ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
27 March 2015 (*)
(Confidentiality — Disputed by an intervener)
In Case T‑584/13,
BASF Agro BV, established in Arnhem (Netherlands),
BASF SE, established in Ludwigshafen (Germany),
BASF Belgium Coordination Center, established in Antwerp (Belgium),
BASF Española, SL, established in Barcelona (Spain),
BASF Italia SpA, established in Cesano Maderno (Italy),
BASF Nederland BV, established in Arnhem,
BASF Slovensko spol. s. r. o., established in Bratislava (Slovakia), represented by J.-P. Montfort and M. Peristeraki, lawyers,
applicants,
supported by
European Seed Association (ESA), represented by P. de Jong, P. Vlaemminck and B. Van Vooren, lawyers,
European Crop Protection Association (ECPA), represented by D. Abrahams, Barrister, I. de Seze and E. Mullier, lawyers,
v
European Commission, represented by P. Ondrůšek and G. von Rintelen, acting as Agents,
defendant,
supported by
Deutscher Berufs- und Erwerbsimkerbund eV,
Österreichischer Erwerbsimkerbund,
Österreichischer Imkerbund (ÖIB), represented by A. Willand, lawyer,
interveners,
APPLICATION for annulment of Commission Implementing Regulation (EU) No 781/2013 of 14 August 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substance fipronil, and prohibiting the use and sale of seeds treated with plant protection products containing this active substance (OJ 2013 L 219, p. 22),
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and procedure
1 On 4 November 2013, BASF Agro BV and the other applicants brought an action for annulment of Commission Implementing Regulation (EU) No 781/2013 of 14 August 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substance fipronil, and prohibiting the use and sale of seeds treated with plant protection products containing this active substance (OJ 2013 L 219, p. 22).
2 By document lodged at the Court Registry on 17 February 2014, Deutscher Berufs- und Erwerbsimkerbund eV (DBEB), Österreichischer Erwerbsimkerbund (ÖEB) and Österreichischer Imkerbund (ÖIB) jointly 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 20 February 2014, the European Seed Association (ESA) applied for leave to intervene in support of the form of order sought by the applicants.
4 By document lodged at the Court Registry on 21 February 2014, the European Crop Protection Association (ECPA) applied for leave to intervene in support of the form of order sought by the applicants.
5 By letters lodged at the Court Registry on 27 March and 3 April 2014 (referred to hereinafter as ‘the application for confidential treatment), the applicants requested that, in accordance with Article 116(2) of the Rules of Procedure of the General Court, certain confidential data should not be included when copies of the initiating application and its annexes and the reply and its annexes were provided to the interveners, in the event that the interveners were granted leave to do so. The applicants produced, for the purposes of that disclosure, a non-confidential version of those procedural documents.
6 By orders of 9 October 2014, leave was granted to DBEB, ÖEB and ÖIB to intervene in support of the forms of order sought by the Commission, and to ESA and ECPA to intervene in support of the forms of order sought by the applicants. Further, a decision on whether the application for confidential treatment was well founded was reserved and the provision of the procedural documents was provisionally restricted to a non-confidential version, pending any observations on the application for confidential treatment.
7 By letter lodged at the Court Registry on 10 November 2014, DBEB, ÖEB and ÖIB stated that they objected to the applicants’ request for confidentiality.
The application for confidential treatment
8 Article 116(2) of the Rules of Procedure provides:
‘If the President allows the intervention, the intervener shall receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.’
9 That provision lays down the principle that interveners are to receive a copy of every document served on the parties and that it is only by way of derogation from that principle that certain secret or confidential documents or information may be withheld from disclosure (orders of 4 April 1990 in Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10; 22 February 2005 in Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 18; and 18 November 2008, Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 17).
Whether the application for confidential treatment is well founded
10 The application for confidential treatment submitted by the applicants concerns four categories of data.
11 First, there is information relating to the products and business of the applicants.
12 Second, there are documents and information relating to the positions maintained by the applicants in the procedure before the EFSA and the Commission.
13 Third, there are letters of support from third parties.
14 Fourth, there are four unpublished studies commissioned by the applicants and the references which are made to them.
15 In that regard, it should be borne in mind, first, that the party who makes an application for confidential treatment is required to specify the documents or information covered and to duly state the reasons why they are claimed to be confidential (see order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 31 and case-law cited). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restate those requirements in paragraph 76, according to which ‘[a]n application must accurately identify the particulars or passages to be excluded and briefly state the reasons for which each of those particulars or passages is regarded as secret or confidential’. The first subparagraph of Article 6(2) of the Instructions to the Registrar of the General Court (OJ 2007 L 232, p. 1) provides that an application for confidential treatment must be made in accordance with, inter alia, paragraph 76 of the Practice Directions to Parties (see order in Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 18).
16 Second, when a party makes an application under the second sentence of Article 116(2) of the Rules of Procedure, the President is to give a decision solely on the documents and information the confidentiality of which is disputed (order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 36). In so far as an application is not contested, there is no need to give a decision on it.
17 Third, where an application under the second sentence of Article 116(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether the documents and information whose confidentiality is disputed and in respect of which confidential treatment has been requested are secret or confidential (see to that effect, orders in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 38; of 11 June 2007 in Deutsche Post v Commission, T‑266/02, EU:T:2007:166, paragraph 21; and Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 19).
18 Where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are secret or confidential, the President is required to go on to assess and weigh up the competing interests with respect to each document and piece of information (the orders in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 42, and Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 20).
19 Last, it must be borne in mind that the parties and interveners in proceedings are in any event to use the procedural documents of which copies are sent to them solely for the purpose of exercising their respective procedural rights (judgment in Svenska Journalistfôrbundet v Council, T‑174/95, ECR, EU:T:1998:127, paragraph 137; order of the President of the First Chamber of the General Court of 5 August 2003 in Glaxo Wellcome v Commission, T‑168/01, not published in the ECR, paragraph 28, and order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 47).
The information relating to the products and businesses of the applicants
20 This information concerns the applicants’ rights to the active substance fipronil, the places where that substance is produced, the national authorisations relating to fipronil, the size of certain markets and the market shares held by the applicants.
21 The applicants claim, in that regard, that the information concerned is commercially sensitive and that some of it constitutes a business secret.
22 DBEB, ÖEB and ÖIB accept that purely commercial information and documents should be subject to confidential treatment but ask the President to examine the passages at issue.
23 In that regard, it is clear, first, that the categories of information referred to in paragraph 20 above are as a general rule inherently secret or confidential and that their disclosure is likely to affect the commercial interests of the applicants vis-à-vis their competitors.
24 Consequently, the application for confidential treatment must be granted in so far as it concerns paragraphs 3, 4, 7, 81 and 192 of the initiating application, footnote 2 thereof and the second sentence in footnote 6 thereof, and in so far as it concerns paragraphs 19, 37 and 83 of the reply and footnote 38 thereof.
25 Second, it must be observed that the information to be found in footnote 2 and in the first sentence of footnote 6 of the initiating application which concerns the history of the applicants’ rights to fipronil are accessible to the public on the ‘wikipedia’ website, and accordingly that information cannot be regarded as being confidential or even secret.
26 Consequently, the application for confidential treatment must be dismissed in so far as it concerns that information.
Documents and information relating to the positions maintained by the applicants in the procedure before EFSA and the Commission
27 The documents and information concerned relates to a meeting of the applicants with the Commission, letters and documents in which the applicants recorded their discussions with the Commission and comment on the positions of the EFSA and the Commission, and references to those documents.
28 The applicants claim that that material contains information which is commercially sensitive and that some of that information constitutes a business secret.
29 DBEB, ÖEB and ÖIB contend that the application by the applicants contains no explanations of the reasons why the correspondence between the applicants and the Commission on the assessment of risks should have to be considered to be confidential. Given that those documents may have an effect on the outcome of the proceedings, the interveners should have the opportunity to submit their observations on those documents.
30 In that regard, it is clear, first, that Annex A.2 to the initiating application reproduces a presentation made by the applicants on 17 June 2013, summarising their points of view and observations on the measures envisaged by the Commission, that Annex A.16 to the initiating application reproduces the applicants’ observations of 12 June 2013 on the EFSA conclusion on fipronil, published on 27 May 2013, and that Annex A.19 reproduces a letter from the applicants of 10 July 2013, addressed to the Commission, in which they express their disagreement with the proposed implementing regulation of May 2013.
31 It is true that those documents report the positions adopted by the applicants in the procedure before the Commission and that that procedure is not, as a general rule, public. Nonetheless, those positions are the same as those maintained by the applicants before the General Court, in order to challenge the legality of the contested act, as is clear from the section ‘Key concerns of BASF on EFSA conclusion — main points’ in Annex A.2, the section ‘Summary points’ in Annex A.16 and from Annex I to Annex A.19, on the one hand, and in particular from the wording of the first three pleas in law relied on by the applicants before the General Court, on the other.
32 In those circumstances, Annexes A.2, A.16 and A.19 to the initiating application cannot, in principle, be regarded as being confidential for the sole reason that they report positions adopted by the applicants during the procedure before EFSA and the Commission. It is however otherwise where the annexes concerned contain business secrets. Having regard to the considerations set out in paragraphs 20 and 23 above, that applies to pages 9 and 12 of Annex A.2 (pages 61 and 64 in the page numbering of the initiating application), which contain indications from which inferences can be made with respect to data falling within the scope of the applicants’ business secrets.
33 Consequently, the application for confidential treatment of Annexes A.2, A.16 and A.19 to the initiating application must be rejected except in so far as it concerns pages 9 and 12 of Annex A.2.
34 Second, the application for confidentiality made by the applicants concerns references, in footnotes, to Annexes A.2, A.16 and A.19 to the initiating application which contain no other information than the title of those annexes. Given that those annexes are in principle not confidential, nor are the references to them. Accordingly, the application for confidentiality concerning footnotes 5, 42, 45, 72, 139, 140, 141 and 147 of the initiating application must be dismissed.
35 Third, the applicants request the confidential treatment of two passages in the initiating application, relating to the content of a meeting with staff of the Commission which took place on 10 July 2013. Those passages indicate that, according to the applicants, the Commission was primarily concerned by the risks to bees arising from exposure to dust.
36 It is not apparent that that information is confidential or secret in the light of either the nature of such information or in the light of the very summary explanations provided by the applicants. In those circumstances, the application for confidential treatment concerning paragraphs 40 and 153 of the initiating application must be dismissed.
Letters of support from third parties
37 Annex A.26 contains a number of letters of support sent to the applicants by farmers and by an association of seed producers.
38 The applicants claim that those letters contain information which is commercially sensitive.
39 DBEB, ÖEB and ÖIB contend that the applicants have not provided reasons which enable them to determine whether confidential treatment is justified.
40 It must be observed, in that regard, that, when he examines the confidentiality of documents and information the confidentiality of which is disputed, the President cannot be bound by an agreement on confidentiality which the applicants may have entered into with a third party to the proceedings on the subject of documents or information concerning that third party to be found in the written pleadings or annexed to those pleadings (see, to that effect, the orders of 3 June 1997 in Gencor v Commission, T‑102/96, ECR, EU:T:1997:82, paragraphs 17 to 19, and Hynix Semiconductor v Council, EU:T:2005:57, paragraph 39). In this case, there is therefore no need to invite the applicants to demonstrate that they are not permitted, by the authors of the letters concerned, to disclose them to the interveners.
41 In this case, suffice it to find that the letters of support cannot be regarded as constituting documents which are inherently confidential or secret and that, in those circumstances, the general assertion by the applicants that Annex A.26, which consists of those letters, ‘contains commercially sensitive information’ is plainly insufficient to justify their confidential treatment.
42 Consequently, the application for confidential treatment concerning Annex A.26 to the initiating application must be dismissed.
The unpublished studies
43 Annexes C.4, C.5, C.6 and C.7 to the reply contain studies relating to the exposure of bees by guttation, submitted to EFSA during the procedure for the review of the conditions of approval of fipronil. Paragraph 29 of the initiating application contains a reference to those studies.
44 The applicants claim that those studies constitute information which is commercially sensitive since the studies contain proprietary information.
45 DBEB, ÖEB and ÖIB contend that, given that the applicants make use of the studies concerned in order to call into question the assessment of risks carried out by EFSA and the Commission, the studies are relevant to the outcome of the dispute. Consequently, the interveners should have access to them in order effectively to bring before the court their expertise in apiculture and their interests relating to the protection of bees.
46 In that regard, it must first be recalled that, that 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 (the order in Hynix Semiconductor v Council, EU:T:2005:57, paragraph 49 and case-law cited).
47 In this case, that point concerns the reference, in paragraph 29 of the initiating application, to the new studies on guttation which the applicants submitted to EFSA on 9 January 2013, and the reference, in footnote 29 of the initiating application, to paragraph 158 of the application, with regard to more information on guttation. The applicants state in paragraph 145 that they sent to EFSA in January 2013 six studies, providing details of the subject-matter of four of those studies. In paragraph 147 of the initiating application, the applicants maintain that those four studies all concern guttation. Yet the applicants have not requested confidential treatment with respect to paragraphs 145 and 147 of the application. Consequently, the application for confidential treatment relating to paragraph 29 and footnote 29 of the initiating application can only be refused.
48 Next, it must be observed that, even if the information contained in the unpublished studies commissioned by the applicants has to be categorised as secret or confidential, it is apparent from the weighing of the competing interests that those studies are required for the interveners to exercise their procedural rights.
49 That is because the applicants rely on those studies, first, to support the claim that EFSA did not examine them as it ought to have and, second, to call into question the merits of the assessment by EFSA of risks linked to guttation.
50 Those issues go to the heart of the dispute in these proceedings, on which the judgment to be delivered by the General Court may be decisive with respect to the assessment of whether the contested act is wholly or partly illegal and, consequently, to the outcome of the applicants’ action. In those circumstances, confidential treatment of the studies at issue would prevent the interveners from properly expressing their views on issues which are essential to the outcome of the dispute and would be likely to impede the exercise of their procedural rights.
51 Consequently, the application for confidential treatment of Annexes C.4 to C.7 to the reply must be dismissed.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment by BASF Agro BV and the other applicants, submitted by letters of 27 March and 3 April 2014, is granted in so far as it concerns:
– paragraphs 3, 4, 7, 81 and 192 of the initiating application, footnote 2 thereof and the second sentence in footnote 6 thereof;
– paragraphs 19, 37 and 83 of the reply and footnote 38 thereof;
– pages 9 and 12 of Annex A.2 to the application, reproduced in pages 61 and 64, in the page numbering of the application.
2. The application for confidential treatment is dismissed for the remainder.
3. A period of time will be prescribed for BASF Agro and the other applicants to produce a non-confidential version of the procedural documents referred to in point 1 of the operative part.
4. A non-confidential version of the procedural documents mentioned in point 1 of the operative part will be served on the interveners by the Registrar.
5. The costs are reserved.
Luxembourg, 27 March 2015.