ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
29 April 2008 (*)
(Confidentiality)
In Case T‑275/06,
Omya AG, established in Oftringen (Switzerland), represented by J. Flynn, QC, C. Ahlborn and C. Berg, Solicitors,
applicant,
v
Commission of the European Communities, represented initially by X. Lewis, V. Di Bucci, F. Amato and R. Sauer, and subsequently by X. Lewis, V. Di Bucci and R. Sauer, acting as Agents,
defendant,
supported by
Minerals Technologies Inc., established in New York, New York (United States), represented by S. Hiltunen, lawyer,
intervener,
APPLICATION for annulment of Commission Decision 2007/164/EC of 19 July 2006 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.3796 – OMYA/J.M. HUBER PCC) (OJ 2007 L 72, p. 24),
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Procedure
1 By application lodged at the Registry of the Court of First Instance on 4 October 2006, the applicant brought an action against Commission Decision 2007/164/EC of 19 July 2006 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.3796 – OMYA/J.M. HUBER PCC) (OJ 2007 L 72, p. 24) concerning the applicant’s acquisition of a number of European production sites of J.M. Huber Corp. (‘Huber’).
2 By a document lodged at the Court Registry on 22 January 2007, Minerals Technologies Inc. applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 25 April 2007, the President of the Second Chamber of the Court allowed that intervention.
3 The main parties to the proceedings have submitted requests for confidential treatment, vis-à-vis the intervener, of certain passages in their pleadings and the annexes thereto. Thus:
– on 2 March 2007, the Commission submitted a request concerning the defence and the annexes thereto;
– on 20 March 2007, the applicant submitted a request concerning the application and the annexes thereto, by which it sought, in particular, confidential treatment of Annex A.6 in its entirety, consisting of an assessment report on the theory of competitive harm relied on by the Commission, of Annex A.8, consisting of the summary of a meeting between Huber and one of its customers, UPM‑Kymmene, which took place on 20 September 2004, and of Annex A.22, consisting of a summary of a meeting between the applicant and the Commission;
– also on 20 March 2007, the applicant submitted a request concerning the defence and the annexes thereto;
– on 18 May 2007, the applicant submitted a request concerning the reply and the annexes thereto;
– on 4 September 2007, the applicant submitted a request concerning its observations on the statement in intervention;
– on 16 October 2007, the applicant submitted a request concerning the rejoinder and the annexes thereto.
4 By letter of 21 May 2007, the intervener challenged the request of 20 March 2007 for confidential treatment of the application in so far as it related to Annexes A.6, A.8 and A.22 thereto.
5 By letter of 12 June 2007, the applicant replied to the intervener’s letter of 21 May 2007 and sent it a non-confidential version of Annex A.22 to the application.
6 By letter of 25 July 2007, the intervener accepted the applicant’s submission of a non-confidential version of Annex A.22, but reiterated its objections in respect of the confidential treatment of Annexes A.6 and A.8.
The requests for confidential treatment
Preliminary observations
7 As a preliminary point, it must be noted that the requests for confidential treatment were submitted on the basis of Article 116(2) of the Rules of Procedure of the Court of First Instance, which provides that ‘the intervener shall receive a copy of every document served on the parties’ but that ‘the President may, however, on application by one of the parties, omit secret or confidential documents’.
8 According to case-law, for the purpose of determining the conditions under which confidential treatment may be accorded to certain documents in the file, it is necessary to balance, in respect of each document or part of a document on the Court’s file for which confidential treatment is claimed, the applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate concern to have the necessary information for the purpose of being fully in a position to assert their rights and to state their case before the Community Court (order in Case T-30/89 Hilti v Commission [1990] ECR II‑163, published in extract form, paragraph 11; order of 3 July 1998 of the President of Second Chamber, extended composition, in Case T-143/96 Volkswagen and Volkswagen Sachsen v Commission, not published in the ECR, paragraph 16; and order of the President of the Fifth Chamber in Case T‑271/03 Deutsche Telekom v Commission [2006] ECR II-1747, paragraph 10).
9 In addition, the intervener’s challenge to the request for confidentiality must relate to precise items of the procedural documents which have been obscured 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 (see, to that effect, order in Deutsche Telekom v Commission, paragraphs 12, 14 and 15).
The requests for confidential treatment which have not been disputed by the intervener
10 According to the case-law set out above, since reasons were given for the requests for confidential treatment here in issue, they should be allowed in so far as they have not been challenged by the intervener or, as in the case of Annex A.22 to the application, where the intervener withdrew its objections after being sent a non-confidential version of the document in question.
11 Therefore, at this stage it is appropriate to grant:
– the Commission’s request of 2 March 2007 concerning the defence and the annexes thereto;
– the applicant’s request of 20 March 2007 concerning the application and the annexes thereto, as amended by the applicant’s letter of 12 June 2007, except in so far as it relates to Annexes A.6 and A.8 to the application;
– the applicant’s request of 20 March 2007 concerning the defence and the annexes thereto;
– the applicant’s request of 18 May 2007 concerning the reply and the annexes thereto;
– the applicant’s request of 4 September 2007 concerning its observations on the statement in intervention;
– the applicant’s request of 16 October 2007 concerning the rejoinder and the annexes thereto.
The request for confidential treatment of Annex A.6 to the application
Arguments of the parties
12 The applicant maintains that Annex A.6, consisting of an assessment report of the theory of competitive harm relied on by the Commission, is based on a detailed analysis of sensitive information relating to the market situation which had already been deemed confidential by the Commission. It submits, therefore, that that annex must be excluded in its entirety from the documents communicated to the intervener.
13 The intervener submits that, in so far as Annex A.6 appears to form the basis of the second head of claim raised by the applicant in the first plea, the applicant’s general arguments relating to its confidential nature are insufficient, particularly in so far as they fail to identify in detail the various items which should be excluded from any disclosure.
Findings of the President
14 It must first be pointed out that, while Annex A.6 is probably based on sensitive commercial data, as the applicant claims, such data are not mentioned in it, with the exception, first, of the commercial origin of the ground calcium carbonate used in the development by Huber of a coating blend, which is referred to at the end of point P.4 of Part 2 of Annex A.6 and in footnote No 19 and, secondly, of the composition of the coating products used by some paper mills, referred to in footnote No 22. Besides those items, that annex contains an abstract economic analysis which casts doubt on the Commission’s assessment and therefore underlies the second head of claim in the first plea. Therefore, to that extent there is no need to grant confidential treatment to Annex A.6, since it does not appear, in the light of the applicant’s arguments, that disclosure of the items in question would substantially harm its business interests.
15 Next, as regards the commercial origin of the ground calcium carbonate used in the development of a coating blend by Huber, it must be noted that, since that item concerns one of Huber’s suppliers, disclosure of this is liable to harm substantially the applicant’s business interests following its buyout of Huber. Therefore, that item must be regarded as confidential. Furthermore, its disclosure does not appear necessary in order to enable the intervener to assert its rights and set out its argument before the Community Court, given that the intervener did not challenge the fact that it was obscured in paragraph 43 of the non‑confidential version of the application. Consequently, that item should be granted confidential treatment.
16 Lastly, as regards the composition of the coating products used by some paper mills, that type of information is liable to reveal the supply needs of those paper mills and, consequently, the potential outlets for the goods offered by the applicant and the other undertakings operating on the same market. Thus, such information is also liable to harm substantially the applicant’s business interests and must therefore be regarded as confidential. Moreover, its disclosure to the intervener does not appear to be necessary, since neither the Commission’s arguments nor those of the applicant are based on the exact composition of the goods used by the various paper mills. Consequently, that item should also be granted confidential treatment.
17 In the light of the foregoing, it must be concluded that, as regards Annex A.6 to the application, the request for confidential treatment submitted by the applicant on 20 March 2007 must be granted to the extent to which it covers the part of point P.4 of Part 2 after the word ‘supplied’ and footnotes No 19 and No 22, and rejected as to the remainder.
The request for confidential treatment of Annex A.8 to the application
Arguments of the parties
18 The applicant maintains that, since Annex A.8 concerns strategic business negotiations between Huber and UPM-Kymmene relating to the Kuusankoski production plant (Finland), it must be excluded in its entirety from the documents communicated to the intervener.
19 The intervener submits that, as the applicant’s competitor on the market for coating products in Southern Finland, it is in a position to make relevant observations on the conduct of business negotiations in that sector, on condition, however, that it obtains reasonable access to Annex A.8. Likewise, it submits that, given that it is a small undertaking in comparison with the applicant, any harm incurred by the applicant as a result of disclosure of that annex would be limited.
Findings of the President
20 First of all, Annex A.8 consists of the summary of a meeting between Huber and UPM-Kymmene which took place on 20 September 2004 and which dealt with the conditions for cooperation between those two companies in the supply of coating products to the Kuusankoski production plant. However, the communication of such information is liable to harm substantially the applicant’s business interests, following its buyout of Huber, and Annex A.8 is therefore a priori confidential.
21 Next, in the parties’ pleadings three passages from Annex A.8 are mentioned. They are: the part entitled ‘(a) Concept’, concerning the confidentiality of the information exchanged between Huber and UPM‑Kymmene (see paragraph 107 of the application), the part entitled ‘(c) Contract length’, concerning the extension of the contract relating to the Kuusankoski production plant requested by Huber (see, in particular, paragraphs 83 to 88 of the application), and the part entitled ‘(c) Price’, concerning the indicative price proposed by Huber in the negotiations (see, in particular, paragraphs 90 to 92 of the application). Consequently, the other parts of Annex A.8 are not relevant for the purpose of the proceedings before the Court and the request for confidential treatment must therefore be granted in so far as they are concerned.
22 As regards the three passages of Annex A.8 mentioned above, first, the first sentence of the part entitled ‘(a) Concept’, which is the only passage in that annex relating to confidentiality, is reproduced in its entirety in paragraph 107 of the non-confidential version of the application.
23 Likewise, secondly, the part entitled ‘(c) Contract length’ is reproduced in paragraph 86 of the non-confidential version of the application, with the exception of the name of the representative of UPM-Kymmene present at the meeting, the length of the extension of the contract between UPM-Kymmene and Huber requested by the latter and the number of years until the planned expiry date of the contract and the expiry date requested.
24 Thirdly and finally, the part entitled ‘(c) Price’ is reproduced in paragraph 90 of the application, with the exception of the identity of UPM-Kymmene’s representative, from the part of the first sentence after the words ‘discussions with SMI’, which contains Huber’s internal estimates relating to the analysis of the market carried out by UPM‑Kymmene and a summary of UPM-Kymmene’s position in regard to certain technology and the indicative price offered by Huber to UPM‑Kymmene.
25 Therefore, with the exception of the specific data mentioned above which were obscured in the non-confidential version of the application, the intervener is aware of the three relevant parts of Annex A.8, having obtained communication of the non-confidential versions of all the pleadings of the parties to the main proceedings. As a result, and to that same extent, it is not appropriate to accord confidential treatment to Annex A.8.
26 As regards, lastly, the data obscured in the non-confidential version of the application, these are of a confidential nature inasmuch as they refer, as noted above, to negotiations between two commercial partners and concern, more specifically, the identity of a physical person, the details of a commercial contract concluded between UPM-Kymmene and Huber, Huber’s internal estimates and information on UPM‑Kymmene’s position in regard to certain technology. Moreover, disclosure of those data does not appear to be necessary in order to allow the intervener to assert its rights and to set out its arguments before the Community Court given, first, that partial access to Annex A.8 will enable the intervener to become aware of the general position adopted by UPM-Kymmene and Huber in the negotiations on the extension of the contract and price and, secondly, that the intervener has not challenged the fact that those items are obscured in the non‑confidential version of the application. Consequently, confidential treatment of those items should be granted.
27 It follows that, in so far as it concerns Annex A.8 to the application, the request for confidential treatment submitted by the applicant on 20 March 2007 must be granted for the parts other than the first sentence of the part entitled ‘(a) Concept’, the part entitled ‘(c) Contract length’ and the part entitled ‘(c) Price’. That request must also be granted with regard to, in the part entitled ‘(c) Contract length’, the name of the representative of UPM-Kymmene, the length of the extension of the contract between UPM-Kymmene and Huber sought by Huber and the number of years until the planned expiry date of that contract and the requested expiry date and, in the part entitled (‘c) Price’, the name of the representative of UPM-Kymmene, the part of the first sentence after the words ‘discussions with SMI’ and the indicative price proposed by Huber. It must be rejected as to the remainder.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The following requests for confidential treatment are granted:
– the Commission’s request of 2 March 2007 concerning the defence and the annexes thereto;
– the applicant’s request of 20 March 2007 concerning the defence and the annexes thereto;
– the applicant’s request of 18 May 2007 concerning the reply and the annexes thereto;
– the applicant’s request of 4 September 2007 concerning its observations on the statement in intervention;
– the applicant’s request of 16 October 2007 concerning the rejoinder and the annexes thereto.
2. The applicant’s request of 20 March 2007 for confidential treatment with regard to the application and the annexes thereto, as amended by the applicant’s letter of 12 June 2007, is granted in so far as it concerns:
– the items other than Annexes A.6 and A.8;
– the part of point P.4 of Part 2 of Annex A.6 after the word ‘supplied’ and footnotes No 19 and No 22 of that annex;
– the parts of Annex A.8 other than:
– the first sentence of the part entitled ‘(a) Concept’;
– the part entitled ‘(c) Contract length’;
– the part entitled ‘(c) Price’;
– in the part entitled ‘(c) Contract length’ in Annex A.8, the name of the representative of UPM-Kymmene, the length of the extension of the contract between UPM-Kymmene and Huber requested by Huber and the years of the expiry of that contract as planned and requested;
– in the part entitled ‘(c) Price’ of Annex A.8, the name of the representative of UPM-Kymmene, the part of the first sentence after the words ‘discussions with SMI’ and the indicative price suggested by Huber.
3. The applicant’s request of 20 March 2007 for confidential treatment with regard to the application and its annexes, as amended by the applicant’s letter of 12 June 2007, is rejected as to the remainder.
4. A non-confidential version of Annexes A.6 and A.8 which complies with points 2 and 3 of the operative part of the present order, to be sent by the applicant within the period set by the Registrar, shall be served on the intervener by the Registrar.
5. The costs are reserved.
Luxembourg, 29 April 2008