ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
8 May 2012 (*)
(Confidentiality – Challenge)
In Case T‑108/07,
Diamanthandel A. Spira BVBA, established in Antwerp (Belgium), represented by Y. van Gerven, F. Louis, A. Vallery and J. Bourgeois, 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 Diamanthandel A. Spira BVBA’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/38.826/B-2 – Spira/De Beers/DTC Supplier of Choice),
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 8 April 2007, the applicant, Diamanthandel A. Spira BVBA (‘Spira’), 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/38.826/B-2 – Spira/De Beers/DTC/Supplier of Choice) (‘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, Spira 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 15 April 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 letter of 22 April 2008, De Beers applied for a measure of organisation of procedure permitting it to use a letter of 13 November 2007, from the Commission to Spira, in the context of proceedings between De Beers and Spira in the Belgian courts. Spira lodged its observations on that application on 2 May 2008. On 15 May 2008, the application for a measure of organisation of procedure was dismissed.
6 By letter of 29 April 2008, Spira applied for confidential treatment vis‑à-vis De Beers of certain information in the defence and the annexes thereto.
7 By letters of 2 May and 2 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 Spira 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 also objected to the application for a measure of organisation of procedure lodged by Spira on 8 February 2008.
8 By letter of 18 June 2008, Spira 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.
9 On 18 June 2008, Spira also sent the Court a non-confidential version of its application for an extension of the time-limit for lodging the reply.
10 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.
11 By letter of 4 July 2008, De Beers contended that the Commission’s letter of 10 June 2008 should not be granted confidential treatment. In the alternative, it requested that Spira be directed to give further and better particulars of its application for confidential treatment and that De Beers be given a further opportunity to comment on such particulars.
12 By letter of 18 November 2008, Spira applied for confidential treatment vis-à-vis De Beers of certain information in the reply and the annexes thereto.
13 By letter of 20 May 2009, Spira applied for confidential treatment vis-à-vis De Beers of certain information in the rejoinder and the annexes thereto.
14 By letter of 13 October 2010, Spira applied for confidential treatment vis-à-vis De Beers of certain information in the Commission’s reply of 23 August 2010 to the question posed by the Court on 22 July 2010 with regard to the consequences of the judgment in Case C-441/07 P Commission v Alrosa [2010] ECR I-5949.
15 By letters of 18 December 2008, 24 June 2009 and 12 November 2010, De Beers contended that none of the passages redacted in the non‑confidential versions of the reply and the rejoinder and the annexes thereto and of the Commission’s reply to the question from the Court, communicated to De Beers, should be granted confidential treatment. In the alternative, De Beers requested that Spira 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.
16 Non-confidential versions of the various procedural documents, prepared by Spira, were transmitted to De Beers.
The applications for confidential treatment
Subject-matter of the applications for confidentiality
17 Spira 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, the Commission’s reply of 23 August 2010 to the question from the Court, and the annexes to those procedural documents.
18 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:
– titles II.7, II.9.3, II.10.2, II.10.5, V.3.3.1, V.3.4.1, V.3.5, V.3.5.1, V.3.6.2, V.3.6.3, and the redacted information in (i) titles V.3.3, V.3.6 and V.3.6.1, (ii) the table of contents, (iii) paragraphs 61 to 63, 67, 71 to 78, 79 to 85, 87 to 89, 92 to 94, 101, 107, 111, 114, 116, 124, 126, 135, 138, 139, 148, 158 to 160, 168, 172 to 174, 183, 186, 192, 194, 195, 198, 200, 202, 209, 212, 216, 219 to 238, 242 and 243 and (iv) footnotes Nos 23, 33, 45, 54, 62 to 65, 68 to 71, 74 to 76, 80 to 82, 90, 96, 99, 110, 117, 124, 125, 127, 128, 135 to 140, 142 to 145, 147 to 151 and 154 to 157;
– the redacted information in Annexes A.2, A.13, A.27, A.33 and A.48;
– Annexes A.1, A.7, A.9.4, A.16, A.21, A.23 to A.26, A.29 to A.31, A.34 to A.40, A.41.1 to A.41.4, A.44, A.46 and A.47 in their entirety, including reference to them in the list of annexes.
19 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 paragraphs 3 to 5, 18, 22, 30, 35, 36, 39, 43 to 45, 55 to 57, 60, 66, 67, 69, 75, 76, 78 to 80, 82, 83, 85, 86, 90 to 92, 94, 97, 102 to 107, 110, 128, 130 and 132 to 135 and in footnotes Nos 3, 6, 25, 36, 38, 41, 42, 48, 50 to 55, 63, 65, 79, 80, 82, 84, 85, 88, 89, 91, 93, 94, 99, 101, 102, 105, 107, 109, 111 to 114, 116, 119, 126, 128, 129, 131, 133, 134, 136, 137, 141 to 146, 150, 151, 153, 154, 172, 177, 183 to 186, 188, 189 and 191;
– Annexes B.7, B.8.1, B.8.2, B.8.5 and B.8.6 in their entirety, including reference to them in the list of annexes.
20 As regards, third, the reply and the annexes thereto, the application for confidential treatment vis-à-vis De Beers relates to the following information:
– titles II.3.6.1 (a) to (d), and the redacted information in paragraphs 29, 43, 45, 50, 52 to 54, 56, 61 to 70, 73, 80, 81, 109, 118, 131, 137, 174, 175, 184, 186, 187, 194, 202 to 205, 208 to 219, 221 to 229, 233, 245 and 250 to 252 and in footnotes Nos 14, 17, 23, 26, 32, 36, 42, 43, 45, 52, 56, 59 to 61, 63, 67, 68, 70, 77, 123, 134, 161, 165, 174, 185, 193 and 225;
– Annexes C.9, C.11, C.12, C.13.1, C.13.2, C.14.1, C.14.2, C.15, C.17, C.18, C.21, C.22.1 to C.22.3 and C.23 in their entirety, including reference to them in the list of annexes.
21 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 5, 16, 17, 19, 23, 32, 33, 35, 36, 44, 45, 49 to 51, 53, 55 to 59, 63 to 67, 69, 74, 75 and 82 and in footnotes Nos 24, 33, 38, 54, 84, 89, 96, 100, 110, 112, 124, 126, 128, 129, 131, 133, 138, 157, 158 and 172;
– Annex D.1 in its entirety, including reference thereto in the list of annexes.
22 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.
23 As regards, sixth, the Commission’s reply of 23 August 2010 to the question from the Court, the application for confidential treatment vis-à-vis De Beers relates to the passages setting out the decision contested in the present case and also that contested in Case T-354/08.
24 In addition, Spira transmitted to the Court confidential and non‑confidential versions of its applications for confidential treatment of 8 February, 29 April, 18 June and 18 November 2008 and of 20 May 2009. It also communicated to the Court on 18 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
25 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’.
26 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).
27 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 – which has not been amended substantially on the point since – that an application for confidential treatment must be made in accordance with the provisions of the Practice Directions to parties (points 74 to 77, which have not been amended substantially since then either).
28 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.
29 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.
30 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.
31 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).
32 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).
33 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 II-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).
34 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).
35 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).
36 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).
37 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).
38 Where confidential treatment is requested in the interests of the applicant 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).
39 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).
40 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).
41 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
42 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, the defence, the reply, the rejoinder and the letter of 10 June 2008 cannot be taken into consideration.
The redacted information to which De Beers has not objected
43 The application for confidential treatment of the complaint lodged by Spira on 25 September 2003 (Annex A.2 of the application) has not been disputed expressly and precisely by De Beers, inasmuch as the application seeks to restrict disclosure to De Beers solely to the non‑confidential version of that complaint notified to it by the Commission during the administrative procedure.
44 The application for confidential treatment in part of that complaint must therefore be upheld.
The redacted information to which De Beers has objected
45 De Beers has disputed expressly and precisely all of Spira’s remaining applications for confidentiality.
46 First of all, it must be found that Spira’s application for confidential treatment of its application for an extension of the time‑limit for lodging the reply (see paragraphs 9 and 24 above) satisfies neither the requirement to make the application by a separate document, referred to in paragraph 28 above, nor the requirement to state reasons, referred to in paragraphs 30 and 31 above. Spira 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 8 and 22 above) does not satisfy the requirement to state reasons either, since, in the non-confidential version of that application, Spira 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, the applications for confidential treatment with regard to certain documents and information in the originating application, the defence, the reply and the rejoinder do not satisfy the requirement to state reasons referred to in paragraphs 30 and 31 above concerning the need accurately to identify the particulars or passages to be excluded. As regards those documents and information, the application for confidential treatment does not correspond to the non-confidential version of the document in question. Thus, Spira applies for confidential treatment of paragraph 29 and footnote No 23 of the reply and footnote No 24 of the rejoinder without redacting them in whole or in part in the non-confidential versions of the reply and the rejoinder. Conversely, Spira redacted footnote No 131 of the application, footnotes Nos 15 and 110 of the defence, paragraph 140 and footnotes Nos 55, 103, 105, 148 and 178 of the reply, and also paragraphs 84 and 85, footnote No 177 and Annex D.5 of the rejoinder, without referring to them in the relevant applications for confidential treatment.
49 None of the documents and information referred to in paragraphs 46 to 48 above can therefore be granted confidential treatment.
50 As regards the applications for confidential treatment of the other information in the application, the defence, the reply and the rejoinder, and also of the Commission’s reply of 23 August 2010 to the question from the Court, it must be found that, while those applications for confidential treatment cannot, in principle, be dismissed for failure to state reasons and lack of precision, 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).
51 In the present case, when the documents and information covered by those applications for confidentiality are examined individually, it is apparent that most of them are neither secret nor confidential.
52 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).
53 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 A.46 and footnote No 147 of the originating application), (ii) Alrosa’s annual report for the year 2006 (data from which is referred to in the third sentence of footnote No 128 of the rejoinder), and (iii) articles published on the internet relating to Alrosa (Annex C.21 and footnote No 174 of the reply) and to the relations between Alrosa and Lazare Kaplan (Annexes C.22.1 and C.22.2 of the reply reproducing the same article). The same principle also applies to the following: (i) the provision of a national regulation, namely, the lifting of the export quotas by Russia on 11 January 2007, which the Commission itself notes is public information (footnote No 107 of the defence); (ii) the information from the judgment in Case T‑170/06 Alrosa v Commission [2007] ECR II-2601, in particular paragraph 116 thereof (footnote No 45 of the reply; see also paragraph 194 of the reply referring to Alrosa’s position in the context of the dispute giving rise to that judgment), reproducing an extract of Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 — De Beers), a summary of which is published in the Official Journal (OJ 2006 L 205, p. 24) and a full non-confidential version of which is available on the Commission’s website (see also paragraph 53 of the reply reproducing an extract of that decision); (iii) the rules of procedure of the Arbitration Committee of the Federation of Belgian Diamond Bourses (the Federatie der Belgische Diamantbeurzen), available on the internet (Annex C.13.2 of the reply); and, lastly, (iv) the statutes of that federation (Annex C.13.1 and footnote No 61 of the reply), which, like the statutes of any legal person in Belgium, is published in the Moniteur belge.
54 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).
55 This clearly applies, in the present case, to all the data concerning De Beers, such as its market shares (footnote No 137 of the defence) or its purchases from Alrosa (paragraph 222 and footnote No 143 of the application), all the more so when De Beers is the author of the information at issue (paragraphs 103 and 104 and footnote No 144 of the defence, setting out De Beers’ responses to the Commission’s supplementary request for information dated 9 October 2007).
56 Further examples of the above include the various information on the SOC system of distribution set up by De Beers, in particular the information 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.34 of the application). Information concerning the SOC arrangements also includes that relating to (i) the sightholders making up the SOC arrangements (extract from the directory of sightholders for one company, found in Annex C.22.3 and also reproduced in Annex C.22.2 of the reply; establishment of certain sightholders referred to in footnote No 187 of the reply; and the names of two sightholders belonging to the category ‘rough dealer/preparer’ in footnote No 149 of the application) and to (ii) the questionnaire sent to them (explanatory notes drawn up by De Beers’ broker, reproduced in Annex A.9.4 and in the annex to Annex A.40 of the application and referred to in footnotes Nos 33, 135 and 137 of the application). In addition, as a result, in particular, of that questionnaire and the fact that several natural persons in the De Beers group are members of the diamond bourses, De Beers must also be regarded as aware of the fact that certain individuals of companies which are sightholders are members of diamond bourses and even hold positions of responsibility within them (list of sightholders also members of diamond bourses, in Annex C.11 of the reply and referred to in paragraph 65 and footnote No 59 of the reply). Lastly, since De Beers is present inside the diamond bourses it is aware of their internal regulations, and the general regulations of the Antwerp diamond bourse (Annex C.12 and footnote No 60 of the reply) must therefore be regarded as information known to it.
57 De Beers must also be regarded as aware of Alrosa’s statement made in the context of its bond offering of 18 January 2005 (paragraph 43, footnote No 32 and Annex C.9 of the reply; paragraph 50 and footnote No 84 of the rejoinder); that offering had been made following a statement of objections sent to Alrosa and De Beers concerning the De Beers-Alrosa Trade Agreement concluded on 17 December 2001 (the ‘De Beers-Alrosa Agreement’).
58 De Beers must also be regarded as aware of certain information relating to Spira’s complaint giving rise to the present dispute, in particular Spira’s identity.
59 As regards the complainant’s identity in the present case, it must be noted that this is known to De Beers, since it is referred to in the list of annexes to the application, because the title of Annex A.2 ‘Complaint of Spira against the SOC arrangement dated 25 September 2003’ has not been redacted. In any event, the present action, whereby Spira openly displays its opposition to the SOC system set up by De Beers, stating moreover in a non-confidential passage that it had lodged a complaint against the SOC arrangements in July 2002 (paragraph 43 and Annex A.14 of the application), means that all interest is lost in the application for confidential treatment of Spira’s status as a complainant (see, to that effect, order of the President of the Court of 26 November 2010 in Case T-484/10 R Fenosa v Commission, not published in the ECR, paragraph 23).
60 As regards the content of the complaint, it is apparent from the file that the Commission communicated to De Beers a non-confidential version of that complaint drawn up by Spira (see paragraph 43 above), so that the request for additional confidential treatment of two paragraphs of that complaint (paragraphs 125 and 126 of Annex A.2 of the application) of which De Beers is already aware must be dismissed.
61 De Beers must also be regarded as having been made aware of Kluger Zalc Diamonds NV’s complaint (Annex A.41.1 of the application; see also Annexes A.41.2 to A.41.4 of the application containing the subsequent letters sent by that complainant to the Commission and also the references to that complaint and those letters in footnotes Nos 90 and 145 of the application and footnote No 67 of the reply). In the context of a number of steps made public (open letter to diamond traders and the management of diamond organisations and bourses, letter to the Commission published on a specialist website), one of the executives of Kluger Zalc Diamonds NV refers to that complaint directed against the SOC system and the main objections to it.
62 The principle in question also applies to the rejection of Spira’s complaint against the De Beers-Alrosa Agreement (rejection referred to in title II.9.3 and paragraph 83 of the application; see also paragraph 67 below). The Commission stated in its letter of 30 June 2008 (see paragraph 10 above) that, in accordance with consistent practice, the parties whose conduct is the subject-matter of a complaint are informed that the complaint has been rejected.
63 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).
64 In the present case, this applies, for example, to the following: (i) the content of paragraph 208 of the reply, which represents the summary of one of the Commission’s arguments as set out in paragraph 93 and footnotes Nos 130 and 138 of the defence for which confidentiality has not been sought; (ii) paragraph 184 of the reply, which reproduces an extract from the defence in Case T-170/06 in Annex C.2 of the reply in the present case for which confidentiality has not been sought either; (iii) footnote No 123 of the reply, in which the heading of a subsection of the defence is redacted which has not been redacted in that pleading; or (iv) the redacted reference to Annex A.33 of the application in paragraph 110 of the defence seeking to conceal one of the sources of the contention set out in the remainder of the paragraph, whereas the passage in question in that annex is not redacted. The same is also true of (i) a number of annexes of the application, completely redacted in the non-confidential version of the application, whose wording is set out in part in the body of the application (see, in particular, paragraphs 96 to 98 setting out the content of Annex A.1 of the application and the non-confidential part of paragraph 183 and paragraph 185 referring to aspects of Annex A.40 of the application), and (ii) of the same annex completely redacted in the non-confidential version of the reply (Annex C.18 of the reply) yet only partly so in the non-confidential version of the application (Annex A.33 of the application). Lastly, reference should be made to paragraph 69 and footnote No 138 of the rejoinder in which the names of the rough diamond suppliers are redacted, whereas they are mentioned in – unredacted – footnote No 142 of the rejoinder.
65 Fourth, information which has been secret or confidential but is five or more years old is neither secret nor confidential and must therefore be treated as historic unless, by way of exception, the applicant demonstrates that, despite their age, those data still constitute essential elements of its commercial position or of that of the third person concerned (orders in Glaxo Wellcome v Commission, paragraph 39, and Hynix Semiconductor v Council, paragraph 60).
66 In the present case, the figures in Annex A.13 of the application – comprising Spira’s reply to a Commission request for information and relating to Spira’s purchases and sales of diamonds between 1998 and 2000 – for which confidentiality has been sought must be treated as historic. Spira has moreover not argued that that information still constitutes essential elements of its commercial position, since it has merely referred to that information as a business secret.
67 The principle in question also applies to all the information relating to (i) the complaint lodged by Spira on 25 September 2003 against the De Beers-Alrosa Agreement (title II.7, paragraphs 61 to 63, 79 to 82, 84, 116, 126, 135, 138, 139, 168, 192 and 209, footnotes Nos 54 and 69 to 71, Annexes A.21, A.24 to A.27 and A.44 of the application; paragraph 5 of the defence), (ii) Spira’s comments on the commitments offered by De Beers following the statement of objections concerning that agreement and approved by the Commission in Decision 2006/520 (paragraphs 71 to 77 and 85, footnotes Nos 62 to 65, 68 and 155, and Annexes A.23, A.33 and A.47 of the application; paragraph 22 and footnote No 25 of the defence; and paragraphs 50, 194 and footnote No 225 of the reply) and (iii) the complaint against the Commission filed with the European Ombudsman following that decision (paragraph 78 and Annex A.33 of the application). Even though that information, and in particular Spira’s identity, remained confidential throughout the administrative procedure and the procedure before the Court in relation to the De Beers-Alrosa Agreement, those procedures have been concluded definitively since 29 June 2010, the date of the judgment of the Court of Justice in Commission v Alrosa which set aside the General Court’s judgment in Alrosa v Commission, which had itself annulled Decision 2006/520, and dismissed Alrosa’s action before the General Court. It follows from those particular circumstances that the complaints and comments referred to above must be treated as historic, all the more so since Spira has not shown that that they still constitute essential elements of its commercial position.
68 Spira submits that disclosure of the above criticisms could give rise to retaliatory measures from companies constituting vital sources of supplies for it. However, even if De Beers were to cease supplying rough diamonds to Spira as the latter invokes, Spira has not adduced any evidence to substantiate its fears of hostile conduct from other rough diamond suppliers (see, to that effect, order in vwd Vereinigte Wirtschaftsdienste v Commission, paragraphs 74 to 76), all the more so since, given the interveners’ obligation to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in their action (see order in Hynix Semiconductor v Council, paragraph 47, and case-law cited), those other companies must not be informed by De Beers of the complaints and arguments at issue.
69 Furthermore, since all the applications seeking to keep Spira’s identity as a complainant confidential have been dismissed, those applications for confidential treatment of the paragraphs of the pleadings and annexes referring to Spira’s steps to preserve its anonymity must also be dismissed (title II.10.5, paragraphs 92 to 94 and 126, footnotes Nos 80 to 82, and Annexes A.35 to A.39 of the application).
70 Lastly, the reference in paragraph 67 of the application to Spira’s provision of precise information to the Commission concerning the amount of information and documents available at De Beers’ premises after the 2005 SOC selection process must also be treated as historic. The information and documents in question were at the premises referred to on the date on which the precise information in question was provided in 2005, and since the investigation of the SOC arrangements – in the course of which the Commission could have carried out on-the-spot checks – has been concluded, the reference in paragraph 67 of the application constitutes historic information, which, moreover, Spira has not shown still constitutes an essential element of its commercial position.
71 Fifth, information which is not by nature business secrets or confidential data, and which Spira has not shown as amounting to such, must be regarded as neither secret nor confidential (see paragraph 35 above). This applies to all the information from the economic report commissioned by Spira, produced by van Dijk & Verboven in May 2006, entitled ‘Competitive Assessment of the De Beers’ Supplier of Choice System after Termination of the ALROSA Trading Agreement’ (report reproduced in Annex A.7 of the application; letter accompanying the report reproduced in Annex A.31 of the application and various references to the report in (i) paragraphs 89, 124 and 168, footnotes Nos 23, 76, 124, 125 and 154, and Annex A.33 of the application, (ii) paragraph 128 and footnote No 183 of the defence, (iii) paragraph 73, footnote No 70, and Annex C.15 of the reply, and (iv) footnote No 38 of the rejoinder). That report forms part of Spira’s arguments, since it goes to show the anti-competitive nature of the SOC arrangements (see, to that effect, order of the President of the Fourth Chamber (Extended Composition) of the Court of 26 February 1996 in Case T-322/94 Union Carbide v Commission, not published in the ECR, paragraph 46; see also paragraph 83 below). Moreover, that report refers only to information from public documents. Lastly, the argument relied on to justify the confidentiality of that report, based on the fear that De Beers may benefit from the report while it was Spira which paid those who produced it, is irrelevant to the assessment of whether a document is confidential.
72 The following must also be regarded as neither secret nor confidential by nature: (i) the initial decision rejecting Spira’s complaint (Annex A.1 of the application), contested in the present case, and the supplementary rejection decision (Annex D.1 of the rejoinder); (ii) the ‘Case orientation’ letter of 29 March 2006 (Annex A.29 of the application) and Spira’s observations on that letter (Annex A.30 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 2004 L 123, p. 18) (Annex A.34 of the application and Annex B.7 of the defence, the annexes of which are also reproduced in Annexes B.8.1, B.8.2, B.8.5 and B.8.6 of the defence), and Spira’s observations on one of those letters (its observations of 29 September 2006 on the letter of 4 August 2006 reproduced in Annex A.40 of the application).
73 Reference must also be made in that context 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 (titles II.10.2, V.3.3, V.3.3.1, V.3.4.1, V.3.6, V.3.6.1, V.3.6.2 and V.3.6.3, paragraphs 87, 88, 101, 107, 111, 114, 116, 138, 139, 148, 158 to 160, 172 to 174, 183, 186, 194, 195, 198, 200, 202, 212, 219, 220, 229, 233 to 235, 237, 238, 242 and 243, footnotes Nos 74, 75, 96, 99, 110, 117, 127, 128, 136, 138 to 140, 142, 144, 148, 150, 151, 156 and 157, and Annex A.33 of the originating application; paragraphs 3 to 5, 30, 36, 39, 44, 55 to 57, 60, 66, 67, 69, 76, 78, 79, 85, 86, 92, 97, 102, 105 to 107, 130, 132, 133 and 135, footnotes Nos 3, 6, 36, 38, 41, 48, 51, 53, 55, 63, 65, 79, 84, 85, 88, 89, 91, 93, 94, 99, 101, 102, 105, 109, 111, 113, 116, 119, 126, 128, 129, 131, 133, 134, 136, 141 to 143, 145, 146, 150, 151, 153, 154, 172, 177, 184 to 186, 188, 189 and 191 of the defence; paragraphs 52, 80, 137, 174, 175 and 222 to 227, and footnotes Nos 14, 17, 26, 32, 36, 42, 43, 52, 56, 68, 77, 134, 161, 165, 185 and 193 of the reply; paragraphs 5, 16, 17, 35, 44, 45, 51, 53, 55 to 59, 63, 69, 74 and 82, and footnotes Nos 24, 38, 54, 89, 96, 100, 112, 126, 128, 131, 138, 157 and 158 of the rejoinder). Reference should also be made to the passages of the reply of 23 August 2010 to the question from the Court, reproducing the initial and supplementary rejection decisions.
74 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 Spira or to the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18) and Spira does not claim that they contain business secrets of a commercial, competition-related, financial or accounting nature (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 34).
75 The same principle applies to the exchange of correspondence between Spira and the Commission before and after the contested decision was adopted. That correspondence relates to (i) an application for an extension of a time‑limit for Spira (Annex C.15 of the reply), (ii) a letter from the Commission of 14 March 2008 requesting Spira to submit comments on Alrosa’s replies to the Commission’s request for information, a non-confidential version of those replies being annexed to that letter (Annex C.23 of the reply and footnote No 129 of the rejoinder) and (iii) a number of letters setting out Spira’s criticisms of the SOC arrangements and of De Beers (Annex A.44 of the application reproduced in Annex C.14.2 of the reply; Annex C.14.1, paragraph 118 and footnote No 63 of the reply; for the sake of completeness, Annex C.18 of the reply). The same also applies to a number of the Commission’s statements and positions affecting Spira (paragraphs 18, 22, 30, 43 and 128 and footnote No 42 of the defence).
76 Spira relies on a number of arguments in order to justify confidentiality for the documents and information referred to in paragraphs 72, 73 and 75 above. Before examining them, it must be noted, first of all, that most of those applications for confidential treatment relate to annexed documents in their entirety and that, since an application for confidential treatment may only exceptionally extend to the entirety of an annexed document (see paragraph 29 above), confidential treatment cannot be granted in respect thereof on the basis of general and vague reasoning (order of the President of the Eighth Chamber of the Court of 2 March 2010 in Case T-336/07 Telefónica and Telefónica de España v Commission, not published in the ECR, paragraph 73).
77 In the present case, Spira submits, first, that its complaint was rejected on the basis of lack of Community interest. It is sufficient to note in that regard that that aspect is irrelevant to the assessment of whether a document or piece of information is confidential.
78 Spira submits, second, that it is likely that the documents and information at issue would be used before the Belgian courts, on the basis of the previous conduct of De Beers, which – Spira claims – used documents relating to the present proceedings in the course of other proceedings despite the Court’s objection. That argument cannot succeed. Reference should be made to (i) the settled case-law according to which the parties and interveners in proceedings are to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in their action (see paragraph 68 above) and (ii) Case T-353/94 Postbank v Commission [1996] ECR II‑921 which stated that once documents from the administrative procedure before the Commission are produced in national legal proceedings or where they are requested to be produced, there is a presumption that the national courts will guarantee the protection of confidential information (paragraph 69). Accordingly, since the general rule is that interveners are to receive a copy of every pleading served on the parties, the fact that the documents at issue may be used against Spira in the context of other proceedings before a national court cannot preclude them from being disclosed to De Beers (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 29).
79 Spira submits, third, 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, Spira 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.
80 Although Spira submits, fourth, that all its exchanges with the Commission 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, it is sufficient 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).
81 In any event, even assuming that Spira has established that the documents and information referred to in paragraphs 72 and 73 above are secret or confidential, once 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 Spira’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 Spira refers on numerous occasions in order to substantiate its arguments (see paragraphs 38 and 40 above).
82 Lastly, the passages of the pleadings setting out Spira’s complaints and arguments and the Commission’s responses to those complaints and arguments must not be regarded as confidential by nature either (titles V.3.4.1, V.3.5 and V.3.5.1, paragraphs 101, 111, 126, 135, 139, 172 to 174, 216, 219, 221 to 228, 230 to 234, 236 and 243 and Annex A.48 of the originating application; paragraphs 35, 36, 39, 44, 45, 75, 80, 82, 83, 85, 86, 90 to 92, 94, 130 and 132 to 135, and footnotes Nos 36, 48, 50, 52, 54, 80, 82, 84, 85, 105, 107, 112, 114, 119, 128 and 137 of the defence; paragraphs 45, 54, 56, 61 to 70, 73, 80, 81, 131, 174, 175, 184, 186, 187, 194, 202 to 205, 208 to 219, 221 to 229, 233 and 250 to 252, and footnotes Nos 68, 70 and 193 of the reply; paragraphs 16, 19, 23, 32, 33, 35, 36, 44, 45, 49, 50, 53, 55 to 59, 63 to 67, 69, 74, 75 and 82, and footnotes Nos 24, 33, 38, 84, 100, 110, 124, 128, 131, 133 and 172 of the rejoinder).
83 Without expressly distinguishing that category of information, Spira requests confidential treatment of a number of paragraphs of its pleadings and those of the Commission, in which assessments of the facts relating to the SOC arrangements and De Beers are set out and legal arguments developed in that regard. 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). In addition, since Spira does not expressly distinguish that category of information, it does not adduce any argument specifically to show that that information is nonetheless confidential in the present case.
84 In addition, it must be noted that the applications for confidentiality referred to in paragraph 82 above relate to over 100 paragraphs of the pleadings of the main parties, with the result that in some instances whole subsections of Spira’s or the Commission’s arguments are redacted, including the titles of those subsections. Thus, Parts V.3.3.1, V.3.6.2 and V.3.6.3 of the application, Parts II.3.6.1 and II.3.6.2 of the reply and Part 3.4.3, subparagraph (ii), of the rejoinder are almost entirely redacted in the non-confidential version of those pleadings and that some of Spira’s complaints are purely and simply omitted. Such omissions clearly breach point 75 of the Practice Directions to parties (see paragraph 29 above), and prejudice the procedural rights of De Beers, which would not even be informed of certain complaints directed against the contested decision if the relevant applications for confidential treatment were upheld.
85 On the other hand, certain information relating to the diamond bourses – persons not party to the dispute – must be regarded as confidential in the present case. Spira annexed to its pleadings extracts from their complaints and letters disputing the SOC arrangements and their replies to the Commission’s requests for information concerning those arrangements (Annex A.16, also reproduced in the annex to Annex A.40, and footnotes Nos 45 and 155 of the application; Annex C.17, and paragraphs 109 and 245 of the reply). According to case-law, when documents on the Court’s file implicate natural or legal persons other than the parties to the dispute, they are in principle entitled to the protection of the confidential information concerning them (orders in Gencor v Commission, paragraph 17, and Glaxo Wellcome v Commission, paragraph 50).
86 In the present case, it is apparent from the file that the above-mentioned complaints, letters and replies were supplied by the diamond bourses to Spira at its request, since Spira had obtained from the Commission only non-confidential summaries redacting the names of the diamond bourses concerned and certain other information. It may be inferred from this at the very least that some of those diamond bourses had requested confidential treatment from the Commission of information in the documents in question. Indeed, the Court has held that the fact that some of the respondents to a market investigation expressed their fears of possible retaliation justified confidential treatment by the Commission of all of the responses (Case T-5/02 Tetra Laval v Commission [2002] ECR II-4381, paragraph 107).
87 The application for confidential treatment cannot, however, be upheld for all of the information in the annexes referred to. According to case‑law, the right of persons other than the parties to the dispute to protection in respect of confidential information concerning them cannot lead to confidential treatment automatically being accorded to all the information regarded by those persons as being confidential (see, to that effect, order in Gencor v Commission, paragraph 17). It has been held that data allowing identification of an informant who has sought anonymity must, however, be accorded special treatment, since that data must be considered to be confidential information because of the institutions’ obligation to keep secret the identity of such an informant (see, to that effect, order of the President of the Fifth Chamber of the Court of 12 July 2011 in Case T‑198/09 UOP v Commission, not published in the ECR, paragraph 31, and the case-law cited). It must also be noted that an application for confidential treatment may only exceptionally extend to the entirety of an annexed document (see paragraph 29 above). In addition, the information referred to in the documents at issue which seeks to challenge the SOC arrangements appears necessary in order for De Beers – which is principally concerned by the above issues – to exercise its procedural rights. Consequently, only the names of the diamond bourses concerned must be granted confidential treatment.
88 It follows from all of the foregoing that, with the exception of those referred to in paragraphs 44 and 87 above, Spira’s applications for confidential treatment must be dismissed.
The application for a measure of organisation of procedure
89 By letter of 8 February 2008 (see paragraph 3 above), Spira 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.
90 The measure of organisation of procedure requested is not necessary since, in accordance with the settled case-law referred to in paragraph 68 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.
91 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 application for confidential treatment vis-à-vis De Beers and De Beers UK Ltd is upheld in respect of:
– Annex A.2 of the application, solely in relation to those passages which were not disclosed to them during the administrative procedure;
– the names of the diamond bourses referred to in Annexes A.16 and A.40 of the originating application and in Annex C.17 of the reply.
2. The applications of Diamanthandel A. Spira BVBA are dismissed as to the remainder.
3. The Registrar shall serve on De Beers and De Beers UK a non‑confidential version of the procedural documents consistent with point 1 of this operative part, to be provided by Diamanthandel A. Spira BVBA within the period prescribed by the Registrar.
4. 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.
5. Costs are reserved.
Luxembourg, 8 May 2012.