ORDER OF THE PRESIDENT OF THE COURT
14 December 2020 (*)
(Appeal – Intervention – Confidentiality – Information treated as confidential at first instance)
In Case C‑465/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 September 2020,
European Commission, represented by L. Flynn, P.-J. Loewenthal and F. Tomat, acting as Agents,
appellant,
the other parties to the proceedings being:
Ireland, represented by M. Browne and J. Quaney, acting as Agents,
Apple Sales International, established in Cork (Ireland),
Apple Operations Europe, established in Cork,
represented by A. von Bonin, Rechtsanwalt, E. van der Stok, advocaat, D. Beard QC and by A. Bates, J. Bourke and L. Osepciu, Barristers,
applicants at first instance,
Grand Duchy of Luxembourg,
Republic of Poland,
EFTA Surveillance Authority,
interveners at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal of N. Wahl, 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 15 July 2020, Ireland and Others v Commission (T‑778/16 and T‑892/16, EU:T:2020:338, ‘the judgment under appeal’), by which the General Court annulled Commission Decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (OJ 2017 L 187, p. 1).
2 By a letter of 29 September 2020, the Registrar of the Court of Justice invited the Commission to indicate whether certain information contained in the documents lodged in support of its appeal should be considered confidential vis-à-vis the interveners at first instance.
3 In response to that letter, the Commission produced, on 30 September 2020, a non-confidential version of its appeal and of the annexes thereto which had been prepared by taking into account the non-confidential versions of the judgment under appeal and the Commission’s submissions before the General Court that had been served on the Grand Duchy of Luxembourg and the Republic of Poland in their capacity as parties given leave to intervene at first instance.
4 The Commission also stated that the applicants at first instance were better placed to indicate, under the control of the Court of Justice, which other parts of the appeal, if any, should be considered to contain confidential information that should be omitted vis-a-vis interveners at first instance.
5 On 9 October 2020, Apple Sales International and Apple Operations Europe, on the one hand, and Ireland, on the other, lodged observations on the non-confidential version of the appeal and annexes thereto which had been produced by the Commission. They stated, in essence, that, while that non-confidential version was indeed in conformity with the confidential treatment granted during the proceedings at first instance, they were additionally requesting that certain additional information also be treated as confidential, in particular vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland.
6 By letter of 13 November 2020, the Court asked the Commission and Ireland, as well as Apple Sales International and Apple Operations Europe to liaise with each other in order to produce to the Court, by 30 November 2020 at the latest, a common non-confidential version of the appeal and annexes thereto, removing only information that was already treated as confidential before the General Court vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, interveners at first instance in Case T‑778/16.
7 On 30 November 2020, Apple Sales International and Apple Operations Europe lodged at the Court Registry, in agreement with the Commission and Ireland, a common non-confidential version of the appeal and annexes thereto. By letters lodged at the Court Registry on 4 and 7 December 2020, respectively, the Commission and Ireland explicitly confirmed that they had approved the lodging of the common non-confidential version of the appeal and annexes thereto by Apple Sales International and Apple Operations Europe.
8 The latter parties stated in their letter of 30 November 2020, by reference to the decisions and orders relating to confidential treatment adopted by the General Court in Cases T‑778/16 and T‑892/16, that each item of redacted information in the documents thus lodged before the Court of Justice had been treated as confidential before the General Court, through confidential treatment of that information either in a specific document produced before the General Court or in another document also produced at first instance.
9 As regards the judgment under appeal, which is contained in Annex A 1 to the appeal, Apple Sales International and Apple Operations Europe indicated that only the public version of that judgment was to be communicated to the Grand Duchy of Luxembourg and the Republic of Poland. It is apparent from the case file submitted to the Court of Justice that only the public version of the judgment under appeal was served on those Member States by the General Court. Thus, the General Court treated the redacted information in the public version of that judgment as being confidential vis-à-vis those Member States.
10 It is apparent from the letter accompanying the non-confidential version of the appeal and annexes thereto, lodged on 30 November 2020, that the parties which lodged it, namely Apple Sales International and Apple Operations Europe, and the Commission and Ireland are not ultimately requesting any confidential treatment vis-à-vis the EFTA Surveillance Authority in the present appeal proceedings. Therefore, a full version of the appeal and annexes thereto may be served on that authority.
11 It should be recalled, with regard to the request for confidential treatment vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, that 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 the Rules of Procedure, 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 given leave to intervene at first instance.
12 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 (orders of the President of the Court of Justice of 13 December 2016, Lundbeck v Commission, C‑591/16 P, not published, EU:C:2016:967, paragraph 5, and of 2 September 2020, Eurofer v Commission, C‑226/20 P, not published, EU:C:2020:669, paragraph 4).
13 In the present case it should be noted, on the basis of the common non-confidential version of the appeal and annexes thereto lodged at the Registry of the Court of Justice by Apple Sales International and Apple Operations Europe, in agreement with the Commission and Ireland, on 30 November 2020, and the covering letter that accompanied it, that confidential treatment is requested, in the context of the present appeal proceedings, solely in respect of information that was treated as confidential before the General Court.
14 It follows that it is necessary to grant, in its entirety, the request that the Court treat as confidential, vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, the information redacted from the common non-confidential version of the appeal and annexes thereto lodged at the Court Registry by Apple Sales International and Apple Operations Europe, in agreement with the Commission and Ireland, on 30 November 2020.
15 In those circumstances, only the common non-confidential version of the appeal and annexes thereto lodged at the Court Registry by Apple Sales International and Apple Operations Europe, in agreement with the Commission and Ireland, on 30 November 2020 is to be served on the Grand Duchy of Luxembourg and the Republic of Poland.
On those grounds, the President of the Court hereby orders:
1. The information redacted from the common non-confidential version of the appeal and annexes thereto, lodged at the Registry of the Court of Justice by Apple Sales International and Apple Operations Europe, in agreement with the European Commission and Ireland, on 30 November 2020, shall be treated as confidential vis-à-vis the Grand Duchy of Luxembourg and the Republic of Poland, and that non-confidential version alone shall be required to be served, by the Registrar, on the latter two Member States.
2. The costs are reserved.
Luxembourg, 14 December 2020.
A. Calot Escobar | | K. Lenaerts |