicant’s production yield information (Annex A.2, point C‑3.5, page 42);
– the purchase cost of raw materials (Annex A.2, point F‑3.3, page 76);
– the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88);
– the payment terms for sales (Annex A.2, point H-2.7, page 91);
– cost of production information (Annex A.4, point 2.1.1, page 135);
– the financial situation (Annex A.4, point 2.1.4, pages 136 and 137);
– production and sales volumes (Annex A.4, point 2.2.1.1, page 138);
– sales volumes (Annex A.4, point 2.2.1.2, page 138);
– the percentage of SG&A expenses in terms of total invoices (Annex A.4, point 2.3.1.2, pages 139 to 140) ;
– the average unit post-importation cost (Annex A.4, point (d), page 141);
– the profit and loss margin (Annex A.4, point (g), page 142);
– the product category according to cost, yield loss quantity, input and output quantities and the unit conversion cost (Annex A.5, point I.A, pages 147 to 149);
– manufacturing costs (Annex A.5, point I.B, page 152);
– production and sales volumes and the percentage of domestic sales excluded (Annex A.5, point II.B, pages 156 to 158);
– domestic sales volumes (Annex A.5, Footnote No 26, page 158);
– production costs (Annex A.6.1, point 2.1.2, page 166);
– sales volume (Annex A.6.1, point 2.2.1, page 166);
– post-importation costs (Annex A.6.1, point 1, page 167);
– production costs (Annex A.7, page 190);
– manufacturing costs (Annex A.8, pages 193 to 210, Annex A.9, page 211, and Annex A.10, page 212 to 221);
– the applicant’s profit and loss ratio (defence, paragraph 18, page 5);
– the percentage of domestic sales (defence, paragraph 19, page 6);
– the amount of the scrap deduction (defence, paragraph 21, page 6);
– the applicant’s production costs (defence, paragraph 24, page 7);
– input and output quantities (defence, paragraph 34, page 10);
– the production, sales and import volumes in Taiwan based on data collected from the respondents (defence, paragraph 43, page 12);
– the volume of the applicant’s domestic sales (defence, paragraph 45, page 13);
– the volume of sales to a particular domestic customer (defence, paragraph 48, page 14);
– the profit and loss ratio of the applicant’s domestic sales (defence, paragraph 66, page 18);
– the applicant’s profit and loss information (Annex B.1, pages 2 to 14);
– the applicant’s manufacturing costs (Annex B.1, pages 16 to 27);
– the applicant’s production costs (Annex B.3, page 29, and Annex B.4, pages 31 to 39);
– the percentage of purchased hot-rolled coils in terms of overall consumption (reply, point 11.a, page 4);
– the profit and loss ratios (reply, Footnote No 25, page 10);
– production costs (Annex C.1, pages 24 to 27);
– sales information concerning scrap (Annex C.3, pages 29 to 33);
– sales volumes (Annex C.5, pages 36 and 37);
– sales information (Annex C.7, page 46); and
– the unit sales price ranges in the Commission’s confidentiality note relating to the undercutting and injury calculations in the Commission’s final disclosure document (Annex A.6.1, page 167).
60 As is clear from paragraphs 43 to 51 above, the application for confidential treatment has now been granted with regard to the information mentioned in paragraph 59 above, in so far as it relates to:
– production costs (Annex A.4, point 2.1.1, page 135);
– production and sales volumes (Annex A.4, point 2.2.1.1, page 138);
– the product category according to cost, yield loss quantity, input and output quantities and the unit conversion cost (Annex A.5, point I.A, pages 147 to 149);
– manufacturing costs (Annex A.5, point I.B, page 152);
– the applicant’s profit and loss information (Annex B.1, pages 2 to 14);
– manufacturing costs (Annex A.8, pages 193 to 210, Annex A.9, page 211, Annex A.10, pages 212 to 221, and Annex B.2, pages 16 to 27); and
– the applicant’s production costs (Annex B.3, page 29, and Annex B.4, pages 31 to 39).
61 Consequently, what remains to be examined, at this stage, is whether the objections to the application for confidential treatment are well founded, in so far as they concern the redacted information referred to in paragraph 59 above, which relates to:
– the volume of the applicant’s sales to a domestic customer (application, paragraph 47, page 21);
– the percentage of hot-rolled coils produced by a rolling mill (Annex A.2, point C‑3.4, page 42);
– the applicant’s production yield information (Annex A.2, point C‑3.5, page 42);
– the purchase cost of raw materials (Annex A.2, point F‑3.3, page 76);
– the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88);
– the payment terms for sales (Annex A.2, point H-2.7, page 91);
– financial situation (Annex A.4, point 2.1.4, pages 136 and 137);
– sales volumes (Annex A.4, point 2.2.1.2, page 138);
– the percentage of SG&A expenses in terms of total invoices (Annex A.4, point 2.3.1.2, pages 139 and 140);
– the average unit post-importation cost (Annex A.4, point (d), page 141);
– the profit and loss margin (Annex A.4, point (g), page 142);
– production and sales volumes and the percentage of domestic sales excluded (Annex A.5, point II.B, pages 156 to 158);
– the volume of domestic sales (Annex A.5, Footnote No 26, page 158);
– production costs (Annex A.6.1, point 2.1.2, page 166);
– sales volume (Annex A.6.1, point 2.2.1, page 166);
– post-importation costs (Annex A.6.1, point 1, page 167);
– production costs (Annex A.7, page 190);
– the applicant’s profit and loss ratio (defence, paragraph 18, page 5);
– the percentage of domestic sales (defence, paragraph 19, page 6);
– the amount of the scrap deduction (defence, paragraph 21, page 6);
– the applicant’s production costs (defence, paragraph 24, page 7);
– input and output quantities (defence, paragraph 34, page 10);
– the production, sales and import volumes in Taiwan based on data collected from the respondents (defence, paragraph 43, page 12);
– the volume of the applicant’s domestic sales (defence, paragraph 45, page 13);
– the volume of sales to a particular domestic customer (defence, paragraph 48, page 14);
– the profit and loss ratio of the applicant’s domestic sales (defence, paragraph 66, page 18);
– the percentage of purchased hot-rolled coils in terms of overall consumption (reply, point 11.a, page 4);
– profit and loss ratios (reply, Footnote No 25, page 10);
– production costs (Annex C.1, pages 24 to 27);
– sales information concerning scrap (Annex C.3, pages 29 to 33);
– sales volumes (Annex C.5, pages 36 and 37);
– sales information (Annex C.7, page 46); and
– the unit sales price ranges in the Commission’s confidentiality note relating to the undercutting and injury calculations in the Commission’s final disclosure document (Annex A.6.1, page 167).
62 In that regard, the intervener does not dispute that the information in question is confidential, but submits that the redactions should be replaced by ranges that will give an indication of the span of figures concerned in order to safeguard its procedural rights.
63 For the same reasons as those given in paragraph 49 above, the weighing up of the competing interests leads to the conclusion that, apart from the information relating to the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88) and the payment terms for sales (Annex A.2, point H-2.7, page 91), the information referred to in the documents in question appears necessary for the exercise the intervener’s procedural rights, and the applicant is requested to replace, in accordance with the intervener’s submissions, the actual figures with appropriate ranges which deviate by no more than 10% from those figures.
64 The information relating to the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88) and to the payment terms for sales (Annex A.2, point H-2.7, page 91) is not directly connected to the issues raised in the present case, which relate to the correct calculation of the normal value of the product concerned, as stated in paragraph 49 above.
65 Consequently, the application for confidential treatment of the various items of information referred to in paragraph 61 above is granted and the applicant is requested to replace the figures in question with ranges which deviate by no more than 10% from the actual figures, apart from the figures relating to the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88) and the payment terms for sales (Annex A.2, point H-2.7, page 91), the redaction of which is justified.
66 Lastly, as regards the application for confidential treatment in relation to the observations submitted by the applicant on the statement in intervention, described in paragraph 39 above, the intervener submits that the complete redaction of the information relating to the production costs in the table reproduced in Annex E.2 (extract of Annex 2.105 of Exhibit 19 ‘COM Calculation Worksheet-2013YEAR-YUSCO-1120’ of the Commission's provisional disclosure document — table entitled ‘SLAB’) is, in any event, disproportionate, in particular since it appears that that information does not refer to China, but rather to Vietnam, and appears to cover a different period than that at issue in the present case. Accordingly, in order to be able to exercise its procedural rights effectively with regard to that information, the intervener should have access to the information in question or to the range of the figures concerned.
67 The same applies to the table in Annex E.3, which also does not even show the headings indicating the type of information contained in the various columns. The applicant must disclose the information contained in that table, or, at least, those headings and replace the figures with ranges giving an indication of the span of those figures.
68 The intervener does not dispute that the figures redacted in Annexes E.2 and E.3 are confidential, in that they contain information relating to the production costs of the product concerned and the price and the quantities of the raw materials used in the production of the product concerned, but submits that the information redacted should be disclosed or, at least, replaced by ranges that will give an indication of the span of the figures in question, in order to safeguard its procedural rights.
69 First, there is no reason why the headings indicating the type of information in the various columns in the table in Annex E.3 should be redacted, with the result that the application for confidentiality must be rejected in so far as it relates to those headings.
70 Second, for the same reasons as those set out in paragraph 49 above, the weighing up of competing interests leads to the conclusion that the figures redacted in Annexes E.2 and E.3 appear to be necessary for the exercise of the intervener’s procedural rights. Accordingly, the information redacted in Annexes E.2 and E.3 must be disclosed and the applicant is requested to indicate the figures in the form of a range which deviate by no more than 10% from the actual figures.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment is granted in so far as it concerns the information referred to in paragraphs 24, 27, 29, 30, 32, 37, 38, 40, 51, 53, 57, 65 and 70 of the present order, vis-à-vis Eurofer, Association Européenne de l’Acier, ASBL. The figures referred to in paragraphs 51, 65 and 70 of the present order shall be replaced by figures which deviate by no more than 10% from the actual figures.
2. The application for confidentiality is dismissed as to the remainder.
3. The Registrar shall set a date for Yieh United Steel Corp. (Yusco) to provide a non-confidential version of the application, the defence, the reply, the annexes thereto and the annexes to its observations on the statement in intervention, in accordance with paragraph 1 of the operative part of the present order.
4. The Registrar shall serve the non-confidential version of the application, the defence, the reply, the annexes thereto and the annexes to its observations on the statement in intervention filed by Yieh United Steel Corp. (Yusco), in accordance with paragraphs 1 and 2 of the operative part of the present order, on Eurofer, Association Européenne de l’Acier, ASBL, and shall set a date for the latter to submit any observations supplementing its statement in intervention lodged at the Court Registry on 10 October 2016.
5. The costs are reserved.
Luxembourg, 27 September 2017.