ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
19 June 2024 (*)
(Confidentiality – Challenge by the interveners)
In Case T‑784/22,
Zásilkovna s. r. o., established in Prague (Czech Republic), represented by R. Kubáč, lawyer,
applicant,
supported by
Brink’s Cash Solutions (CZ) a.s., established in Prague, represented by R. Kubáč, lawyer,
intervener,
v
European Commission, represented by J. Carpi Badía and L. Nicolae, acting as Agents,
defendant,
supported by
Česká pošta s. p., established in Prague, represented by P. Kadlec, lawyer,
and by
Czech Republic, represented by M. Smolek, J. Vláčil and L. Halajová, acting as Agents,
interveners,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, Zásilkovna s. r. o., seeks the annulment of Commission Decision (EU) 2023/232 of 25 July 2022 on the State aid SA.55208 (2020/C) (ex 2022/NN) implemented by Czechia for Czech Post (OJ 2023 L 32, p. 68) (‘the contested decision’).
Procedure
2 By application lodged at the Registry of the General Court on 13 December 2022, the applicant brought the present action.
3 On 22 March and 12 April 2023, respectively, the Czech Republic and Česká pošta s. p. (Czech Post) applied for leave to intervene in support of the form of order sought by the European Commission.
4 Between 19 April and 21 August 2023, the applicant submitted, pursuant to Article 144(2) of the Rules of Procedure of the General Court, requests for confidential treatment vis-à-vis the Czech Republic and Česká pošta concerning certain information in the application, the two annexes thereto, the reply and the rejoinder.
5 By two orders of 14 July 2023, the President of the First Chamber granted the Czech Republic and Česká pošta leave to intervene.
6 On 17 and 21 August 2023, respectively, the Czech Republic and Česká pošta challenged the requests for confidential treatment submitted by the applicant before each lodged a statement in intervention on 18 September 2023, on the basis of the non-confidential versions of the pleadings and documents referred to in paragraph 4 above.
7 By order of 15 November 2023, Zásilkovna v Commission (T‑784/22, not published), the President of the First Chamber rejected in part the request for confidential treatment concerning the material in the application and its annexes, and granted the requests for confidential treatment concerning the material in the reply and the rejoinder.
8 On 16 November 2023, the applicant submitted a request for confidential treatment of the observations which it had lodged on 8 November 2023 (‘the initial observations’) on the statements in intervention of the Czech Republic and Česká pošta. On 18 and 19 December 2023, respectively, the Czech Republic and Česká pošta challenged that request.
9 On 19 and 20 January 2024, respectively, the Czech Republic and Česká pošta lodged a supplementary statement in intervention after receiving a new non-confidential version of the pleadings and documents concerned by the order cited in paragraph 7 above.
10 On 18 March 2024, the applicant submitted a request for confidential treatment of the observations which it had lodged on 5 March 2024 (‘the additional observations’) on the additional statements in intervention of the Czech Republic and Česká pošta.
11 On 28 March 2024, the Czech Republic contested that request for confidential treatment.
The requests for confidential treatment
Outline of principles
12 Article 144(7) of the Rules of Procedure provides:
‘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 [of that article].’
13 That provision lays down the principle that interveners are to receive a copy of every document served on the main 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 (see order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 14 and the case-law cited).
14 In that regard, in the first place, it is clear from settled case-law, the substance of which is reproduced in paragraph 182 of the Practice Rules for the Implementation of the Rules of Procedure, that the party submitting a request for confidential treatment must accurately identify the particulars or passages to be excluded, that that request must 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 request being refused by the Court (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 12 and the case-law cited).
15 The degree of reasoning required may vary depending on the actual nature of each document and item of information concerned, with some being inherently confidential, whereas for others specific reasons must be provided for their confidential nature (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 13 and the case-law cited).
16 In the second place, when a party makes an application under Article 144(2) of the Rules of Procedure, the President is, in principle, to give a decision solely on the documents and information the confidentiality of which is disputed (see order of 27 March 2015, BASF Agro and Others v Commission, T‑584/13, not published, EU:T:2015:203, paragraph 16 and the case-law cited). The challenging of the request for confidentiality by the intervening parties must relate to precise items of the procedural documents which have been redacted and indicate the reasons for which confidentiality with regard to those items should be refused. Accordingly, a request for confidential treatment may be upheld in so far as it concerns items which have not been disputed, expressly and precisely, by those parties (see order of 20 January 2021, Nouryon Industrial Chemicals and Others v Commission, T‑868/19, not published, EU:T:2021:34, paragraph 13 and the case-law cited).
17 However, notwithstanding the fact that there is no challenge, the Court cannot be prevented from rejecting requests for confidential treatment in so far as they concern data the public nature of which is manifestly apparent from the information in the file or the confidential nature of which, as a result of the disclosure of other information in the file, becomes manifestly obsolete (see order of 21 January 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, not published, EU:T:2022:55, paragraph 12 and the case-law cited). Accordingly, in some circumstances, the President of the Chamber before which the case is pending may decide to rule on the non-contested aspects of a request for confidential treatment (order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 16).
18 In the third place, the President of the Chamber before which the case is pending is required, first of all, to examine whether each of the documents and items of information, the confidentiality of which is disputed and for which an application for confidential treatment has been made, is secret or confidential (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 17 and the case-law cited).
19 The requirement for the applicant to state reasons for the request for confidentiality is to be assessed in the light of the secret or confidential nature of each document and item of information concerned. A distinction must be drawn between, on the one hand, information which is inherently secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, on the other hand, documents or information which may be secret or confidential for a reason that it is for the applicant to provide (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 18 and the case-law cited).
20 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 inherently secret or confidential (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 19 and the case-law cited).
21 The concept of business secrets covers, inter alia, information of a commercial, competition-related, financial or accounting nature which is not normally available to those not directly connected with the undertaking and which cannot, due to its age, be regarded as historic (see order of 21 December 2022, Mostovdrev v Council, T‑259/22, not published, EU:T:2022:869, paragraph 14 and the case-law cited).
22 On the other hand, according to settled case-law, information which is already public or to which the general public or certain specialised circles may have access must be regarded as not being confidential (see order of 21 January 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, not published, EU:T:2022:55, paragraph 17 and the case-law cited).
23 Similarly, 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 order of 13 December 2023, SBK Art v Council, T‑102/23, not published, EU:T:2023:809, paragraph 19 and the case-law cited).
24 In the fourth place, where his or her examination leads him or her to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President of the Chamber before which the case is pending is then to assess and weigh up the competing interests, for each document and piece of information (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 20 and the case-law cited).
25 Thus, where confidential treatment is requested in the interests of the applicant, the President of the Chamber before which the case is pending 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 (see order of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 20 and the case-law cited).
26 In any event, an applicant for confidential treatment must, given the adversarial and public nature of the judicial proceedings, envisage the possibility that some of the secret or confidential documents or information which it has decided to place on the file appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (see order of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 25 and the case-law cited).
27 It is in the light of those principles that the merits of the requests for confidential treatment submitted by the applicant and the subject of the present order must be examined.
The merits of the requests for confidential treatment
28 By its requests for confidential treatment which are the subject of the present order, the applicant requests confidential treatment for certain information in:
– paragraphs 15, 30, 31, 33 to 35 and 50 of the initial observations;
– paragraphs 14, 16, 17 and 25 of the additional observations.
29 The applicant claims that that information is not available to the public and falls within the scope of business secrets, in that it relates to the applicant’s prices and costs, the identity of its customers, the volume of its consignments on behalf of those customers, its business strategies relating to prices and the number of its depots and pick-up points.
30 The Czech Republic and Česká pošta contend that the request for confidential treatment should be rejected in respect of the information relating to the applicant’s prices, its depots and pick-up points and the volume of its consignments. In essence, first, those interveners claim that the applicant has itself made public the information relating to its prices and the number of its depots and pick-up points, with the result that those data are not confidential. Second, they argue that it is essential for them to be able to submit observations on the information redacted by the applicant relating to the applicant’s relationship with specific customers, given that that information is intended to call into question the prices charged by Česká pošta and the compatibility of the aid, which is the subject of the contested decision, of which Česká pošta is the beneficiary.
31 In the first place, the applicant requests confidential treatment of general prices which it charges and the business strategies regarding the determination of those prices, which are to be found (i) in paragraphs 30 and 31 of the initial observations and (ii) in paragraphs 14, 16 and 17 of the additional observations.
32 In that regard, first, it should be stated that the information set out in paragraphs 30 and 31 of the initial observations, for which the applicant requests confidential treatment, is already known to the Czech Republic and to Česká pošta. The first and second indents of paragraph 30 of the initial observations consist of quoting paragraphs 63 and 64 of Annex A.4 to the application, which were fully disclosed to those interveners pursuant to the order of 15 November 2023, Zásilkovna v Commission (T‑784/22, not published). Similarly, the information in paragraph 31 of the initial observations may be inferred from paragraph 64 of Annex A.4 to the application and from paragraph 44 of Annex A.10 to the application, which were fully disclosed to those interveners pursuant to that order.
33 Consequently, the request for confidential treatment must be rejected as regards the information relating to prices set out in paragraphs 30 and 31 of the initial observations.
34 Second, the applicant requests confidential treatment of certain information relating to its prices which is set out in paragraphs 14, 16 and 17 of its additional observations. That information concerns (i) the prices which it offers for the delivery of standard size parcels and oversized parcels, (ii) the rates which it applies, for those two categories of parcels, in order to determine the fuel surcharge and the toll surcharge, and (iii) the results of a comparison, at different times, between its prices and those of Česká pošta.
35 As the Czech Republic submits, the applicant disseminates, on its website, a list of its prices which includes, inter alia, prices for standard size parcels and oversized parcels. In addition, that list also includes a section dealing with ‘charges and surcharges’, within which the surcharges for fuel and tolls are specified.
36 Accordingly, the applicant’s prices, which it redacted from paragraphs 14, 16 and 17 of the additional observations, are public and are not confidential.
37 In addition, as regards the third paragraph of the second indent of paragraph 16 of the additional observations, the applicant requests the redaction, first, of a description: ‘regular’ relating to registered customers of a service offered by Česká pošta, which does not appear to be confidential in nature and in respect of which the applicant does not give any specific reasons in its request. The same wording appears, moreover, in the second paragraph of the first indent of paragraph 16 of the additional observations, without the redaction of the wording in question having been requested. Second, the applicant also seeks the redaction of the result of the difference between its price and that of Česká pošta, while leaving those two prices visible, with the result that that difference can easily be calculated. Therefore, the data redacted in the third paragraph of the second indent of paragraph 16 of the additional observations are not confidential.
38 It follows that the request for confidential treatment must be rejected in so far as it relates to paragraphs 14, 16 and 17 of the additional observations, as regards both the Czech Republic and Česká pošta. While it is true that the latter did not raise any objections to the request for confidential treatment of the additional observations, that request relates to information which is clearly not confidential, which justifies its rejection even in the absence of any challenge, in accordance with the case-law referred to in paragraph 17 above.
39 In the second place, the applicant requests confidential treatment of information relating to some of its customers.
40 First, the applicant requests confidential treatment of information in connection with two of its ‘major clients’ to which Česká pošta allegedly offered abnormally low prices (‘customer No 1’ and ‘customer No 2’).
41 It requests, first of all, that such treatment be granted as regards the references to their names and their sector of activity, in paragraphs 33 and 34 of the initial observations and in paragraph 25 of the additional observations.
42 It is true that the names of the applicant’s customers and any evidence enabling them to be identified must be regarded as commercially sensitive data and are therefore confidential (see order of 15 November 2023, Zásilkovna v Commission, T‑784/22, not published, paragraph 52 and the case-law cited). However, it must be noted that, in paragraph 20 of the additional observations, the applicant stated, referring expressly to paragraph 33 of the initial observations, that it had ‘proved that it lost a significant part of the market share with large clients such as [name of customer No 1] and [name of customer No 2]’, without requesting confidential treatment for those names.
43 Therefore, even though the Czech Republic and Česká pošta have not challenged the redaction of the names of customers Nos 1 and 2, those names are known to them, with the result that the request for confidential treatment relating to those names is manifestly obsolete and must be rejected, in accordance with the case-law cited in paragraph 17 above. Since the names of customers Nos 1 and 2 are known to the Czech Republic and to Česká pošta, the request concerning the reference to their sector of activity in paragraphs 33 and 34 of the initial observations must also be rejected.
44 Next, the applicant requests confidential treatment of the price charged by Česká pošta as regards the delivery of parcels on behalf of customers Nos 1 and 2 and set out in paragraph 33 of the initial observations. That information is necessarily known to Česká pošta and to the Czech Republic, which is its sole shareholder. Furthermore, the price in question is set out in paragraph 34 of the initial observations, without the applicant requesting its redaction. It follows that that price is not confidential.
45 Moreover, the applicant requests confidential treatment of the price which it offers for its consignments that it carries out on behalf of customers Nos 1 and 2, in paragraphs 33 and 34 of the initial observations. In that regard, it should be noted that, as regards the information examined in paragraph 44 above, the applicant states that it was able to determine Česká pošta’s price on behalf of customer No 1 by connecting to customer No 1’s website and choosing a delivery using a service offered by Česká pošta. Any third party could do the same by choosing a delivery carried out by the applicant and, in so doing, know the price which it offers for consigning goods purchased from customers Nos 1 and 2. It follows that the price charged by the applicant for customers Nos 1 and 2 may be known by third parties, with the result that the request for confidential treatment concerning that information must be rejected.
46 Lastly, the applicant requests confidential treatment of the volume of consignments carried out on behalf of customer No 1 between April 2022 and April 2023, set out in paragraph 34 of the initial observations. Such information constitutes information of a commercial and competitive nature which is not normally available to third parties and which is therefore confidential in nature (see, to that effect, order of 15 November 2023, Zásilkovna v Commission, T‑784/22, not published, paragraph 53).
47 However, as regards the weighing up of the competing interests, in accordance with the case-law cited in paragraphs 24 to 26 above, the information referred to in the preceding paragraph constitutes details on which the applicant relies in order to attribute the fall in the volume of its consignments to the loss of several customers, in favour of Česká pošta, on account of the abnormally low prices offered by Česká pošta. In those circumstances, Česká pošta, whose pricing policy is directly referred to in the applicant’s arguments in support of its application for annulment of the contested decision, has a legitimate interest in being able to assess fully all the elements in support of such an argument, as well as the Czech Republic, which is its sole shareholder.
48 It follows that the request for confidential treatment concerning the information redacted in paragraphs 33 and 34 of the initial observations must be rejected.
49 Second, the applicant requests the redaction of information relating to nine other customers, set out in paragraph 35 of the initial observations, namely their names, the monthly volume of consignments that it carries out on their behalf and the basic price which it offers them for consignments up to 5 kg.
50 In that regard, first, it should be stated that the names of those customers are, in principle, confidential (see paragraph 42 above). In the present case, it is not apparent from the information in the file disclosed at this stage to the Czech Republic and to Česká pošta that those interveners are aware of those names, the confidential nature of which, in addition, they do not dispute. Accordingly, the request for confidential treatment must be granted in respect of the names set out in paragraph 35 of the initial observations.
51 Second, as to the prices negotiated by the applicant with the nine customers in question and the volume of monthly consignments carried out on their behalf, set out in paragraph 35 of the initial observations, that information is of a commercial and competitive nature and, therefore, may be granted confidential treatment.
52 However, as regards the weighing up of the competing interests, since the names of the customers in question are not disclosed to the Czech Republic or Česká pošta, the disclosure of the number of consignments carried out by the applicant on their behalf and of the prices agreed in that regard is less likely to affect the interests of the applicant. In addition, it should be noted that, by its argument in paragraph 35 of the initial observations, the applicant submits that, during their negotiations with the applicant, those customers sought to exert downward pressure by disclosing to it the prices charged by Česká pošta, and that it then became apparent that those prices were abnormally low. Thus, as has been held in paragraph 47 above, Česká pošta’s pricing policy is directly called into question by the applicant, with the result that it appears necessary for the exercise of its procedural rights and those of its sole shareholder, the Czech Republic, for those interveners to be able to have the information on the prices and monthly volume of consignments of the applicant, set out in paragraph 35 of the initial observations. The request for confidential treatment must therefore be rejected as regards that information.
53 Consequently, as regards the information relating to certain customers of the applicant set out in paragraphs 33 to 35 of the initial observations and in paragraph 20 of the additional observations, the request for confidential treatment must be rejected, with the exception of the customer names set out in paragraph 35 of the initial observations.
54 In the third place, the applicant requests confidential treatment of the number of its depots and its pick-up points in the Czech Republic, reproduced in paragraphs 31 and 50 of the initial observations respectively.
55 First, as regards the number of the applicant’s pick-up points in the Czech Republic, redacted from paragraph 31 of the initial observations, that information appears in paragraph 44 of Annex A.10 to the application, which was fully disclosed to the Czech Republic and to Česká pošta pursuant to the order of 15 November 2023, Zásilkovna v Commission (T‑784/22, not published) (see paragraph 32 above). Second, as regards the number of depots of the applicant in the Czech Republic, redacted from paragraph 50 of the initial observations, the same information already appears in paragraph 74 of the application, in respect of which a request for confidential treatment was rejected in the order of 15 November 2023, Zásilkovna v Commission (T‑784/22, not published), because of its public nature. Therefore, pursuant to that order, the Czech Republic and Česká pošta became aware of the number of depots and pick-up points of the applicant. The request for confidential treatment must therefore be rejected as regards the information relating to the applicant’s depots and pick-up points, set out in paragraphs 31 and 50 of the initial observations.
56 It follows from all of the foregoing that the request for confidential treatment vis-à-vis the Czech Republic and Česká pošta, concerning certain information in the initial observations and additional observations, must be upheld as regards the names of the companies set out in paragraph 35 of the initial observations, and rejected as to the remainder.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. The request for confidential treatment vis-à-vis the Czech Republic and Česká pošta s. p. is upheld in so far as concerns the names of the customers of Zásilkovna s. r. o. redacted in paragraph 35 of the observations of Zásilkovna on the statements in intervention of the Czech Republic and Česká pošta.
2. The request for confidential treatment is rejected as to the remainder.
3. A non-confidential version of the observations of Zásilkovna on the statements in intervention of the Czech Republic and Česká pošta, complying with points 1 and 2 of the operative part and communicated by Zásilkovna within the time limit indicated by the Registrar, shall be served by the latter on those two intervening parties.
4. The Registrar shall serve on the Czech Republic and Česká pošta the confidential version of the observations of Zásilkovna on the additional statements in intervention of those two intervening parties.
5. The costs are reserved.
Luxembourg, 19 June 2024.