ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE
8 October 2009 (*)
(Confidentiality)
In Case T‑314/06,
Whirlpool Europe Srl, established in Comerio (Italy), represented by M. Bronckers and F. Louis, lawyers,
applicant,
supported by
European Committee of Domestic Equipment Manufacturers (CECED), established in Brussels (Belgium), represented by Y. Desmedt and A. Verheyden, lawyers,
and by
Italian Republic, represented by G. Albenzio, lawyer,
interveners,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, and G. Berrisch, lawyer,
defendant,
supported by
Commission of the European Communities, represented by H. van Vliet and T. Scharf, acting as Agents,
and by
LG Electronics Inc., established in Seoul (South Korea), represented by L. Ruessmann and A. Willems, lawyers,
interveners,
APPLICATION for the annulment in part of Council Regulation (EC) No 1289/2006 of 25 August 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain side-by-side refrigerators originating in the Republic of Korea (OJ 2006 L 236, p. 11),
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Procedure
1 By application lodged at the Registry of the Court of First Instance on 17 November 2006, Whirlpool Europe (‘the applicant’) brought an action seeking annulment in part of Council Regulation (EC) No 1289/2006 of 25 August 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain side-by-side refrigerators (‘SxS refrigerators’) originating in the Republic of Korea (‘the contested regulation’). The applicant claims that the contested regulation should be annulled in so far as the definition of the product concerned does not include three‑door SxS refrigerators originating in the Republic of Korea.
2 By documents lodged at the Registry of the Court on 9 February 2007, the European Committee of Domestic Equipment Manufacturers (CECED), a non‑profit‑making international association governed by Belgian law and established in Brussels (Belgium), and Electrolux, a company governed by Swedish law and established in Stockholm (Sweden), applied to intervene in the present case in support of the form of order sought by the applicant, in accordance with Article 115 of the Rules of Procedure of the Court of First Instance.
3 By documents lodged at the Registry of the Court on 11 January and 14 February 2007 respectively, the Commission of the European Communities and LG Electronics (‘LG’) applied to intervene in the present case in support of the form of order sought by the Council of the European Union, in accordance with Article 115 of the Rules of Procedure.
4 Those applications to intervene were served on the parties, in accordance with Article 116(1) of the Rules of Procedure.
5 By order of 26 February 2007, the President of the Third Chamber of the Court of First Instance granted the Commission leave to intervene in support of the form of order sought by the Council.
6 In its observations which were lodged at the Registry of the Court on 14 March 2007, the Council raised objections in relation to Electrolux’s application to intervene.
7 By letter lodged at the Registry of the Court on 27 March 2007, the applicant did not raise any objections to the interventions of CECED, LG and Electrolux. However, in accordance with Article 116(2) of the Rules of Procedure, it requested that certain passages in the annexes to the application be treated as confidential vis-à-vis CECED, LG and Electrolux, claiming that those passages contain business secrets.
8 By order of 10 May 2007, the President of the Third Chamber of the Court of First Instance granted CECED leave to intervene in support of the form of order sought by the applicant and LG leave to intervene in support of that sought by the Council, and reserved his decision on the application for confidential treatment vis-à-vis the interveners.
9 By letter lodged at the Registry of the Court on 11 June 2007, LG objected to the application for confidential treatment.
10 By letter lodged at the Registry of the Court on 27 June 2007, the applicant informed the Court that it had failed to send the interveners Annex 13 to Annex A 13 to the application, in respect of which it had not applied for confidential treatment. It attached a copy of the documents in question to its letter and requested that they be served on the interveners.
11 By decision of 18 July 2007, the President of the Third Chamber added to the file the documents from Annex 13 to Annex A 13, which the applicant had mistakenly failed to attach to its application.
12 By letter lodged at the Registry of the Court on 28 June 2007, the Italian Republic applied to intervene in support of the form of order sought by the applicant. By order of 4 September 2007, the President of the Third Chamber of the Court of First Instance granted the Italian Republic leave to intervene in the case.
13 The composition of the chambers of the Court of First Instance having been modified, the Judge-Rapporteur was assigned to the Sixth Chamber, to which this case was therefore assigned.
14 By order of 10 January 2008, the President of the Sixth Chamber of the Court of First Instance rejected Electrolux’s application to intervene in support of the form of order sought by the applicant.
The application for confidential treatment
Subject-matter of the application
15 In the letter which it lodged at the Registry of the Court on 27 March 2007, the applicant requested that certain pages of Annexes A 6, A 9, A 13, A 15, A 19, A 25, A 31 and A 41 to the application be treated as confidential.
16 LG limited its objections to that request to pages 2040 and 2281 of Annex A 31 and Annex A 41 respectively. By contrast, CECED did not raise any objections to Whirlpool’s application for confidential treatment. The application for confidential treatment must therefore be granted in its entirety vis-à-vis CECED. In addition, since Electrolux’s application to intervene was rejected, there is no longer any need to rule on the application for confidential treatment vis-à-vis that company.
Arguments of the parties
17 First, the applicant seeks confidential treatment of page 2040 of Annex A 31 which, it claims, contains confidential information on consumer preferences in the French and United Kingdom markets based on market studies which it carried out.
18 Second, the applicant seeks confidential treatment of page 2281 of Annex A 41 which, it claims, contains confidential information on imports into the European Community of three‑door SxS refrigerators originating in the Republic of Korea.
19 In support of its application for confidentiality the applicant also states, first, that the communication of the information at issue would give its competitors a significant competitive advantage and, second, that that information has already been treated as confidential during the anti‑dumping procedure.
20 As regards Annex A 31, LG objects to the confidential treatment of page 2040. In LG’s view, the information on consumer preferences in the French and United Kingdom markets on that page does not relate to business secrets of the applicant but to objective indications of the preferences of the public in the markets in question. LG also notes that the applicant relies on that information in support of its fourth plea in law. Consequently, there is no valid reason for regarding the information on page 2040 as containing business secrets concerning the applicant. LG considers that that information is relevant to enable it to comment on the fourth plea in law raised by the applicant.
21 As regards Annex A 41, LG objects to the application for confidential treatment in so far as it concerns page 2281. In that regard, it submits that the information on that page does not relate to secret or confidential business data concerning the applicant, but to imports of three‑door SxS refrigerators originating in the Republic of Korea. In the present case, that information constitutes objective data which should not be treated as confidential. In addition, LG considers that that information is relevant to enable it to comment on the fourth plea in law raised by the applicant.
Findings of the President
22 Article 116(2) of the Rules of Procedure states:
‘[T]he 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.’
23 That provision lays down the principle that interveners are to receive a copy of every document served on the parties and permits only by way of derogation that certain secret or confidential documents or information not be sent to them (order in Case T‑30/89 Hilti v Commission [1990] ECR II‑163, publication by extracts, paragraph 10; order of the President of the Fourth Chamber of the Court of First Instance in Case T‑383/03 Hynix Semiconductor v Council [2005] ECR II‑621, paragraph 18; and order of the President of the Sixth Chamber of the Court of First Instance of 18 November 2008 in Case T‑274/07 Zhejiang Harmonic Hardware Products v Council, not published in the ECR, paragraph 17).
24 In that regard, it should be borne in mind, first, that 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 (see order in Hynix Semiconductor v Council, paragraph 31 and the case‑law cited). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restate those requirements in point 76, according to which ‘[a]n application [for confidential treatment] must accurately identify the particulars or passages to be excluded and briefly state the reasons for which each of those particulars or passages is regarded as secret or confidential’. The first subparagraph of Article 6(2) of the Instructions to the Registrar of the Court of First Instance (OJ 2007 L 232, p. 1) provides that an application for confidential treatment must be made in accordance with, inter alia, point 76 of the Practice Directions to parties (see order in Zhejiang Harmonic Hardware Products v Council, paragraph 18).
25 Second, where 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, paragraph 36). In so far as an application is not disputed there is no need to give a decision on it.
26 Third, in so far as an application made 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 each document and piece of information whose confidentiality is disputed and in respect of which an application for confidential treatment has been made is secret or confidential (see, to that effect, order in Hynix Semiconductor v Council, paragraph 38; order of the President of the Third Chamber, Extended Composition, of 13 January 2005 in Case T‑266/02 Deutsche Post v Commission, not published in the ECR, paragraph 21, and order in Zhejiang Harmonic Hardware Products v Council, paragraph 19).
27 In that regard, the President cannot be bound by the fact that certain documents and information were accorded confidential treatment by the Commission during the administrative procedure which has led to the adoption of the contested act. On the contrary, he has the task of examining whether the document or information in question is in fact secret or confidential (order in Hynix Semiconductor v Council, paragraph 40).
28 Where his examination leads him to conclude that certain documents and information whose confidentiality is disputed are secret or confidential, the President is then to assess and weigh up the competing interests, for each document and piece of information (orders in Hynix Semiconductor v Council, paragraph 42, and Zhejiang Harmomic Hardware Products v Council, paragraph 20).
29 It is in the light of those principles that the application for confidential treatment made by the applicant needs to be examined in so far as that application is contested, namely in relation to page 2040 of Annex A 31 and page 2281 of Annex A 41.
Page 2040 of Annex A 31
30 Annex A 31 is a document on imports of SxS refrigerators originating in the Republic of Korea, which the applicant presented at the Commission hearing on 15 May 2006. Page 2040 of Annex A 31 contains figures relating to the perception of consumers in France and the United Kingdom of two and three‑door SxS refrigerators. That information, which is relatively precise, detailed and recent (April 2006), shows the preferences of those consumers and comes from an internal market study carried out by the applicant.
31 It must therefore be accepted that that information, which is technical and purely internal in nature, constitutes a business secret.
32 The weighing-up of the competing interests leads to the conclusion that the information on page 2040 of Annex A 31 does not appear necessary for LG to be able to exercise its procedural rights. The information concerning the perception of consumers can in fact also be found, in summary form, in the applicant’s and the Council’s pleadings and in some parts of Annex A 31 to which LG has had access.
33 Whirlpool’s application must therefore be granted and confidential treatment accorded to the information on page 2040 of Annex A 31.
Page 2281 of Annex A 41
34 Annex A 41 reproduces the applicant’s observations of 28 July 2006 on the Commission’s revised definitive disclosure document. Page 2281 of that annex contains information on the volume of imports into the European Community of three‑door SxS refrigerators originating in the Republic of Korea. That information comes from a company which carried out a market study for the applicant.
35 Page 2281 contains a table which reproduces figures relating to imports to certain Member States of the Community, calculated in volumes for the years 2002 to 2006, of three‑door SxS refrigerators originating in the Republic of Korea.
36 It should be noted that that table contains information on the overall trade between the Community and a third country which is neither specific nor precise enough to be regarded as secret or confidential.
37 It should also be noted that some of those figures are five or more years old, namely those concerning the volume of imports for 2002, 2003 and 2004, and must therefore be regarded as historic (see, to that effect, order in Hynix Semiconductor v Council, paragraph 60).
38 It follows that the application for confidential treatment must be rejected in so far as it concerns page 2281 since the information on that page is neither secret nor confidential.
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. There is no need to give a decision on the application for confidential treatment made by Whirlpool Europe Srl vis-à-vis Electrolux.
2. The application for confidential treatment made by Whirlpool Europe Srl vis-à-vis the European Committee of Domestic Equipment Manufacturers (CECED) is granted.
3. The application for confidential treatment made by Whirlpool Europe Srl vis-à-vis LG Electronics as regards the relevant pages of Annexes A 6, A 9, A 13, A 15, A 19, A 25, A 31 and A 41 to the application is granted, subject to point 4 below.
4. The application for confidential treatment vis-à-vis LG Electronics regarding page 2281 of Annex A 41 to the application is refused.
5. The full version of page 2281 of Annex A 41 shall be served by the Registrar on LG Electronics.
6. A period shall be prescribed within which LG Electronics may set out in writing any additional observations in support of the form of order which it seeks.
7. Costs are reserved.
Luxembourg, 8 October 2009.