ORDER OF THE PRESIDENT
OF THE NINTH CHAMBER OF THE GENERAL COURT
18 May 2015 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑120/14,
PT Ciliandra Perkasa, established in West Jakarta (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 Ciliandra Perkasa, 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 letters filed on 22 October and 3 November 2014, the Council requested that certain documents and information contained in the rejoinder and in the Commission’s statement in intervention be subject to confidential treatment vis-à-vis the EBB. It attached a non-confidential version of those documents to those letters.
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 and in the Commission’s statement in intervention.
11 First, the application for confidentiality brought by the applicant covering the application concerns:
– in paragraph 19, the applicant’s shareholding held by its parent company, First Resources Limited;
– in paragraphs 22 and 24, the applicant’s dumping margin, and the difference between that provisional dumping margin and the final dumping margin;
– in paragraph 32, the exact percentage of crude palm oil (‘CPO’) originating from the applicant’s in-house production;
– in paragraph 33, the table summarising the prices at which CPO produced in-house and the prices at which CPO produced by related companies is transferred and the names of the related parties which supply CPO to the applicant;
– in paragraph 37, the number of the related suppliers and the shareholdings held by the applicant and/or its parent company in the related CPO suppliers;
– in paragraph 39, the applicant’s shareholding in its subsidiaries and First Resources’ shareholding in its subsidiaries;
– in paragraph 40, the difference between the applicant’s actual transfer prices and the transfer price of ‘undistorted’ CPO;
– in paragraph 51, details in the table summarising the related CPO suppliers’ production costs and transfer prices;
– in paragraph 53, the CPO production costs incurred by the applicant and the difference from the market price established by the institutions and the actual purchase price between the related parties;
– in paragraph 54, the related CPO suppliers’ actual profit margins;
– in paragraphs 56 and 58, the difference between the in-house transfer price and the transfer price between related companies.
12 The application also concerns information included in some annexes to the application or the whole of some annexes to it, in particular:
– the whole of Annex A 2, containing information on the applicant’s operations, its sales prices to the European Union and on the domestic market as well as its production costs;
– in Annex A 5, at pages 118 and 120, detailed information with respect to calculating the applicant’s dumping margin and, at page 122, details on the adjustment that was made for the cost of CPO;
– in Annex A 6, at pages 141 and 143, detailed information on the shareholdings held by the applicant and/or its parent company in the related CPO suppliers, at page 142, 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 144, detailed information on the applicant’s CPO purchases;
– in Annex A 7, at page 151, the applicant’s dumping margin, and the difference between that provisional margin and the final dumping margin, at pages 168 and 171, the shareholding held by the applicant and/or its parent company in the related CPO suppliers and the table at page 168 summarising those shareholdings, at page 169, the list of other products produced by the applicant, at page 170, the detailed information on the applicant’s CPO production costs (and its related CPO suppliers) and the difference between those costs, the transfer price and the market price, the purchase prices between the related parties and the profits obtained by the plantations and the oil mills;
– the whole of Annex A 10 containing the structure of the First Resources group;
– the whole of Annex A 11 containing the applicant’s 2012 Consolidated Financial Statements;
– the whole of Annex A 13 containing information on the actual production volumes of the CPO producers that are part of the First Resources group;
– the whole of Annex A 15, containing detailed information on the applicant’s actual production cost of CPO;
– the whole of Annex A 16, containing the cost of CPO of related raw material suppliers;
– the whole of Annex A 17, containing detailed information on the profitability of the applicant’s CPO suppliers;
– the whole of Annex A 23, containing the applicant’s statutes;
– the whole of Annex A 27, 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 information relating to the difference between the in-house transfer prices and transfer prices between related companies in paragraph 30.
14 Thirdly, the application for confidentiality brought by the applicant covering the reply concerns:
– in paragraphs 10 and 13, the actual profit margins of the related CPO suppliers;
– in paragraph 21, the price difference between the CPO transferred in-house and the CPO transferred between related companies;
– in paragraph 22, the table summarising the prices at which CPO produced in-house and the prices at which CPO produced by related companies is transferred and the names of the related parties supplying CPO to the applicant;
– in paragraph 77, the applicant’s dumping margin.
15 Fourthly, the application for confidentiality brought by the Council covering the rejoinder concerns certain information on the applicant’s profit margins in paragraphs 10 and 11.
16 Fifthly, the application for confidentiality brought by the Council covering the Commission’s statement in intervention concerns the applicant’s exact shareholding held by First Resources in paragraph 1.
The merits of the applications for confidentiality
Considerations of principle
17 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’.
18 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, Embraer and Others v Commission, T‑75/10, EU:T:2012:198, paragraph 14 and the case-law cited).
19 In that regard, in the first place, the Instructions to the Registrar of the General Court, as amended on 17 May 2010, (OJ 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, SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, T‑384/09, EU:T:2011:192, paragraph 25 and the case-law cited).
20 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, Hynix Semiconductor v Council, T‑383/03, ECR, EU:T:2005:57, paragraph 36).
21 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, Orange v Commission, T‑258/10, EU:T:2012:524, paragraph 21 and the case-law cited).
22 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 20 above, EU:T:2005:57, paragraph 38, and Orange v Commission, paragraph 21 above, EU:T:2012:524, paragraph 22).
23 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 20 above, EU:T:2005:57, paragraph 34, and Orange v Commission, paragraph 21 above, EU:T:2012:524, paragraph 23).
24 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, Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 25, and of 14 October 2009, vwd Vereinigte Wirtschaftsdienste v Commission, T‑353/08, EU:T:2009:402, paragraph 17).
25 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 Hynix Semiconductor v Council, paragraph 20 above, EU:T:2005:57, paragraph 42, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 24 above, EU:T:2009:402, paragraph 24).
26 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 Hynix Semiconductor v Council, paragraph 20 above, EU:T:2005:57, paragraph 44, and vwd Vereinigte Wirtschaftsdienste v Commission, paragraph 24 above, EU:T:2009:402, paragraph 25).
27 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 20 above, EU:T:2005:57, paragraph 46).
28 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
29 According to the principles set out in paragraphs 20 and 21 above, the applicant’s application for confidential treatment must be granted in so far as it covers the information included in paragraphs 22, 24, 32, 33, 40, 51, 53, 54, 56 and 58 of the application, as described in paragraph 11 above, as well as the whole of or certain information included in Annexes A 2, A 5, A 6, A 7, A 10, A 13, A 15, A 16, A 17, A 23 and A 27 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. The same is true of the confidential information identified by the applicant concerning paragraph 30 of the defence, as described in paragraph 13 above.
30 As for the reply, the applicant’s application for confidential treatment must be granted in so far as it covers the information included in paragraphs 10, 13, 21 and 77 thereof, described in paragraph 14 above, since no objection has been made by the EEB with regard to that application.
31 Finally, as regards the applications for confidentiality brought by the Council concerning, first, the information included in paragraphs 10 and 11 of the rejoinder referred to in paragraph 15 above, and, second, the information included in paragraph 1 of the Commission’s statement in intervention referred to in paragraph 16 above, they were not challenged by the EEB, accordingly, they must also be granted.
Information for which confidentiality has been requested and against which an objection has been made
– Information identified in the application
32 First, regarding the application for confidential treatment relating to the applicant’s shareholding held by First Resources as specified in paragraph 19 of the application, as the EBB maintains, that information is shown on page 51 of First Resources’ 2013 Annual Report, a copy of which was submitted by it, with the result that it is public information. In addition, that information is also mentioned in First Resources’ 2011 Annual Report, which is attached to the application and for which no application for confidentiality has been made. The application for confidential treatment of that information must therefore be dismissed.
33 Secondly, as regards the applicant’s or its parent company’s shareholding in the related companies supplying CPO, specified in paragraph 37 of the application, and the information relating to the shareholdings held by the applicant in its subsidiaries and those held by First Resources in its subsidiaries, specified in paragraph 39 of the application, that information cannot be given confidential treatment either.
34 In fact, as the EBB points out, that information is set out with the same level of detail in First Resources’ 2011 and 2013 Annual Reports, referred to in paragraph 32 above. It must therefore be held that this is information which is usually disclosed to the public by First Resources.
35 Thirdly, as regards Annex A 11 containing the applicant’s 2012 Consolidated Financial Statements, the applicant justifies the application for confidentiality of them by claiming that they contain information that is confidential by its very nature which cannot be disclosed in its entirety to the EBB.
36 The EBB contends that that document is public and should therefore be disclosed to it. It submits a copy of First Resources’ 2012 Consolidated Financial Statements by way of reference. It adds, moreover, that in the event that Annex A 11 cannot be disclosed in its entirety, the applicant must state the reasons why partial confidentiality is required.
37 In that regard, it must be noted that the fact that the Consolidated Financial Statements of First Resources, a publicly listed company, are public does not mean that that is necessarily the case for the applicant, which is not listed: no information has been submitted to the Court to make it possible to conclude that in Indonesia there is an obligation to publish consolidated accounts for companies such as the applicant.
38 Moreover, even if the applicant’s line of argument in support of its application for confidentiality in that respect is general and vague, it cannot be denied that such accounts usually contain information which is by its nature secret in so far as it concerns financial or accounting information, in accordance with the case-law cited in paragraph 23 above.
39 Furthermore, as regards the balancing of interests involved, the EBB clearly puts forward no ground to justify how the information contained in those accounts is necessary to exercise its procedural rights.
40 Nevertheless, it must be noted that an application for confidential treatment may only exceptionally extend to the entirety of an annexed document and confidential treatment cannot be granted in respect thereof on the basis of general and vague reasoning (see order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, EU:T:2013:199, paragraph 44 and the case-law cited).
41 In the light of those circumstances, it is appropriate to consider the information contained in Annex A 11 in more detail in order to determine whether certain parts of the accounts at issue may be categorised as information which is confidential by its very nature.
42 Accordingly, the three introductory pages containing the table of contents and the auditors’ overall conclusion are not confidential by their very nature. Similarly, the general description of the company at page 9 and at the first part of page 10 of the Consolidated Financial Statements also do not contain information which is confidential by its very nature. As for the information relating to the applicant’s subsidiaries in the table in the second part of page 10 and at page 11 of the Consolidated Financial Statements, for the reasons given in paragraphs 32 to 34 above, it is not necessary to grant the application for confidentiality in so far as it concerns the names of the subsidiaries, their operations and the shareholdings held by the applicant. However, confidentiality may be granted to information relating to the year when they started commercial operations, in the third column, and to the value of assets in the last two columns of that table, for which it is not established that those values are usually disclosed to the public. Similarly, as regards the balancing of interests involved, the application for confidential treatment may be granted with respect to pages 12 to 92 of the Consolidated Financial Statements because they involve financial or accounting information, which is confidential by its very nature, and in relation to which no specific argument has been advanced as to its usefulness in the context of the exercise of EBB’s procedural rights.
– Information identified in the reply
43 As regards the application for confidential treatment covering the table in paragraph 22 of the reply summarising the prices at which CPO produced in-house and the prices at which CPO produced by the related companies is transferred and the names of related parties supplying CPO to the applicant, the EBB contends that the confidential treatment of the names of the related companies supplying CPO to the applicant is not justified since it concerns publicly-available information contained in the annual report of the applicant’s group.
44 As has already been observed in paragraphs 32 to 34 above, the names of the companies related to the applicant are communicated to the public in the annual report of the applicant’s parent company, which specifies, in addition, the operations of those companies such as the operation of palm plantations.
45 It follows that the application for confidential treatment of the information identified in paragraph 22 of the reply must be dismissed in so far as it concerns the names of related companies supplying CPO.
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 22, 24, 32, 33, 40, 51, 53, 54, 56 and 58 of the application;
– the redacted information in paragraphs A 2, A 5, A 6, A 7, A 10, A 13, A 15, A 16, A 17, A 23 and A 27 of the application;
– information relating to the year when PT Ciliandra Perkasa’s subsidiaries started commercial operations, in the third column, and to the value of assets in the last two columns of the table at pages 10 and 11 of its Consolidated Financial Statements in Annex A 11 to the application and at pages 12 to 92 of those Consolidated Financial Statements;
– redacted information in paragraph 30 of the defence;
– redacted information in paragraphs 10, 13, 21 and 77 of the reply;
– redacted information in paragraph 22 of the reply other than the names of the related companies supplying crude palm oil;
– redacted information in paragraphs 10 and 11 of the rejoinder;
– the redacted information in paragraph 1 of the Commission’s statement in intervention.
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 Ciliandra Perkasa 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.