Language of document : ECLI:EU:C:2021:81

ORDER OF THE PRESIDENT OF THE COURT

26 January 2021 (*)

(Appeal – Intervention – Confidentiality – Information treated as confidential at first instance)

In Case C‑376/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 August 2020,

European Commission, represented by G. Conte, C. Urraca Caviedes, J. Szczodrowski and M. Farley, acting as Agents,

appellant,

the other parties to the proceedings being:

CK Telecoms UK Investments Ltd, established in London (United Kingdom), represented by T. Wessely, Rechtsanwalt, O.W. Brouwer, advocaat, and by J. Aitken and M. Davis, solicitors,

applicant at first instance,

United Kingdom of Great Britain and Northern Ireland,

EE Ltd,

interveners at first instance,

THE PRESIDENT OF THE COURT

having regard to the proposal of A. Arabadjiev, Judge-Rapporteur,

after hearing the Advocate General, G. Pitruzzella,

makes the following

Order

1        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (T‑399/16, ‘the judgment under appeal’, EU:T:2020:217), by which the General Court annulled Commission Decision C(2016) 2796 final of 11 May 2016 declaring incompatible with the internal market the concentration resulting from the acquisition of Telefónica Europe plc by Hutchison 3G UK Investments Ltd (Case COMP/M.7612 – Hutchison 3G UK/Telefónica UK).

2        By a document lodged at the Registry of the Court of Justice on 20 November 2020, CK Telecoms UK Investments Ltd asked the Court to grant confidential treatment, vis-à-vis EE Ltd only, one of the two interveners at first instance, to certain items of information set out in paragraphs 3(d), 61, 70, 76, 90(c), 91(b), 171, 180, 181, 184, 185, 191, 193 and 198 of its response and in footnotes 2, 34 and 49 to that response, which could be regarded as business secrets and, for that reason, should not be communicated to EE, as the latter is a competitor of CK Telecoms UK Investments, and which correspond to items of information for which the General Court granted confidential treatment at first instance vis-à-vis EE.

3        CK Telecoms UK Investments also submitted, as an annex to its request for confidential treatment, a non-confidential consolidated version of its response.

4        By letter of 26 November 2020, the Registry of the Court invited the Commission, the defendant at first instance, to submit its observations on the request for confidential treatment made by CK Telecoms UK Investments.

5        That institution did not submit any observations on that request within the prescribed period.

6        In this regard, Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. Moreover, in accordance with Article 172 of those rules, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service of the appeal on that party. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on the parties admitted as interveners before the General Court.

7        However, where a party is requesting, vis-à-vis a party that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis that same party in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (order of the President of the Court of 1 October 2020, Commission v CK Telecoms UK Investments, C‑376/20 P, not published, EU:C:2020:789, paragraph 8 and the case-law cited).

8        In the present case, it must be noted that, in the proceedings at first instance, the President of the First Chamber of the General Court decided, by orders of 16 March and 26 September 2017, on the basis of Article 144(5) and (7) of the Rules of Procedure of the General Court, that the communication to EE, as an intervener at first instance, of the procedural documents served on the main parties was to be limited to a non-confidential version, with the decision on the merits of the requests for confidential treatment submitted by the main parties to be taken at a later stage.

9        In addition, as is apparent from paragraphs 49 to 53, 56 to 59, 62 and 63 of the judgment under appeal, following the requests for confidential treatment submitted by the main parties before the General Court following those orders, several items of information and material in the case file were made subject to such treatment vis-à-vis EE. Moreover, only a non-confidential version of the judgment under appeal was notified to EE. Since the items of information covered by the requests for confidential treatment submitted by CK Telecoms UK Investments were considered to be confidential by the General Court, they did not appear either in the non-confidential version of the procedural documents served on the main parties or in the non-confidential version of the judgment under appeal which was notified to EE.

10      It follows that the request made by CK Telecoms UK Investments that the Court keep confidential, vis-à-vis EE, the items of information set out in paragraphs 3(d), 61, 70, 76, 90(c), 91(b), 171, 180, 181, 184, 185, 191, 193 and 198 of its response and in footnotes 2, 34 and 49 to that response, which had already been made confidential in the case giving rise to the judgment under appeal, must be granted and only a non-confidential version of that response, in which those items of information are deleted, is to be served by the Registrar on EE.

On those grounds, the President of the Court hereby orders:

1.      Confidential treatment is granted, vis-à-vis EE Ltd, to the items of information set out in paragraphs 3(d), 61, 70, 76, 90(c), 91(b), 171, 180, 181, 184, 185, 191, 193 and 198 of the response of CK Telecoms UK Investments Ltd and in footnotes 2, 34 and 49 to that response, which had already been made confidential in the case giving rise to the judgment of the General Court of the European Union of 28 May 2020, CK Telecoms UK Investments v Commission (T399/16, EU:T:2020:217), and only a non-confidential version of that response, in which those items of information are deleted, is to be served by the Registrar on EE Ltd.

2.      The costs are reserved.


Luxembourg, 26 January 2021.


A. Calot Escobar

 

K. Lenaerts

Registrar

 

President


*      Language of the case: English.