ORDER OF THE PRESIDENT OF THE COURT
23 September 2021 (*)
(Appeal – Intervention – Confidentiality – Information treated as confidential at first instance)
In Case C‑465/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 September 2020,
European Commission, represented by L. Flynn, P.‑J. Loewenthal and by F. Tomat, acting as Agents,
applicant,
the other parties to the proceedings being:
Ireland, represented by M. Browne, J. Quaney and A. Joyce, acting as Agents, and by S. Kingston, Senior Counsel, C. Donnelly, Senior Counsel, and A. Goodman, Senior Counsel, as well as P.W. Baker QC and B. Doherty, Barrister-at-Law,
Apple Sales International, established in Cork (Ireland),
Apple Operations Europe, established in Cork,
represented by A. von Bonin, Rechtsanwalt, E. van der Stok, advocaat, C. Riis-Madsen, advokat, and D. Beard QC, as well as J. Bourke and L. Osepciu, Barristers,
applicants at first instance,
Grand Duchy of Luxembourg, represented by T. Uri and A. Germeaux, acting as Agents, and by D. Waelbroeck and J. Bracker, avocats,
Republic of Poland,
EFTA Surveillance Authority, represented by C. Zatschler, M. Sánchez Rydelski and C. Simpson, acting as Agents,
interveners at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal of N. Wahl, Judge-Rapporteur,
after hearing the Advocate General, G. Pitruzzella,
makes the following
Order
1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 15 July 2020, Ireland and Others v Commission (T‑778/16 and T‑892/16, EU:T:2020:338), by which the General Court annulled Commission Decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple (OJ 2017 L 187, p. 1).
2 By order of the President of the Court of Justice of 14 December 2020, it was decided, in respect of the Grand Duchy of Luxembourg and the Republic of Poland, interveners at first instance, and by agreement with the Commission and Ireland on 30 November 2020, that the information redacted in the common non-confidential version of the appeal and annexes thereto, filed at the Registry of the Court of Justice by Apple Sales International and Apple Operations Europe, was to be treated as confidential and that only the non-confidential version was to be served by the Registrar on those two interveners at first instance.
3 By order of the President of the Court of Justice of 11 February 2021, it was decided, in respect of the Grand Duchy of Luxembourg and the Republic of Poland, interveners at first instance, that the information redacted in the non-confidential version of the reply of Apple Sales International and Apple Operations Europe, lodged at the Court Registry on 11 December 2020, was to be treated as confidential, and that only the non-confidential version was to be served on those two Member States by the Registrar, and furthermore, that the information redacted in the non-confidential version of Ireland’s reply, lodged at the Court Registry on 7 January 2021, was to be treated as confidential and that only the non-confidential version was to be served on those two interveners at first instance by the Registrar.
4 By order of the President of the Court of Justice of 16 July 2021, it was decided, in respect of the Grand Duchy of Luxembourg and the Republic of Poland, that the information redacted in the non-confidential version of the Commission’s reply was to be treated as confidential and that only that non-confidential version was to be served on those two Member States by the Registrar.
5 On 12 July 2021, Apple Sales International, Apple Operations Europe and Ireland had filed their rejoinder.
6 By document lodged at the Court Registry on 12 July 2021, Apple Sales International and Apple Operations Europe had asked the Court to treat as confidential, in respect of the Grand Duchy of Luxembourg and the Republic of Poland, a figure set out in paragraph 38 of their rejoinder. At the same time as that request for confidential treatment, Apple Sales International and Apple Operations Europe submitted a non-confidential version of the rejoinder to the Registry of the Court.
7 Ireland has not made any request for confidential treatment of its rejoinder. It also stated that it agreed with the request for confidential treatment made by Apple Sales International and Apple Operations Europe.
8 Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. Moreover, in accordance with Article 172 of the Rules of Procedure, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service of the appeal on that party. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on the parties given leave to intervene at first instance.
9 However, where a party is requesting, vis-à-vis a party that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis that same party in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (orders of the President of the Court of Justice of 13 December 2016, Lundbeck v Commission, C‑591/16 P, not published, EU:C:2016:967, paragraph 5, and of 2 September 2020, Eurofer v Commission, C‑226/20 P, not published, EU:C:2020:669, paragraph 4).
10 In the present case, it should be noted that the application for confidential treatment of the rejoinder of Apple Sales International and Apple Operations Europe relates only to a figure, relating to the precise number of persons employed by the Irish branch of Apple Sales International as part of the research and development facilities management, the confidential nature of which was recognised by the General Court and which was thus redacted in paragraph 273 of the judgment of 15 July 2020, Ireland and Others v Commission (T‑778/16 and T‑892/16, EU:T:2020:338), in its public version.
11 It follows that the request made by Apple Sales International and Apple Operations Europe, that the Court should treat as confidential, in respect of the Grand Duchy of Luxembourg and the Republic of Poland, the information redacted in the non-confidential version of the rejoinder lodged by Apple Sales International and Apple Operations Europe at the Registry of the Court of Justice, must be granted.
12 Accordingly, only the non-confidential version of the rejoinder should be served on the Grand Duchy of Luxembourg and the Republic of Poland.
On those grounds, the President of the Court hereby orders:
1. The information redacted from the non-confidential version of the rejoinder of Apple Sales International and Apple Operations Europe and annexes thereto shall be treated as confidential in respect of the Grand Duchy of Luxembourg and the Republic of Poland, and only that non-confidential version is to be served, by the Registrar, on those Member States.
2. The decision as to costs is reserved.
Luxembourg, 23 September 2021.
A. Calot Escobar | | K. Lenaerts |