ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE
18 November 2008 (*)
(Confidentiality)
In Case T‑274/07,
Zhejiang Harmonic Hardware Products Co. Ltd, established in Huabu (China), represented by R. MacLean, Solicitor,
applicant,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, and by B. O’Connor, Solicitor,
defendant,
supported by
Vale Mill (Rochdale) Ltd, established in Rochdale (United Kingdom),
Pirola SpA, established in Mapello (Italy),
and
Colombo New Scal SpA, established in Rovagnate (Italy),
represented by G. Berrisch and G. Wolf, lawyers,
and by
Commission of the European Communities, represented by H. van Vliet and K. Talabér-Ricz, acting as Agents,
interveners,
APPLICATION for annulment of Council Regulation (EC) No 452/2007 of 23 April 2007, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2007 L 109, p. 12), to the extent that it imposes an anti-dumping duty on imports of ironing boards manufactured by the applicant,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
makes the following
Order
Proceedings
1 By application filed at the Registry of the Court of First Instance on 19 July 2007, Zhejiang Harmonic Hardware Products Co. Ltd (‘the applicant’) brought an action seeking annulment of Council Regulation (EC) No 452/2007 of 23 April 2007, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2007 L 109, p. 12; ‘the contested regulation’), to the extent that it imposes an anti-dumping duty on imports of ironing boards manufactured by the applicant.
2 By documents filed at the Registry of the Court on 25 and 26 October 2007 respectively, Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scal SpA (‘the intervening companies’), firstly, and the Commission, secondly, applied to intervene in the present case in support of the form of order sought by the Council, pursuant to Article 115 of the Rules of Procedure of the Court of First Instance.
3 The applications for intervention were served on the parties in accordance with Article 116(1) of the Rules of Procedure. The Council submitted no objections to the applications for intervention. The applicant did not oppose the Commission’s application for intervention, but, by document filed at the Registry of the Court on 7 December 2007, objected to the granting of leave to intervene to the intervening companies.
4 By letters filed on 3 and 7 December 2007 respectively, the Council and the applicant requested, pursuant to Article 116(2) of the Rules of Procedure, that certain documents annexed to the defence and to the originating application be excluded from the copy of the procedural documents to be served on the intervening companies and produced, for the purpose of service, non-confidential versions of the annexes to the defence and the originating application.
5 By order of 7 January 2008, the President of the Sixth Chamber of the Court of First Instance granted the intervening companies leave to intervene in support of the form of order sought by the Council and reserved his decision on the merits of the applications for confidential treatment with regard to the intervening companies.
6 By letter filed at the Registry of the Court on 21 May 2007, the intervening companies challenged the applications for confidential treatment.
7 By letter of 27 June 2008, the Court sent questions to the applicant and the Council, to which both the latter replied within the time-limits prescribed.
The applications for confidential treatment
Subject-matter of the applications
8 In their letters filed at the Registry of the Court of First Instance on 3 and 7 December, the Council and the applicant, respectively, applied for confidential treatment in respect of Annex B1 in its entirety, and in respect of Annexes A4, A5, A6, A8, A9, A10 and A14, in their entirety.
9 However, in its reply to the Court’s questions, filed at the Registry on 14 July 2008, the Council withdrew its application for confidential treatment of Annex B1. In addition, in its reply to the Court’s questions, the applicant withdrew its application for confidential treatment in respect of two documents contained in Annex A8, namely the letter on final general disclosure and a document entitled ‘Points Raised by Cromwell & Moring’.
10 Consequently, following the Council’s withdrawal of its application for confidential treatment and the applicant’s partial withdrawal of its application for confidential treatment, there remains only the applicant’s application for confidential treatment in respect of the annexes A4, A5 and A6 in their entirety, in respect of the specific disclosure document in Annex A8, and in respect of Annexes A9, A10 and A14 in their entirety.
Arguments of the parties
11 In support of its application for confidentiality, the applicant claims that those documents must be subject to confidentiality in their entirety on the ground that it would be impossible to produce a non-confidential version of them. In that regard, it submits, on the one hand, that the documents have been treated as confidential in the course of the anti-dumping procedure, which means those documents contain significant amounts of confidential information and, on the other hand, that those documents contain information which would allow the intervening companies to acquire a commercial advantage.
12 The applicant submits, furthermore, that examination of the issue of whether it met the conditions required for it to be granted market economy treatment comes within the exclusive competence of the Community institutions, and does not in any way concern the intervening companies, which cannot have any influence or put forward an opinion in that regard. Likewise, according to the applicant, the issue of the breach of its rights of defence cannot in any way involve the intervening companies.
13 In reply to the Court’s questions, the applicant referred to the content of Annexes A4, A5, A6, of the specific disclosure document contained in Annex 8, and of Annexes A9, A10 and A14, and reiterated its request for confidential treatment in respect of those documents in their entirety, emphasising their allegedly confidential nature and the prejudice it would suffer, in its opinion, if those documents were to be served on the intervening companies.
14 The intervening companies take the view that there is no need to grant confidential treatment to those documents in their entirety and contend that the details omitted are described in such a vague way that it is impossible for them to assess whether that information actually merits confidential treatment.
15 The interveners also contend that the fact that the documents were subject to confidential treatment during the administrative procedure does not prejudice the application for confidential treatment before the Court of First Instance. They contend, lastly, that they have an interest in the dismissal of the action and, therefore, in taking part in the dispute on the issues raised during the proceedings.
The findings of the President
16 Article 116(2) of the Rules of Procedure provides that:
‘[T]he intervener shall receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.’
17 This provision lays down the principle that interveners are to receive a copy of every pleading served on the parties, and it is only by way of derogation that it permits certain secret or confidential documents or information not to be sent to them (order of the Court of First Instance of 4 April 1990 in Case T-30/89 Hilti v Commission [1990] ECR II-163, publication by extracts, paragraph 10, and, order of the President of the Fourth Chamber of the Court of First Instance of 22 February 2005 in Case T-383/03 Hynix Semiconductor v Council [2005] ECR II-621, publication by extracts, paragraph 18).
18 In that regard, it should be borne in mind, first, that the party who makes an application for confidentiality has the task of specifying the documents or information covered and of duly stating the reasons for which they are confidential (order in Hynix Semiconductor v Council, paragraph 31). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restates those requirements in point 76, according to which ‘[a]n application 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’. It should be noted, on that point, that the first subparagraph of Article 6(2) of the Instructions to the Registrar of the Court of First Instance (OJ 2007 L 232, p. 1) provides that an application for confidential treatment must be made in accordance with, inter alia, point 76 of the Practice Directions to parties.
19 Second, in so far as an application brought under the second sentence of Article 116(2) of the Rules of Procedure is challenged, the President has the task first of all of examining whether the documents and information whose confidentiality is disputed, and for which an application for confidential treatment has been made, are secret or confidential (see, to that effect, order in Hynix Semiconductor v Council, paragraph 38, and order of the President of the Third Chamber (Extended Composition) of the Court of First Instance of 13 January 2005 in Case T-266/02 Deutsche Post v Commission, not published in the ECR, paragraph 21).
20 Third, 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 (order in Hynix Semiconductor v Council, paragraph 42).
21 Where confidential treatment is requested in the interests of the applicant, this assessment leads the President to weigh 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 (order in Hilti v Commission, paragraph 11, and order in Hynix Semiconductor v Council, paragraph 44).
22 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 (order of the Court of First Instance of 29 May 1997 in Case T-89/96 British Steel v Commission [1997] ECR II-835, paragraph 24, and order in Hynix Semiconductor v Council, paragraph 46).
23 It is in the light of those principles that the applications for confidential treatment made in the present case must be examined.
24 In the present case, although the applicant specifies, in its reply to the Court’s questions, the subject-matter of the information contained in the annexes for which it seeks confidential treatment, it restricts itself to basing its application for confidential treatment on the fact that the information indicated includes confidential details which, if disclosed to its competitors, would prejudice the applicant.
25 It should be observed, in that regard, that it is apparent from the case-law that 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 it is for the applicant to furnish (order in Hynix Semiconductor v Council, paragraph 34 and the case-law cited). 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.
26 It must be pointed out, in addition, that 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 has led to the adoption of the contested act. On the contrary, it is for him to examine whether the document or information in question is in fact secret or confidential (order in Hynix Semiconductor v Council, paragraph 40 and the case-law cited.)
27 The argument that the intervening companies, which are not concerned with whether the applicant fulfilled the requirements to be granted market economy treatment, or with the alleged infringements of its rights of defence, have no interest in the arguments put forward must also be rejected. On the one hand, as is apparent from paragraph 19 of this order, the issue as to whether a document or information may be eligible for confidential treatment is dependent, first, on its secret or confidential nature. On the other hand, since it has been established that the intervening companies have a direct and present interest in seeing granted the form of order sought by the Council, it must, in any event, be held that they have every interest in putting forward their observations on the grounds submitted by the applicant (order of the President of the Sixth Chamber of the Court of First Instance of 5 May 2008 in Case T-274/07 Zhejiang Harmonic Hardware Products Co. Ltd v Council, not published in the ECR, paragraphs 14 and 15).
28 In that context, it is for the President, where the secret or confidential nature of the annexes in question has been accepted, to assess whether confidential treatment of that information would excessively prejudice the procedural rights of the intervening companies (see paragraph 21 of this order).
Annex A4
29 The document in Annex A4 contains specific technical information on the subject-matter of market economy treatment, sent by the Commission to the applicant.
30 It must, first of all, be noted that the information contained under the headings ‘1. Background’ and ‘2. Basis for analysis’ is in no way secret or confidential, since it provides a general introduction to the document and concerns the criteria applied by the Commission in assessing whether to apply market economy treatment.
31 As regards, next, the first paragraph under the heading ‘(a) Internal structure and decision making’, it contains, as the applicant points out, information on the shareholder structure and the share capital of the undertaking. The applicant points out, in that regard, that that information is not in the public arena. In addition, the second paragraph under that heading sets out information on the structure of the group and on that of the related companies. In so far as that information is capable of being purely internal and may be of commercial interest, its confidential nature must be accepted.
32 By contrast, the applicant does not explain how the information relating to the management structure is confidential, or why disclosing that information to its competitors would prejudice it. That information is not unusual, as very many undertakings are aware of that type of structure. Therefore, the third paragraph under that heading cannot be granted confidential treatment. Likewise, the fourth paragraph under that heading, concerning the absence of restrictions on the activities of the company, clearly contains no secret or confidential information.
33 As regards the information set out under the heading ‘(i) procurement of inputs/labour/production/profit distribution’, it should be noted that the first paragraph under that heading contains information on input procurement and on the type of suppliers, the secret nature of which can be easily acknowledged, since it is potentially commercially sensitive information. By contrast, the second and third paragraphs under that heading concerning, respectively, State interference in the freedom of the undertaking to recruit or dismiss its staff, and the compliance of the profit distribution with the articles of association, regard being had to the terse and general way in which they are drafted, contain no information capable of being considered secret or confidential.
34 In relation to the single paragraph under the heading ‘(ii) sales’, it contains information on the export practices of the applicant, the confidential nature of which must be accepted, since it is commercially sensitive information.
35 As regards the two paragraphs under the heading ‘(a) Accounts’, they contain no details capable of forming secret or confidential information on the applicant’s accounting practices. Those paragraphs merely indicate, in general terms, the accounting rules to which the applicant’s practices conform and the existence of irregularities with regard to those rules.
36 As regards, however, the three paragraphs respectively under the headings ‘(i) Non compliance with the accrual principle’, ‘(ii) Payment for purchase invoices’ and ‘(iii) Offsetting of income and expenses’, they contain detailed information on the applicant’s accounting practices. Therefore those details must be accepted as business secrets of an accounting nature.
37 The paragraph under the heading ‘(b) Conclusion’ is drafted in general terms and contains no precise information on the applicant’s accounting practices which is not already contained in paragraph 25 of Commission Regulation (EC) No 1620/2006 of 30 October 2006 imposing a provisional anti-dumping duty on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2006 L 300, p. 13; ‘the provisional regulation’), and which may be held to be secret or confidential.
38 Lastly, it must be held that pages 5 and 6 of that document do not contain any information capable of being confidential. The applicant provides no reason explaining how information relating to the conditions in which the applicant acquired land use rights, or the area of land used, is confidential.
39 In addition, the information relating to the applicant’s method for calculating the depreciation of its fixed assets, its being subject to the Chinese bankruptcy laws (page 5), the conditions of loans granted to it, the foreign currency holdings, and the exchange rates to which the applicant has access (page 6), contain no specifics or details permitting the inference that it is secret or confidential information which, if disclosed to the intervening companies, would prejudice the applicant. In the absence of more specific reasoning on the part of the applicant, the application for confidential treatment cannot be accepted in relation to that information.
40 Weighing up the competing interests leads to the finding that the information contained in that document, the secret and confidential nature of which is accepted, is not necessary for the exercise of the procedural rights of the intervening companies. First, the information in relation to the applicant’s share capital and the structure of the group to which it belongs, have no link to the questions at issue in the dispute between the parties. The same goes for the information on the input procurements, the type of suppliers and the applicant’s export practices.
41 As regards, second, the information on the applicant’s accounting practices, although those are at the centre of the issues raised in the present case, inasmuch as the Commission’s refusal to grant market economy treatment to the applicant is based on the alleged incompatibility of its accounting practices with IAS standards, paragraph 25 of the provisional directive, as confirmed in paragraphs 12 and 13 of the contested regulation, enables the intervening companies to examine in sufficient detail the nature of that information and puts them in a position to exercise their procedural rights.
42 Taking account of the foregoing, confidential treatment must be granted for the following:
– the second and third lines of the first paragraph under the heading ‘(a) Internal structure and decision making’;
– the second paragraph under the heading ‘(a) Internal structure and decision making’;
– the first paragraph under the heading ‘(i) procurement of inputs/labour/production/profit distribution’;
– the paragraph under the heading ‘(ii) sales’;
– the paragraph under the heading ‘(i) Non compliance with the accrual principle’;
– the paragraph under the heading ‘(ii) Payment for purchase invoices’; and
– the paragraph under the heading ‘(iii) Offsetting of income and expenses’.
43 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
Annex A5
44 This annex contains a letter from the applicant’s representatives to the Commission in reply to the specific technical information document on the subject-matter of market economy treatment which was in Annex A4. The document in Annex A5 contains various details on the applicant’s accounting practices, particularly in relation to the accounting of its debts, its payment policies and its internal practices of offsetting income and expenses.
45 In relation to the first, second, seventh, eighth and ninth paragraphs under the heading ‘(i) Receivables’, it must be noted that they contain information of a reasonably precise and detailed nature on the applicant’s accounting practices. That purely internal information therefore does constitute a business secret of an accounting nature.
46 Likewise, it must be held that the first, second, third and fourth paragraphs under the title ‘(ii) Payables’ also contain details on the applicant’s accounting practices which are business secrets of an accounting nature.
47 Those business secrets of an accounting nature appear also in the first and second paragraphs under the heading ‘B. Findings Relating to Payment of Purchase Invoices’, and in the first, fifth and sixth paragraphs under the title ‘C. Offsetting of Income and Expenses’.
48 By contrast, the details set out in the remainder of the document are not, in themselves, secret or confidential in nature. It must be noted, in that regard, that the applicant explains neither how that information is secret or confidential, nor how disclosing that information to the intervening companies would greatly prejudice it. In the remainder of the document, the applicant presents arguments which are legal in nature and which contain, in themselves, no specific information on the accounting practices capable of being considered secret. That is the case for the third, fourth, fifth and sixth paragraphs under the heading ‘(i) Receivables’, which consist of quotations of various provisions from the accounting standards applicable in China and from the IAS standards. Similarly, the fifth paragraph under the heading ‘(ii) Payables’ contains no specific information on the applicant, apart from the number of people it employs. However, the applicant does not set out the grounds for which the number of employees it has should be considered as confidential.
49 Lastly, pages 4 and 5 of that document also contain legal argument, commenting on or interpreting the applicable accounting standards, which, apart from the first, fifth and sixth paragraphs under the heading ‘C. Offsetting of Income and Expenses’, contain no secret or confidential information in respect of the applicant.
50 Weighing up the competing interests leads to the finding that the information contained in that document, the secret and confidential nature of which is accepted, is not necessary for the exercise of the intervening companies’ procedural rights. As stated in paragraph 41 of this order, paragraph 25 of the provisional directive, as confirmed in paragraphs 12 and 13 of the contested regulation, enables the intervening companies to examine in sufficient detail the nature of that information and puts them in a position to exercise their procedural rights.
51 Confidential treatment must therefore be granted to the following passages of the document:
– the first, second, seventh, eighth and ninth paragraphs under the heading ‘(i) Receivables’;
– the first, second, third and fourth paragraphs under the heading ‘(ii) Payables’;
– the first sentence of the sixth paragraph under the heading ‘(ii) Payables’;
– the first and second paragraphs under the heading ‘B. Findings Relating to Payment of Purchase Invoices’;
– the first sentence of the first paragraph under heading ‘C. Offsetting of Income and Expenses’;
– the fifth and sixth paragraphs under the heading ‘C. Offsetting of Income and Expenses’.
52 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
Annex A6
53 Annex A6 contains the specific disclosure letter from the Commission to the applicant.
54 In that document, the Commission sets out the method for determining the normal value, the export prices and the dumping margin. In relation to those paragraphs of the document under the headings ‘1. DETERMINATION OF NORMAL VALUE’ and ‘2. DETERMINATION OF EXPORT PRICES’, the Commission has clearly not included any specific information on, or internal information of, the applicant capable of being considered as secret or confidential. In any event, the fact that the applicant’s sales within the Community were made to customers which are not linked to it appears in paragraphs 53 and 54 of the provisional regulation.
55 As regards the fifth paragraph under the heading ‘3. FAIR COMPARISON AND DUMPING CALCULATION’, the percentage of comparable transactions within the applicant’s total exports to the Community must be held to be capable of constituting a business secret of a commercial nature. Likewise, the total amount of dumping and the value of the transactions for comparable exports, both expressed in RMB, appearing in the sixth paragraph under the same heading, are also capable of being confidential in nature.
56 As to the remainder of the paragraphs under that heading, they contain merely general explanations of the method used by the Commission to determine the dumping margin and contain no secret or confidential information on the applicant.
57 In addition, in relation to the content of the document under the heading on provisional injury calculations, the different values which appear there expressed in euros are capable of being confidential, inasmuch as they can provide, directly or indirectly, information on the applicant’s exports.
58 By contrast, the Commission’s general explanations of the method applied for calculating the injury to Community industry contains no secret or confidential information.
59 Lastly, the tables included in that document contain details on the prices, costs and volume of sales, which are sensitive trade details. They are, therefore, to be considered secret or confidential.
60 Weighing up the competing interests leads to the finding that the information contained in that document, the secret and confidential nature of which is accepted, is not necessary for the exercise of the intervening companies’ procedural rights in so far as that information does not relate to the issues raised in the context of the dispute between the parties.
61 Confidential treatment must therefore be granted to the following:
– in the third line of the fifth paragraph under the heading ‘3. FAIR COMPARISON AND DUMPING CALCULATION’, the reference to the percentage;
– in the first and second lines of the sixth paragraph under the heading ‘3. FAIR COMPARISON AND DUMPING CALCULATION’, the reference to the amounts;
– the first and second indents under the heading ‘Undercutting’;
– the first, second and third indents under the heading ‘Underselling’;
– the two tables included in the document.
62 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
Annex A8
63 The first document in Annex A8 is the specific disclosure document sent to the applicant. It must therefore be noted that, contrary to the applicant’s claims, it is not a revised document containing particularly sensitive information.
64 The applicant claims that that document contains confidential information and briefly outlines the subject-matter of the information.
65 It must nevertheless be noted that the first four paragraphs of that document contain no information which may be considered secret or confidential. Those paragraphs are an introduction to the specific disclosure document and merely restate information contained in the provisional regulation, such as the provisional anti-dumping duty applied to the applicant, and the various exchanges of correspondence between the applicant and the Commission in the course of the administrative procedure.
66 Furthermore, the paragraphs included under the heading ‘1. DETERMINATION OF NORMAL VALUE’ have no additional secret or confidential nature. It should be observed, in that regard, that the method for calculating the normal value which the Commission decided to apply is set out both in paragraphs 17 and 18 of the final general disclosure document and in paragraphs 43 to 46 of the provisional regulation. That information cannot therefore be held to constitute secret or confidential information, those two documents not being confidential. Moreover, the information relating to the applicant’s domestic sales as a proportion of its export sales cannot be a trade secret, since it can inevitably be inferred from the first paragraph of Article 2(2) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended.
67 It must, in addition, be held that the paragraphs, under the headings ‘2. DETERMINATION OF EXPORT PRICES’ and ‘3. FAIR COMPARISON AND DUMPING CALCULATION’, contain no secret or confidential information. It should be noted, in particular, that the definitive anti-dumping margin appearing in the second paragraph of the heading on fair comparison and dumping calculation also appears in paragraph 36 of the final general disclosure document, for which the applicant has withdrawn its application for confidential treatment.
68 In relation to the content under the heading ‘DEFINITIVE INJURY CALCULATIONS’, it must be held that the value of exports to the Community, expressed in euros, the ex-works value in the Community of the quantities exported, and the sale value of those exports within the Community, are capable of being secrets of a commercial nature.
69 By contrast, the Commission’s general explanations of the method applied for calculating the injury caused to the Community industry do not contain any secret or confidential information.
70 Weighing up the competing interests leads to the finding that the information contained in that document, the secret and confidential nature of which is accepted, is not necessary for the exercise of the intervening companies’ procedural rights in so far as that information does not relate to the issues raised in the context of the dispute between the parties.
71 Confidential treatment must therefore be granted to the following:
– the first and second indents under the heading ‘UNDERCUTTING’;
– the first, second and third indents under the heading ‘UNDERSELLING’.
72 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
Annex A9
73 This annex contains a letter from the applicant’s representatives to the Commission in reply to final disclosure. The applicant claims that that document is confidential inasmuch as it contains details relating to its export sales and its profit margins.
74 Those amounts, expressed in euros or in RMB, of the applicant’s export sales, resulting from the various calculating methods, must be considered as business secrets of a commercial nature.
75 The applicant does not explain, however, why the profit margin decided upon for the purposes of determining the normal value should constitute secret or confidential information. It should be observed, in that regard, that the profit margin applied by the Commission does not reflect any commercial or financial information which is private to the applicant, having regard to the fact that that margin is used for the purposes of determining the normal value, which, by definition, is not based on the applicant’s own information. That information cannot therefore be a business secret.
76 Weighing up the competing interests leads to the finding that the information contained in that document, the secret and confidential nature of which is accepted, is not necessary for the exercise of the intervening companies’ procedural rights in so far as that information does not relate to the issues raised in the context of the dispute between the parties.
77 Confidential treatment must therefore be granted to the following:
– in the fifth line of the first paragraph under the heading ‘(1) Apparent Discrepancy Between the CIF Export Price Values in the Provisional and Final Disclosures’, the reference to the amounts;
– in the first and second lines of the second paragraph under the heading ‘(1) Apparent Discrepancy Between the CIF Export Price Values in the Provisional and Final Disclosures’, the reference to the amounts.
78 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
Annex A10
79 Annex A10 contains a letter in response from the Commission to the applicant’s representatives.
80 As the applicant points out, that document contains, in the second paragraph, details relating to its export sales, which are business secrets of a commercial nature.
81 Nevertheless, the remainder of the document contains no information which could be considered as secret or confidential.
82 Weighing up the competing interests leads to the finding that the information contained in that document, the secret and confidential nature of which is accepted, is not necessary for the exercise of the intervening companies’ procedural rights in so far as that information does not relate to the issues raised in the context of the dispute between the parties.
83 Confidential treatment must therefore be granted to the third and fourth sentences of the second paragraph of that document.
84 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
Annex A14
85 This annex contains a letter from the Commission sent to the applicant’s representatives.
86 As the applicant points out, that document contains explanations of the reasons why the price undertakings which it proposed were not accepted by the Commission. Those explanations contain production details and details on the business activities of the applicant, which can be business secrets of a commercial or competition-related nature.
87 By contrast, the Commission’s explanations of the reasons why it altered its decision in relation to the granting of economy market treatment to the applicant contains no information which could be considered secret or confidential.
88 Weighing up the competing interests leads to the finding that the information contained in that document is not necessary for the exercise of the intervening companies’ procedural rights in so far as that information does not relate to the issues raised in the context of the dispute between the parties.
89 Confidential treatment must therefore be granted for the second paragraph under the heading ‘B. Non-Consideration of the European Commission of Request for Price Undertakings’.
90 The application for confidential treatment in respect of the remainder of the document must be rejected, the latter not being secret or confidential.
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The applicant’s request for confidential treatment is granted, with regard to the intervening parties Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scal SpA, to the extent that it relates to the following matters:
– in relation to Annex A4:
– the second and third lines of the first paragraph under the heading ‘(a) Internal structure and decision making’;
– the second paragraph under the heading ‘(a) Internal structure and decision making’;
– the first paragraph under the heading ‘(i) procurement of inputs/labour/production/profit distribution’;
– the paragraph under the heading ‘(ii) sales’;
– the paragraph under the heading ‘(i) Non compliance with the accrual principle’;
– the paragraph under the heading ‘(ii) Payment for purchase invoices’; and
– the paragraph under the heading ‘(iii) Offsetting of income and expenses’;
– in relation to Annex A5:
– the first, second, seventh, eighth and ninth paragraphs under the heading ‘(i) Receivables’;
– the first, second, third and fourth paragraphs under the heading ‘(ii) Payables’;
– the first sentence of the sixth paragraph under the heading ‘(ii) Payables’;
– the first and second paragraphs under the heading ‘B. Findings Relating to Payment of Purchase Invoices’;
– the first sentence of the first paragraph under heading ‘C. Offsetting of Income and Expenses’;
– the fifth and sixth paragraphs under the heading ‘C. Offsetting of Income and Expenses’;
– in relation to Annex A6:
– in the third line of the fifth paragraph under the heading ‘3. FAIR COMPARISON AND DUMPING CALCULATION’, the reference to the percentage;
– in the first and second lines of the sixth paragraph under the heading ‘3. FAIR COMPARISON AND DUMPING CALCULATION’, the reference to the amounts;
– the first and second indents under the heading ‘Undercutting’;
– the first, second and third indents under the heading ‘Underselling’;
– the two tables included in the document;
– in relation to the specific disclosure document in Annex A8:
– the first and second indents under the heading ‘UNDERCUTTING’;
– the first, second and third indents under the heading ‘UNDERSELLING’;
– in relation to Annex A9:
– in the fifth line of the first paragraph under the heading ‘(1) Apparent Discrepancy Between the CIF Export Price Values in the Provisional and Final Disclosures’, the reference to the amounts;
– in the first and second lines of the second paragraph under the heading ‘(1) Apparent Discrepancy Between the CIF Export Price Values in the Provisional and Final Disclosures’, the reference to the amounts;
– in relation to Annex A10, the third and fourth sentences of the second paragraph in that document;
– in relation to Annex A14, the second paragraph under the heading ‘B. Non-Consideration of the European Commission of Request for Price Undertakings’.
2. The remainder of the application for confidential treatment is rejected.
3. A non-confidential version of Annexes A4, A5, A6, A8, A9, A10 and A14, in accordance with the first two paragraphs of this operative part, produced by the applicant within the time-limits set by the Registrar, shall be served by the Registrar on the intervening parties Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scal SpA.
4. The intervening parties Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scal SpA shall be granted a period of time to submit, in writing, their additional observations in support of their heads of claim.
5. The costs are reserved.
Luxembourg, 18 November 2008.