ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
8 May 2012 (*)
(Confidentiality – Challenge)
In Case T‑104/07,
Belgische Vereniging van handelaars in– en uitvoerders geslepen diamant (BVGD), established in Antwerp (Belgium), represented initially by G. Vandersanden, L. Levi and C. Ronzi, and subsequently by L. Levi and M. Vandenbussche, lawyers,
applicant,
v
European Commission, represented initially by F. Castillo de la Torre, R. Sauer and S. Drakakakis, and subsequently by F. Castillo de la Torre, R. Sauer and J. Bourke, acting as Agents, and by T. Soames, Solicitor,
defendant,
supported by
De Beers, established in Luxembourg (Luxembourg),
De Beers UK Ltd, formerly The Diamond Trading Co. Ltd, established in London (United Kingdom),
represented initially by W. Allan and S. Horwitz, Solicitors, subsequently by W. Allan, J. Ysewyn, lawyer, and N. Gràcia Malfeito, Solicitor, and lastly by N. Gràcia Malfeito, B. van de Walle de Ghelcke, J. Marchandise, lawyers and P. Riedel, Solicitor,
interveners,
APPLICATION for the annulment of the Commission’s Decision of 26 January 2007 rejecting BVGD’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements (Case COMP/39.221/B-2 – BVGD/De Beers),
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the General Court Registry on 6 April 2007, the applicant, Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (‘BVGD’), brought an action seeking annulment of the Commission’s Decision of 26 January 2007 rejecting its complaint against De Beers and The Diamond Trading Co. Ltd alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements (Case COMP/39.221/B-2 – BVGD/De Beers) (‘the contested decision’).
2 By document lodged at the Court Registry on 3 July 2007, De Beers and The Diamond Trading Co. Ltd (now De Beers UK Ltd) (together ‘De Beers’) applied for leave to intervene in support of the form of order sought by the Commission of the European Communities.
3 By letter of 8 February 2008, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in the application and the annexes thereto. In that same letter, it also requested the Court to adopt a measure of organisation of procedure so that, were the application for confidential treatment to be dismissed, the future interveners would be prohibited from using, for purposes other than those of the present proceedings, the documents and information disclosed.
4 By order of the President of the Seventh Chamber of the Court of 20 May 2008, De Beers was granted leave to intervene in support of the form of order sought by the Commission. The decision on the merits of the application for confidential treatment was reserved.
5 By letters of 29 April and 29 May 2008, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in the defence and the annexes thereto. In its letter of 29 May 2008, BVGD also requested the Court to adopt a measure of organisation of procedure so that, were the application for confidential treatment to be dismissed, the future interveners would be prohibited from using, for purposes other than those of the present proceedings, the documents and information disclosed.
6 By letter of 19 June 2008, De Beers contended that none of the passages redacted in the non-confidential versions of the application, the defence and the annexes to those documents, communicated to it, should be granted confidential treatment. In the alternative, De Beers submitted that BVGD be directed to give further and better particulars of its applications for confidential treatment and that De Beers be given a further opportunity to comment on such particulars. De Beers did not object to the application for a measure of organisation of procedure lodged by BVGD on 8 February 2008, stating that it was willing to consent to an order that it must use the documents and information disclosed only for the purposes of the present proceedings, save where such other use is permitted by European Union law.
7 By letter of 20 June 2008, BVGD applied for confidential treatment vis‑à-vis De Beers of the whole of a letter from the Commission to the Court dated 10 June 2008.
8 On 20 June 2008, BVGD also sent the Court a non-confidential version of its application for an extension of the time-limit for lodging the reply.
9 By letter of 30 June 2008, the Commission submitted to the Court observations on the applications for confidential treatment of which it had been sent copies.
10 By letter of 4 July 2008, De Beers contended that the Commission’s letter of 10 June 2008 and the application for the extension of the time‑limit for lodging the reply should not be granted confidential treatment. In the alternative, it requested that BVGD be directed to give further and better particulars of its applications for confidential treatment and that De Beers be given a further opportunity to comment on such particulars.
11 By letter of 18 August 2008, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in its observations on the Commission’s letter of 30 June 2008 and the annex to them. In the letter of 18 August 2008, BVGD also requested the Court to adopt a measure of organisation of procedure so that, were the application for confidential treatment to be dismissed, De Beers would be prohibited from using, for purposes other than those of the present proceedings, the documents and information disclosed.
12 By letter of 7 October 2008, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in the reply and the annexes thereto.
13 By letter of 30 October 2008, BVGD applied for confidential treatment vis-à-vis De Beers of certain information in its observations on De Beers’ statement in intervention.
14 By letter of 27 November 2008, De Beers contended that none of the passages redacted in the non-confidential versions of (i) BVGD’s observations on the Commission’s letter of 30 June 2008, (ii) the reply and the annexes thereto and (iii) BVGD’s observations on the statement in intervention, communicated to it, should be granted confidential treatment. In the alternative, De Beers requested that BVGD be directed to give further and better particulars of its applications for confidential treatment and that De Beers be given a further opportunity to comment on such particulars. De Beers did not object to the application for a measure of organisation of procedure lodged by BVGD on 18 August 2008, stating that it was willing to consent to an order that it must use the documents and information disclosed only for the purpose of the present proceedings, save where such other use is permitted by European Union law.
15 By letter of 20 May 2009, BVGD applied for confidential treatment vis‑à-vis De Beers of certain information in the rejoinder and the annexes thereto.
16 By letters of 19 June and 7 August 2009, De Beers contended that none of the passages redacted in the non-confidential version of the rejoinder and the annexes thereto, communicated to it, should be granted confidential treatment. In the alternative, De Beers requested that BVGD be directed to give further and better particulars of its applications for confidential treatment and that De Beers be given a further opportunity to comment on such particulars.
17 Non-confidential versions of the various procedural documents, prepared by BVGD, were transmitted to De Beers.
The applications for confidential treatment
Subject-matter of the applications for confidentiality
18 BVGD has submitted applications for the confidential treatment of certain information in the application, the defence, the reply, the rejoinder, the Commission’s letter of 10 June 2008, BVGD’s observations on the statement in intervention and on the Commission’s letter of 30 June 2008, and the annexes to those procedural documents.
19 As regards, first, the originating application and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– the sub-headings in Section II.2.B.2, and the redacted information in the table of contents, in paragraphs 30 to 67, 73, 80, 81, 83 to 88, 91 to 106, 108, 113 to 116, 128, 136, 138, 139, 142 to 144, 146 to 158, 160, 161, 164, 167, 170, 171, 173 to 175, 177, 181, 183, 186 to 188, 190, 192 to 196, 198 to 200, 207, 208, 217, 218, 227, 235, 237, 238, 240, 255, 257, 259 to 261, and in footnote No 54;
– the information redacted in Annex A.3;
– Annexes A.7 to A.60 in their entirety, including reference to them in the list of annexes.
20 As regards, second, the defence and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– the redacted information in headings 2.3 and 2.4, in the table of contents, in paragraphs 2 to 5, 20, 25, 28, 34, 35, 37 to 40, 46, 48 to 51, 54 to 57, 62, 63, 70, 71, 73 to 76, 78, 80 to 84, 89 to 91, 94, 99, 101 to 104, 107, 128, 130 and in footnotes Nos 4, 5, 7, 9, 19, 21, 37, 44, 46, 48, 50, 51, 53, 54 to 57, 60 to 66, 68, 72 to 74, 76, 78, 79, 81, 86, 88, 89, 95, 97, 101 to 103, 105 to 108, 110 to 112, 116 to 118, 120, 122, 123, 126, 127, 131 to 133, 135, 136, 140, 143, 144, 155, 158, 159, 162, 164 to 166, 168, 169, 171, 172, 181 to 183, 186 and 190;
– Annexes B.1.1 to B.1.4, B.1.6, B.1.7, B.6, B.7.1, B.7.2, B.7.5 and B.7.6 in their entirety, including reference to them in the list of annexes.
21 As regards, third, the reply and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– title II.1, and the redacted information in the introduction, in paragraphs 2 to 5, 12 to 17, 20, 23, 31 to 33, 35 to 37, 41, 49 to 52, 55 to 62, 68, 72, 74, 83, 86 and in footnotes Nos 11 and 17;
– Annexes C.2 to C.10bis in their entirety, including reference to them in the list of annexes.
22 As regards, fourth, the rejoinder and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– the redacted information in paragraphs 6, 9, 10, 17 to 20, 25, 28, 29, 31, 34, 37 to 40, 42, 47, 49, 51 to 53 and in footnotes Nos 4, 9, 11 to 14, 17, 19, 21, 34, 37, 51, 56, 58 to 60, 65 to 67, 74, 78, 79, 81, 83, 88, 92, 98, 99, 102, 103 and 106 to 109;
– Annexes D.1 and D.6 in their entirety, including reference to them in the list of annexes.
23 As regards, fifth, the Commission’s letter of 10 June 2008, the application for confidential treatment vis-à-vis De Beers relates to the letter in its entirety.
24 As regards, sixth, BVGD’s observations on the statement in intervention, the application for confidential treatment vis-à-vis De Beers relates to the redacted information in paragraphs 1 to 3, 9, 28, 35 and 46.
25 As regards, seventh, BVGD’s observations on the Commission’s letter of 30 June 2008, the application for confidential treatment vis‑à‑vis De Beers relates to the redacted information in points 1 and 2, in the conclusion and in the annex.
26 In addition, BVGD transmitted to the Court confidential and non‑confidential versions of its applications for confidential treatment of 8 February, 20 June and 18 August 2008. It also communicated to the Court on 20 June 2008 a non‑confidential version of its application for an extension of the time-limit for lodging the reply.
The merits of the applications for confidentiality
Preliminary observations
27 The applications for confidential treatment were made pursuant to Article 116(2) of the Rules of Procedure of the General Court, which provides that although ‘[t]he intervener shall receive a copy of every document served on the parties’, ‘[t]he President may, however, on application by one of the parties, omit secret or confidential documents’.
28 This provision lays down the principle that interveners are to receive a copy of every pleading served on the parties, and permits only by way of derogation that certain secret or confidential documents or information not be sent to them (orders in Case T‑30/89 Hilti v Commission [1990] ECR II-163, publication by extracts, paragraph 10; of the President of the Fourth Chamber of the Court in Case T‑383/03 Hynix Semiconductor v Council [2005] ECR II‑621, publication by extracts, paragraph 18; and of the President of the Fourth Chamber (Extended Composition) of the Court of 2 May 2007 in Case T-388/02 Kronoply and Kronotex v Commission, not published in the ECR, paragraph 24).
29 In that connection, in the first place, the Instructions to the registrar of the General Court (OJ 2007 L 232, p. 1) provided, at Article 6(2) thereof, that an application for confidential treatment must be made in accordance with the provisions of the Practice Directions to parties (points 74 to 77).
30 In accordance with point 74 of the Practice Directions to parties (OJ 2007 L 232, p. 7), the application for confidential treatment must be made by a separate document.
31 In addition, under point 75 of the Practice Directions to parties, an application for confidential treatment must be limited to what is strictly necessary, and it may not in any event cover the entirety of a pleading, and may only exceptionally extend to the entirety of an annexed document. Point 75 also states that it should usually be feasible to furnish a non-confidential version of a document in which passages, words or figures have been deleted without harming the interest sought to be protected.
32 Furthermore, as provided in point 76 of the Practice Directions to parties, an 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. In accordance with point 75 of those directions, an application which is insufficiently detailed will not be considered.
33 Accordingly, the party who makes an application for confidentiality must specify the documents or information covered and duly state the reasons for which they are confidential (see order of the President of the Third Chamber of the Court of 3 May 2011 in Case T‑384/09 SKW Stahl-Metallurgie Holding and SKW Stahl‑Metallurgie, not published in the ECR, paragraph 25, and the case-law cited).
34 In the second place, 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 (orders in Hynix Semiconductor v Council, paragraph 36, and in Kronoply and Kronotex v Commission, paragraph 27).
35 The intervener’s challenge to the application for confidentiality must relate to precise items of the procedural documents which have been redacted and must indicate the reasons for which confidentiality with regard to those items should be refused. Accordingly, a request for confidential treatment must be allowed in so far as it concerns items which have not been disputed by the intervener, or which the latter has not disputed expressly and precisely (orders of the President of the Fifth Chamber of the Court in Case T-271/03 Deutsche Telekom v Commission [2006] ECR I-1747, paragraphs 12, 14 and 15; of the President of the Second Chamber of the Court of 29 April 2008 in Case T‑275/06 Omya v Commission, not published in the ECR, paragraph 9; and of the President of the Seventh Chamber of the Court of 14 October 2009 in Case T-353/08 vwd Vereinigte Wirtschaftsdienste v Commission, not published in the ECR, paragraph 10).
36 In the third place, in so far as an application made under the second sentence of Article 116(2) of the Rules of Procedure is disputed, the President must first of all examine whether the documents and information whose confidentiality is disputed, and in respect of which an application for confidential treatment has been made, are secret or confidential (orders in Hynix Semiconductor v Council, paragraph 38, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 15).
37 The requirement to state reasons for the application for confidentiality is to be assessed in light of the secret or confidential nature of each of the documents and pieces of information covered. Indeed, a distinction must be drawn between (i) information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or which is by nature confidential, such as purely internal information and (ii) other documents or information which may be secret or confidential for a reason that is for the applicant to furnish (see orders in Hynix Semiconductor v Council, paragraph 34, and the case-law cited, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 16).
38 Therefore, the secret or confidential character 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 secret or confidential by its very nature (orders of the President of the Sixth Chamber of the Court of 18 November 2008 in Case T-274/07 Zhejiang Harmonie Hardware Products v Council, not published in the ECR, paragraph 25, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 17).
39 In the fourth place, where his examination leads him to conclude that some of the 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 vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 24).
40 Where confidential treatment is requested in the interests of the applicant – contrary to BVGD’s claim that interveners do not enjoy the same rights of access to the file as the main parties – the President balances, for each document or piece of information, the applicant’s legitimate concern to prevent serious harm to his interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders in Hilti v Commission, paragraph 11; Hynix Semiconductor v Council, paragraph 44; Deutsche Telekom v Commission, paragraph 10; and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 25).
41 Where confidential treatment is requested in the interests of a person not party to the dispute, the President balances, for each document or piece of information, that person’s interest that the secret or confidential documents or information which concern him should be protected and the interest of the interveners in having them for the purpose of exercising their procedural rights (orders of the President of the Fifth Chamber (Extended Composition) of the Court in Case T‑102/96 Gencor v Commission [1997] ECR II-879, paragraph 18, and in Hynix Semiconductor v Council, paragraph 45).
42 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 may appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (orders in Case T-89/96 British Steel v Commission [1997] ECR II-835, paragraph 24; Hynix Semiconductor v Council, paragraph 46; and Zhejiang v Council, paragraph 22).
43 The applications for confidential treatment submitted in the present case must be examined in the light of the above-mentioned principles.
The confidential versions of the applications for confidentiality
44 The submission of a confidential version of an application for confidential treatment prevents the intervener from effectively challenging the application for confidential treatment lodged against it, since some or all of the pleas in law advanced by the applicant in that application may be redacted. The submission of such a confidential version cannot therefore be accepted and, consequently, the confidential versions of the applications for confidential treatment of the originating application, letter of 10 June 2008 and observations on the letter of 30 June 2008 cannot be taken into consideration.
The redacted information to which De Beers has objected
45 De Beers has disputed expressly and precisely all of BVGD’s applications for confidentiality.
46 In the first place, it must be found that BVGD’s application for confidential treatment of its application for an extension of the time‑limit for lodging the reply (see paragraphs 8 and 26 above) satisfies neither the requirement to make the application by a separate document, referred to in paragraph 30 above, nor the requirement to state reasons, referred to in paragraphs 32 and 33 above. BVGD simply lodged a non-confidential version of that application for an extension, without making a formal, reasoned application for confidential treatment by separate document.
47 The application for confidential treatment of the letter of 10 June 2008 (see paragraphs 7 and 23 above) does not satisfy the requirement to state reasons either, since, in the non-confidential version of that application, BVGD simply states that the letter is confidential in its entirety and must be treated as such, without even referring to its subject-matter.
48 In addition, all the applications for confidential treatment referred to in paragraph 19, first indent, paragraph 20, first indent, and paragraphs 21, 22 and 24 above must be found not to have satisfied the requirement to state reasons. With regard to the redacted passages at issue, BVGD does not at any time specify the content of the documents or information to be omitted from the procedural documents served on De Beers. First, it simply refers in those applications for confidentiality to one or more paragraphs of the originating application and the defence or to one or more paragraphs or annexes of the reply, the rejoinder or the observations on the statement in intervention. Second, it merely refers to six or seven general reasons restated in each application for confidentiality – some extremely briefly, for example, the second reason described simply as ‘Business secrets’ – and in the main simply cites a number of those reasons in relation to each of the paragraphs and annexes for which confidentiality is sought. In those circumstances, De Beers is not in a position to identify the information at issue and, a fortiori, to put forward its observations on the confidentiality of that information or the need that might exist for it to be disclosed to it (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 32). The same is true of the application for confidentiality in relation to Annex A.3 of the originating application (referred to in paragraph 19, second indent, above) comprising BVGD’s complaint giving rise to the main proceedings, since, although BVGD refers to the subject-matter of that annex, it does not in any way specify the content of the information in that annex which it claims should be redacted and merely states that that information is confidential and should not be disclosed to De Beers.
49 Admittedly, according to case-law, the requirement to state reasons is to be assessed in light of the secret or confidential nature of each of the documents and pieces of information covered, and the Court will recognise the secret or confidential character of the documents or information for which no reasoning is given other than a description of their content only in so far as that information can be considered secret or confidential by its very nature (see paragraphs 37 and 38 above).
50 However, while the requirement to state reasons is lower with regard to information which by its nature constitutes business secrets or confidential information, this does not mean that there is no requirement to state reasons at all. It is still necessary to describe the content of the documents or information for which confidentiality is sought, so that the intervener may take a view on such confidentiality, without, however, disclosing to it the document or information at issue (see the case-law set out in paragraph 38 above, alluded to in paragraph 49 above). Such a description is lacking in the applications for confidential treatment referred to in paragraph 48 above.
51 The applications for confidential treatment referred to in paragraphs 19, first and second indents, paragraph 20, first indent, paragraphs 21 to 24 and paragraph 26 above must therefore be dismissed.
52 In the second place, as regards the applications for confidential treatment referred to in paragraph 19, third indent, paragraph 20, second indent, and paragraph 25 above, in relation to certain annexes of the originating application and of the defence and to BVGD’s observations on the Commission’s letter of 30 June 2008, it must be found that, while those applications for confidential treatment cannot, in principle, be dismissed for failure to state reasons, account will nevertheless have to be taken of the succinctness of the reasons provided where their confidential nature is not sufficiently clear from the examination of the particulars at issue. Such consideration is, in the interests of the proper administration of justice, a fortiori necessary where, as in the present case, the confidential treatment sought concerns a substantial amount of information (see, to that effect, the order of the President of the Third Chamber (Extended Composition) of the Court of 13 January 2005 in Case T-266/02 Deutsche Post v Commission, not published in the ECR, paragraph 23).
53 In the present case, when the documents and information covered by those applications for confidentiality are examined individually, it is apparent that they are neither secret nor confidential.
54 First, information available if not to the public at large at least to specialist circles, or capable of being inferred from such information, must be regarded as neither secret nor confidential (see order of the President of the First Chamber of the Court of 5 August 2003 in Case T‑168/01 Glaxo Wellcome v Commission, not published in the ECR, paragraph 43, and the case-law cited).
55 That applies to (i) the joint press release of De Beers and Alrosa of 6 September 2006, relating to their joint diamond prospecting and exploration activities (annex to Annex A.47 of the originating application), (ii) the articles from a specialist publication in the diamond sector, reproduced in Annex A.17 of the application and (iii) internet publications in Annexes 1, 2 and 4 to Annex A.18 and in the two annexes to Annex A.47 of the application.
56 Second, information must be regarded as neither secret nor confidential where it concerns the interveners and is necessarily known to them (order of the President of the Second Chamber of the Court of 21 March 1994 in Case T-24/93 Compagnie maritime belge transports et Compagnie maritime belge v Commission, not published in the ECR, paragraphs 13 and 14), which is also the case of (i) information of which the interveners are or may already have become aware legitimately (orders of the President of the Fourth Chamber (Extended Composition) of the Court of 25 June 1997 in Case T-215/95 Telecom Italia v Commission, not published in the ECR, paragraph 19, and in Glaxo Wellcome v Commission, paragraph 45) and of (ii) information which is largely apparent, or may be deduced, from information of which they are aware or which will be disclosed to them (orders of the President of the Fourth Chamber (Extended Composition) of the Court in Case T‑234/95 DSG v Commission, not published in the ECR, paragraph 14, and of the President of the Second Chamber (Extended Composition) of the Court of 3 July 1998 in Case T-143/96 Volkswagen and Volkswagen Sachsen v Commission, not published in the ECR, paragraphs 20 and 32).
57 This clearly applies, in the present case, to all the data concerning De Beers, such as (i) that relating to its production (Annex 3 to Annex A.18 of the originating application) and (ii) the information concerning the ongoing judicial proceedings before the US courts in which it is implicated (general data in that regard supplied by BVGD in Annex A.14 of the application, and the order and injunction of a US court reproduced in Annex A.17 of the application), all the more so when De Beers is the author of the information at issue (Annex 6 to Annex A.18 of the application, setting out the extract from a website reproducing the interview with a De Beers director on the group’s vertical integration policy and, for the sake of completeness, Annex C.5 of the reply reproducing De Beers’ responses to the Commission’s supplementary requests for information dated 9 and 29 October 2007).
58 Further examples of this include the various information on the SOC system of distribution set up by De Beers, in particular the documents relating to the selection of the ‘sightholders’ (the announcement from the Diamond Promotion Service, part of the De Beers group, seeking to promote the status of ‘sightholder’, reproduced in Annex 5 to Annex A.18 of the application; for the sake of completeness, see also (i) the questionnaire sent to the ‘sightholders’, the ‘Sightholder Profile Questionnaire’, (ii) the notes attached thereto, (iii) the letter to be enclosed with the response, (iv) the pre-registration form before submitting the profile, and (v) the letter sent to applicants for sightholder status, reproduced in Annexes 1 to 5 to Annex A.3 of the application). Some of those documents, moreover, were disclosed by De Beers when the SOC arrangements were notified to the Commission on 3 May 2001. Other such examples of information which must be regarded as neither secret nor confidential include that relating to the terms of reference of the Ombudsman, who was appointed in response to the Statement of Objections of 25 July 2001 concerning the SOC arrangements (annex to Annex A.55, Annex 2 to Annex A.30 and the annex to Annex A.35 of the application; also, for the sake of completeness, paragraph 83 of the reply, paragraphs 51 to 53 and Annex D.6 of the rejoinder, and paragraph 46 of the observations on the statement in intervention).
59 For the sake of completeness, since De Beers is already aware of its content, reference should also be made to Annex C.9 of the reply, which constitutes a summary of the Commission’s applications to extend the time‑limits in the present proceedings and the Court’s responses to them, which were all notified to De Beers as an intervener in the present case as no application for confidential treatment had been made in relation to them.
60 Third, information reproduced a number of times in the pleadings must be regarded as neither secret nor confidential where confidential treatment is not requested for each of the passages in which it appears. In that case, the information concerned will in any event be disclosed to the interveners (orders of the President of the Second Chamber (Extended Composition) of the Court of 9 November 1994 in Case T‑9/93 Schöller Lebensmittel v Commission, not published in the ECR, paragraph 11, and of the President of the Fourth Chamber of the Court of 16 September 1998 in Case T-252/97 Dürbeck v Commission, not published in the ECR, paragraph 13).
61 In the present case, this applies, for example, to (i) the description of the content of the Commission’s letter of 30 June 2008 which is redacted in BVGD’s observations on that letter, whereas that letter has been placed on the file and notified by the Court to De Beers, and to (ii) the arguments concerning the confidentiality of the supplementary rejection decision, also redacted in those observations (point 2 and annex) yet referred to in a number of the applications for confidentiality without confidential treatment being requested for them.
62 For the sake of completeness, reference may also be made to the following: (i) the names of the largest producers of rough diamonds in the world redacted in the first sentence of paragraph 94 of the defence and yet referred to alongside their respective market shares, in particular, in the sentence thereafter for which confidentiality has not been sought; (ii) the account of a case concerning a ‘sightholder’, redacted in paragraph 83 of the reply yet set out in non-confidential Annex C.13; and (iii) the information relating to the status of BVGD’s members and arguments concerning the confidentiality of certain procedural documents referred to in paragraphs 1 to 3 and 28 in the observations on the statement in intervention, taken from the non‑confidential version of the statement in intervention and referred to in a number of the applications for confidentiality – including that for confidential treatment of the defence – yet for which confidentiality has not been sought.
63 Fourth, information which is not by nature business secrets or confidential data, and which BVGD has not shown as amounting to such, must be regarded as neither secret nor confidential (see paragraph 37 above). This applies to the following: (i) the initial decision rejecting BVGD’s complaint (Annex A.55 of the application), contested in the present case, and the supplementary rejection decision (Annex C.10bis of the reply and Annex D.1 of the rejoinder); (ii) the ‘Case orientation’ letter of 29 March 2006 (Annex A.20 of the application) and BVGD’s observations on that letter (Annex A.26 of the application); and (iii) the letters pursuant to Article 7 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2005 L 123, p. 18) (letter of 4 August 2006 reproduced in Annex 35 of the application and letter of 13 November 2007 reproduced, inter alia, in Annex B.6 of the defence) and BVGD’s observations on those letters (its observations of 19 September 2006 on the letter of 4 August 2006 reproduced in Annex A.47 of the application and its observations of 15 January 2008 on the letter of 13 November 2007 reproduced in Annex C.4 of the reply).
64 Reference must also be made in that context to the information concerning the supplementary procedure giving rise to the supplementary rejection decision, redacted in the observations on the letter of 30 June 2008, and also, for the sake of completeness, to the paragraphs of the pleadings for which confidentiality is sought, because of the reference to information contained in, or relating to, the above‑mentioned documents (see, inter alia, paragraphs 86, 114, 143, 144, 170, 194, 238, 260 and 261 of the application; paragraphs 3, 4, 63, 94, 102 and 130 of the defence; paragraphs 2, 33, 36, 49, 72 and 74 of the reply; and paragraphs 6, 18, 34 and 42 of the rejoinder) and the information on the supplementary procedure referred to in the letter of 10 June 2008.
65 First, those documents and passages, which are concerned with or constitute the main documents in the procedures initiated following the complaint giving rise to the present dispute, do not amount to information purely internal to BVGD or to the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18). Second, although BVGD claims, generally, that some of those documents and passages contain business secrets, it does not in any way describe the information in them which constitutes business secrets of a commercial, competition-related, financial or accounting nature (see paragraph 50 above).
66 BVGD puts forward a variety of arguments in order to establish that the documents and passages at issue are nonetheless confidential. However, those arguments cannot succeed.
67 First of all, BVGD submits, in essence, that all the documents in the procedures initiated further to its complaint are confidential since it has requested the Commission to treat them as such and the Commission has granted such confidential treatment, as evidenced by the heading ‘Confidential’, in particular in the contested decision. It is sufficient in that regard to refer to the settled case-law according to which 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 led to the adoption of the contested act (see order in Hynix Semiconductor v Council, paragraph 40, and the case-law cited). The rules on confidential treatment applied by the Courts of the European Union and by the Commission are different, the former applying the provisions of its Rules of Procedure and the latter those contained, inter alia, in Regulation No 773/2004 and in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). BVGD cannot therefore rely on the fact that De Beers cannot access the documents referred to above under Article 15(1) of Regulation No 773/2004, which restricts such access to parties to whom a statement of objections has been addressed, nor on the application of Regulation No 1049/2001, in order to justify the confidential treatment of those documents before the General Court.
68 BVGD then submits that the documents and information from the Commission reflected the latter’s position before the Court annulled the commitments given by De Beers and that the supplementary procedure initiated further to that annulment is ongoing. Although, by that argument, BVGD expresses its fear of ‘interference’ as a result of disclosing the information concerned with the progress and outcome of the procedures at issue to De Beers, it must be found that there is no longer any likelihood of such interference since the procedures in question have been concluded since 5 June 2008, the date on which the supplementary rejection decision was adopted.
69 BVGD submits, lastly, that De Beers must not be allowed to rely on the contested decision – which rejects the complaints against the SOC arrangements – in order to defend the SOC system. It should be noted in that respect that the rejection of a complaint is not in itself confidential. The person whose conduct is the subject‑matter of the complaint is, in accordance with the Commission’s consistent practice, referred to in its letter of 30 June 2008 (see paragraph 9 above), informed that the complaint has been rejected, and BVGD itself has disclosed that decision by publicly challenging it (see BVGD’s public statements in annex to De Beers’ observations of 19 June 2008, referred to in paragraph 6 above) and also by bringing the present action.
70 In any event, even assuming that BVGD has established that the documents and information referred to in paragraphs 63 and 64 above are secret or confidential, after the competing interests have been weighed up they would be disclosed to De Beers. The documents and the information appear necessary in order for De Beers to exercise its procedural rights, since it could not comment effectively on BVGD’s pleas in law directed against the contested decision if it did not have access to that decision and to all the documents of the procedure – before and after the contested decision – to which BVGD refers on numerous occasions in order to substantiate its arguments (see paragraphs 40 and 42 above).
71 In addition, the exchange of correspondence between BVGD and the Commission, before and after the contested decision was adopted, must be regarded as neither secret nor confidential by nature. That correspondence relates to the following documents: (i) BVGD’s applications concerning the time-limits for the administrative procedure (Annexes A.21 to A.24, A.31, A.32, A.36, A.38, A.39, A.42, A.57, A.59 and A.60 of the application and, for the sake of completeness, Annexes C.3 and C.10 of the reply); (ii) information relating to the stage reached in the procedure and the factors taken into consideration (Annexes A.9 to A.11, A.15, A.17, A.27 to A.29, A.40, A.43 to A.45, A.48 and A.54 of the application and, for the sake of completeness, Annex C.3 of the reply) and to the confidentiality procedure before the Commission (Annexes A.9, A.16, A.36, A.37, A.39 and A.42 of the application); and (iii) requests for access to BVGD’s documents (Annexes A.25, A.27, A.28, A.36, A.37, A.39, A.42, A.49, A.51 to A.53 and A.56 to A.60 of the application, point 1 of the observations on the letter of 30 June 2008 and, for the sake of completeness, Annex C.5 of the reply). Those exchanges of correspondence also include (i) letters from the Commission asking BVGD for its views on the various documents relating to the SOC arrangements in annex to those letters and BVGD’s requests for clarification regarding those documents (Annexes A.30, A.40, A.41 and A.44 of the application and, for the sake of completeness, Annexes C.5 and C.7 of the reply), (ii) letters from BVGD requesting the Commission to provide information or take a view on the various matters relating to the SOC arrangements (Annexes A.12, A.13, A.17, A.46 and A.50 of the application), and (iii) acknowledgments of receipt of documents (Annexes A.13 and A.34 of the application). Those letters cannot be regarded as secret or confidential by nature, since they do not contain information purely internal to BVGD or the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18) or specific and precise elements of a commercial, competition-related, financial or accounting nature (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 34).
72 The arguments put forward by BVGD in order to prove that the exchanges of correspondence at issue are nonetheless confidential in the present case must also be rejected. As regards the argument that, since most of the letters concerned were drafted by BVGD’s lawyers, disclosure would breach their duty of confidentiality, it must be noted that although account must be taken of the general principle of law that written communications between lawyer and client are confidential, that principle relates only to communications between lawyer and client (see, to that effect, order in Hilti v Commission, paragraph 11). The annexes in question here are letters between the Commission and BVGD’s lawyers, not between BVGD and its lawyers. As regards the argument that disclosure of the letters concerned would reveal the Commission’s strategy, it must be stated that confidential treatment cannot be granted since it has not been adequately shown how De Beers’ knowledge of that strategy could substantially harm BVGD’s commercial interests (see, to that effect, order of the President of the Fifth Chamber of the Court of 23 April 2001 in Case T-77/00 Esat Telecommunications v Commission, not published in the ECR, paragraph 87). BVGD has not argued – still less proved – harm to its commercial interests specifically as a result of De Beers’ knowledge of the Commission’s position.
73 Furthermore, with regard, in particular, to the exchange of correspondence concerning the requests for access to documents by BVGD, and the fixing of time‑limits, even if that exchange could be regarded as confidential, it cannot be precluded from disclosure to De Beers. In the context of its first plea in law in the present case, BVGD refers to breach of its procedural rights, alleging, in particular, (i) breach of its right of access to the documents on which the Commission based its provisional assessment and (ii) the exertion of undue pressure as a result of needlessly short time-limits being set. Disclosure of the letters in question therefore appears necessary for De Beers to exercise its procedural rights, since the latter could not, without knowledge of all of those letters, comment effectively on BVGD’s arguments concerning them.
74 The correspondence for which BVGD requests confidentiality also contains a number of letters setting out its criticisms of the SOC arrangements, De Beers and also the manner in which the Commission dealt with its complaint concerning the SOC arrangements (Annex A.7, also reproduced in Annex A.16 of the application, Annexes A.8, A.14, A.18, A.19, A.33, A.50 and A.51 of the application and, for the sake of completeness, Annexes C.6 and C.8 of the reply). It must be noted in that regard that only facts (or descriptions of facts) may be categorised as confidential by nature, and not assessments of those facts or purely legal considerations, which are regarded, as a rule, as not capable of being withheld from interveners (see, to that effect, orders in Gencor v Commission, paragraph 32, and in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie, paragraph 26). By its criticisms, BVGD clearly undertakes an assessment of (i) the facts relating to the SOC arrangements, (ii) De Beers and (iii) the manner in which the Commission dealt with its complaint, and develops legal arguments in that regard which are not confidential (see, to that effect, the order of the President of the Fourth Chamber (Extended Composition) of the General Court of 26 February 1996 in Case T‑322/94 Union Carbide v Commission, not published in the ECR, paragraph 47).
75 In addition, the Commission’s requests for information to the ‘sightholders’, brokers, diamond bourses and diamond suppliers, in the context of its investigation into the SOC arrangements (Annexes B.1.1 to B.1.4, B.1.6, B.1.7, B.7.1, B.7.2, B.7.5 and B.7.6 of the defence) must be regarded as neither secret nor confidential. According to case‑law, a request for information drafted in general terms which does not disclose any sensitive data is not confidential (order in Deutsche Post v Commission, paragraph 88). In the present case, the information sought in the documents in the above-mentioned annexes relates, essentially, to the SOC arrangements and De Beers. Admittedly, some of the questions in those requests for information are intended to elicit information specific to the person addressed (in relation, in particular, to their status, composition or production), but do not in themselves contain any such information.
76 Further, the arguments relied on by BVGD in order to justify the confidentiality of the documents and information referred to in paragraphs 74 and 75 above cannot succeed. Its argument that to disclose its criticisms of the SOC arrangements and the involvement of some of its members in the investigation into those arrangements could harm the latter’s future commercial relations with De Beers and Alrosa is unfounded, since the names of the members are not referred to in any of the redacted passages and BVGD itself states that it is the sole legal representative under Belgian law to defend the interests and speak on behalf of all polished diamond dealers, regardless of membership. Accordingly, no link may be established between BVGD’s criticisms and any of its members. BVGD has, moreover, nowhere argued that the exclusion of a number of ‘sightholders’ in December 2007 was the result of their cooperation with the Commission during the investigation into the SOC arrangements. Furthermore, as regards more specifically the relations between BVGD’s members and Alrosa, in view of the obligation on the interveners in proceedings to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in the context of their action (see the order in Hynix Semiconductor v Council, paragraph 47, and the case-law cited), Alrosa must not be informed of the data at issue by De Beers.
77 As regards BVGD’s claim of breach of its fiduciary duty, it must be found, first, that this is in no way substantiated and, second, that, even assuming that by that duty BVGD is referring to its need to maintain its relationships of trust with its members by not disclosing confidential information concerning them and by not repeatedly criticising an important commercial partner of those members, this cannot in the present case lead to the passages in question being granted confidential treatment. This is because the redacted passages do not contain any precise information relating to BVGD’s members and BVGD itself has, in the context of its complaint against De Beers – which was not lodged anonymously – and of a number of public statements annexed to De Beers’ observations of 19 June 2008 (see paragraph 6 above), set out its criticisms of the SOC arrangements.
78 As regards the responses to the questions to the rough diamond suppliers, in Annexes B.7.1, B.7.2, B.7.5 and B.7.6 of the defence, it must be found that only a non-confidential version of those questions and responses, produced by the suppliers themselves, was reproduced in those annexes. Since applications for confidentiality must be limited to what is strictly necessary, and may only exceptionally extend to the entirety of an annexed document (see paragraph 31 above), the applications must be dismissed in so far as they relate to those annexes, since the confidentiality applied for is greater than that sought by the undertakings principally concerned, and BVGD has not advanced any reasons in that regard.
79 It follows from all of the foregoing that BVGD’s applications for confidential treatment must be dismissed in their entirety.
The application for a measure of organisation of procedure
80 By letters of 8 February, 29 May and 18 August 2008, BVGD requested the Court to adopt a measure of organisation of procedure so that, were the applications for confidential treatment to be dismissed, De Beers would be prohibited from using, for purposes other than those of the present proceedings, the documents and information disclosed.
81 The measure of organisation of procedure requested is not necessary since, in accordance with the settled case-law referred to in paragraph 76 above, interveners in proceedings are in any event to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in the context of their action.
82 It follows that the application for a measure of organisation of procedure must be dismissed.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The applications of Belgische Vereniging van handelaars in– en uitvoerders geslepen diamant (BVGD) are dismissed.
2. The Registrar shall ensure that a complete version of the procedural documents is served on De Beers and De Beers UK Ltd.
3. A period shall be prescribed within which De Beers and De Beers UK are to submit in writing any additional observations on the information disclosed in accordance with the present order.
4. Costs are reserved.
Luxembourg, 8 May 2012.