ORDER OF THE PRESIDENT
OF THE NINTH CHAMBER OF THE GENERAL COURT
18 May 2015 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑121/14,
PT Pelita Agung Agrindustri, established in Medan (Indonesia), represented by F. Graafsma and J. Cornelis, lawyers,
applicant,
v
Council of the European Union, represented by S. Boelaert, acting as Agent, R.M. Bierwagen and C. Hipp, lawyers,
defendant,
supported by
European Commission, represented by M. França and A. Stobiecka-Kuik, acting as Agents,
and
European Biodiesel Board, established in Brussels (Belgium), represented by O. Prost and M.-S. Dibling, lawyers,
interveners,
APPLICATION for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2).
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 18 February 2014, the applicant, PT Pelita Agung Agrindustri, brought an action for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2) (‘the contested regulation’).
2 By document lodged at the Court Registry on 13 May 2014, the Commission sought leave to intervene in the proceedings in support of the form of order sought by the Council.
3 By document lodged at the Court Registry on 2 June 2014, the European Biodiesel Board (‘the EBB’) sought leave to intervene in the proceedings in support of the form of order sought by the Council.
4 By letters filed at the Court Registry on 9 July and 8 August 2014, the applicant requested that certain documents and information contained in the application, the defence and the reply be subject to confidential treatment vis-à-vis the EBB, should the EBB be granted leave to intervene. The applicant attached a non-confidential version of those documents to its application.
5 By order of the President of the Ninth Chamber of the General Court of 17 July 2014, the Commission was granted leave to intervene in support of the form of order sought by the Council.
6 By order of the President of the Ninth Chamber of the General Court of 22 September 2014, the EBB was granted leave to intervene in support of the form of order sought by the Council. Since, in accordance with Article 116(2) of the Rules of Procedure of the General Court, the applicant had requested confidential treatment of certain information contained in the file, that order temporarily limited the provision of the pleadings to the EBB to a non-confidential version, pending any observations from the EBB on the application for confidential treatment.
7 By letter filed at the Court Registry on 17 October 2014, the EBB challenged the application for confidential treatment.
8 By letter filed on 22 October 2014, the Council requested that certain information contained in the rejoinder be subject to confidential treatment vis-à-vis the EBB. It attached a non-confidential version of the rejoinder to its application.
9 By order of the President of the Ninth Chamber of the General Court of 3 December 2014, it was ordered that, pursuant to Article 116(2) of the Rules of Procedure, since the Council had requested the confidential treatment of certain information in the file, a non-confidential version of those pleadings be provided to the EBB, pending any observations from the EBB on the application for confidential treatment.
The application for confidential treatment
Subject-matter of the application
10 The applications for confidential treatment vis-à-vis the EBB lodged by the applicant and the Council concern information in the application and in the defence, in the reply and in the rejoinder.
11 First, the application for confidentiality brought by the applicant covering the application concerns:
– in paragraph 99, the percentages of crude palm oil (‘CPO’) produced internally, CPO purchased from related suppliers and CPO purchased from unrelated suppliers;
– in paragraph 100, the shareholdings held by common shareholders of the applicant and the related CPO suppliers;
– in paragraphs 112 and 113, information relating to the applicant’s CPO production costs, to the price difference with the ‘market’ price and the price difference with the actual transfer price and the profit margins obtained by the related CPO suppliers;
– in paragraph 121, the percentage used for the purposes of adjusting the CPO costs;
– in paragraph 135, the recalculated injury margins and the detailed calculation relating to underselling.
12 The application also concerns information included in some annexes to the application or the whole of some annexes to it, in particular:
– in Annex A 3, at page 82, the applicant’s actual profit margin for domestic sales of the same general category of products, and, at pages 91 and 92, information about the payment terms between the applicant and one of its customers in the European Union and some information on the quantities sold during the investigation period;
– in Annex A 5, at page 178, the interest rates granted by the applicant’s banks for long-term loans in the Indonesian currency and at page 183, the recalculated margins;
– in Annex A 6, at pages 219 and 220, detailed information with respect to the calculation of the applicant’s dumping margin, including in particular details concerning sales volumes, sales values, production costs, at page 222, details concerning the adjustment that was made for the CPO cost, and, at page 225, details on the applicant’s production quantities, production costs and transfer prices;
– in Annex A 7, at page 240, detailed information on the percentage of CPO purchases from related parties, at page 244, detailed information on the shareholdings of common shareholders of the applicant and related CPO suppliers, and, at pages 245 and 246, some detailed information on the applicant’s CPO production costs and on the difference between those costs and the transfer prices and the ‘market’ prices;
– in Annex A 8, at page 266, the percentage of CPO purchased from related parties, at page 270, first, the detailed information on the shareholdings of common shareholders of the applicant and related CPO suppliers and, second, the list of other products produced by the applicant, at page 271, detailed information on the applicant’s CPO production costs and the difference between those costs, the transfer prices and the ‘market’ price, and, at page 272, the percentage by which the CPO costs have been adjusted;
– the whole of Annex A 17, containing detailed information on the applicant’s actual production cost of CPO;
– the whole of Annex A 27, containing the applicant’s statutes;
– the whole of Annex A 31, containing documents showing that the power of attorney was properly executed by a representative qualified for that purpose.
13 Secondly, the application for confidentiality brought by the applicant covering the defence concerns:
– in paragraphs 92 and 94, the names of related CPO suppliers;
– in paragraph 100, the information concerning the difference between the in-house CPO transfer prices and the transfer prices between related companies;
– in paragraph 104, the percentage by which CPO costs have been adjusted.
14 Thirdly, the application for confidentiality brought by the applicant covering the reply concerns:
– in paragraphs 47 and 50, the profit margins obtained by the related CPO suppliers;
– in paragraph 57, the profit margins obtained by the related CPO suppliers.
15 Fourthly, the application for confidentiality brought by the Council covering the rejoinder concerns certain information on the applicant’s profit margins in paragraph 56.
The merits of the applications for confidentiality
Considerations of principle
16 The applications for confidential treatment have been submitted on the basis of the second sentence of Article 116(2) of the Rules of Procedure, which provides that ‘[t]he intervener shall receive a copy of every document served on the parties’, but that ‘[t]he President may, however, on application by one of the parties, omit secret or confidential documents’.
17 That provision lays down the principle that interveners are to receive a copy of every document served on the 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 obligation of communication (see order of 24 April 2012 in Embraer and Others v Commission, T‑75/10, EU:T:2012:198, paragraph 14 and the case-law cited).
18 In that regard, in the first place, the Instructions to the Registrar of the General Court, as amended on 17 May 2010, (OJ 2010 L 170, p. 53) provide, in Article 6(2), that an application for confidential treatment must be made in accordance with the provisions of the Practice Directions to parties, from which it is clear that the party who makes an application for confidential treatment is required to specify the documents or information covered and to indicate, with sufficient precision, the reasons why they are claimed to be confidential (see order of 3 May 2011 in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, T‑384/09, EU:T:2011:192, paragraph 25 and the case-law cited).
19 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 confidentiality of documents and information for which the application for confidential treatment is disputed (order of 22 February 2005 in Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 36).
20 The intervener’s challenge to the application for confidentiality must relate to precise information in the procedural documents which has been redacted and must indicate the reasons for which the intervener claims that confidentiality with regard to that information should be refused. Accordingly, a request for confidential treatment must be allowed in so far as it concerns information which has not been disputed by the intervener, or which the latter has not disputed expressly and precisely (see order of 5 October 2012 in Orange v Commission, T‑258/10, EU:T:2012:524, paragraph 21 and the case-law cited).
21 In the third place, where an application made under the second sentence of Article 116(2) of the Rules of Procedure is disputed, the President has the task first of all of examining whether each of the documents and pieces of information whose confidentiality is disputed, and for which an application for confidential treatment was brought, are of a secret or confidential nature (orders in Hynix Semiconductor v Council, paragraph 19 above, EU:T:2005:57, paragraph 38, and Orange v Commission, paragraph 20 above, EU:T:2012:524, paragraph 22).
22 The requirement to which the applicant is subject to state reasons for the application for confidentiality is to be assessed in the light of the secret or confidential nature of each document and piece of information covered. Indeed, a distinction may be drawn between, first, information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, second, other documents or information which may be secret or confidential, for a reason that is for the applicant to furnish (orders in Hynix Semiconductor v Council, paragraph 19 above, EU:T:2005:57, paragraph 34, and Orange v Commission, paragraph 20 above, EU:T:2012:524, paragraph 23).
23 Accordingly, 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 18 November 2008 in Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 25, and 14 October 2009 in vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, EU:T:2009:402, paragraph 17).
24 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 19 above, EU:T:2005:57, paragraph 42, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 23 above, EU:T:2009:402, paragraph 24).
25 Accordingly, where confidential treatment is requested in the interests of the applicant, the President weighs in the balance, 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 Hynix Semiconductor v Council, paragraph 19 above, EU:T:2005:57, paragraph 44, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 23 above, EU:T:2009:402, paragraph 25).
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 he has decided to place on the file appear to be necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (order in Hynix Semiconductor v Council, paragraph 19 above, EU:T:2005:57, paragraph 46).
27 The applications for confidential treatment made in the present case must be examined in the light of those principles.
Information for which confidentiality has been requested and against which no objection has been made
28 According to the principles set out in paragraphs 18 and 19 above, the applicant’s application for confidential treatment must be granted in so far as it covers the information included in paragraphs 99, 112, 113, 121 and 135 of the application, as described in paragraph 11 above, as well as the whole of or certain information included in Annexes A 3, A 5, A 6, A 7, A 8, A 17, A 27 and A 31 of the application, as specified in paragraph 12 above. The EBB has not, in fact, made any objections against the application for confidentiality in relation to them.
29 The same is true of the confidential information identified by the applicant concerning paragraphs 100 and 104 of the defence, as described in paragraph 13 above, of the information in paragraphs 47, 50 and 57 of the reply, identified in paragraph 14 above, and of the information in paragraph 56 of the rejoinder, set out in paragraph 15 above. Since the application for confidentiality in relation to them has not been challenged, it must be granted.
Information for which confidentiality has been requested and against which an objection has been made
– Information identified in the application
30 First, as regards the application for confidential treatment relating to the applicant’s shareholding held by the shareholders common to the applicant and the related CPO suppliers in paragraph 100 of the application, the applicant justifies this by claiming that it concerns information which is confidential by its very nature.
31 In that regard, notwithstanding the brief nature of the reasoning provided by the applicant, no information has been provided in the course of the present proceedings indicating that the information referred to by the applicant, involving in particular shareholdings held by private persons in some companies, is not confidential by its very nature.
32 However, as the EBB contends, the redaction of that information, as proposed by the applicant in the non-confidential version of the application submitted by it, means that most of the paragraph at issue has been redacted so that it does not allow for a proper understanding of its argument that the applicant and its related CPO suppliers constitute an economic entity.
33 Therefore, in the balancing of interests involved, in accordance with the case-law cited in paragraphs 24 to 26 above, the application for confidential treatment as regards the information at issue is granted only in so far as it concerns the names of the private persons concerned, which may be replaced by initials or abstract letters, and the exact shareholding rates, which may be replaced by relevant ranges that deviate therefrom at most by 10%. As for the names of the related companies in the first column of the table in paragraph 100 of the application, they should not be considered to be confidential for the reasons set out in paragraphs 36 and 37 below, which concern the same information.
34 Secondly, as regards the redacted information in paragraph 114 of the non-confidential version of the application submitted by the applicant as an annex to its application for confidential treatment of that document and covering the threshold at which the CPO transfer prices are considered not to be affected by the differential export tax system, the EBB is right to claim that the application for confidential treatment itself makes no reference to this information, and, therefore, offers no evidence in support of the confidentiality of the redacted information.
35 Therefore, in accordance with the case-law cited in paragraph 18 above, in so far as the applicant sought to bring an application for confidential treatment in relation to certain information in paragraph 114 of the application, it must be dismissed.
– Information identified in the defence
36 As regards the application for confidential treatment of the names of the related companies supplying CPO to the applicant, in paragraphs 92 and 94 of the defence, the EBB is right to claim that the non-confidential version of that document provided by the applicant has not redacted that information in paragraph 92, but only in paragraph 94, although the application for confidential treatment refers to two paragraphs of that defence.
37 As that information has been provided to the EBB, the application for confidential treatment in respect of it is not justified and must be dismissed.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The applications for confidential treatment, vis-à-vis the European Biodiesel Board, are granted for the following information:
– the redacted information in paragraphs 99, 112, 113, 121 and 135 of the application;
– the redacted information in Annexes A 3, A 5, A 6, A 7, A 8, A 17, A 27 and A 31 of the application;
– the information relating to the shareholdings held by the shareholders common to PT Pelita Agung Agrindustri and the related CPO suppliers in paragraph 100 of the application, solely in so far as they concern the names of the private persons concerned, which must be replaced by initials or abstract letters, and the exact shareholding rates, which must be replaced by relevant ranges that deviate therefrom at most by 10%;
– the redacted information in paragraphs 100 and 104 of the defence;
– the redacted information in paragraphs 47, 50 and 57 of the reply;
– the redacted information in paragraph 56 of the rejoinder.
2. The applications for confidential treatment are dismissed as to the remainder.
3. A non-confidential version of the procedural documents which comply with points 1 and 2 of the operative part of the present order, to be sent by PT Pelita Agung Agrindustri within the period set by the Registrar, shall be served on the European Biodiesel Board by the Registrar.
4. The costs are reserved.
Luxembourg, 18 May 2015.