ORDER OF THE PRESIDENT OF THE FIRST CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT
8 March 2023(*)
(Confidentiality – Challenge by the intervener)
In Case T‑671/19,
Qualcomm, Inc., established in San Diego, California (United States of America), represented by M. Davilla, M. Pinto de Lemos Fermiano Rato, M. English and A. Kontosakou, lawyers,
applicant,
v
European Commission, represented by H. van Vliet, G. Conte, M. Farley and C. Urraca Caviedes, acting as Agents,
defendant,
supported by
Nvidia Corp., represented by M. Dolmans, lawyer, P. Stuart, Barrister, and by W. Lin, Solicitor,
intervener,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2019) 5361 final of 18 July 2019 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement [Case AT.39711 – Qualcomm (predation)] and, in the alternative, for a reduction of the fine imposed on it in that decision,
THE PRESIDENT OF THE FIRST CHAMBER, EXTENDED COMPOSITION, OF THE GENERAL COURT
makes the following
Order
Procedure
1 By application lodged at the Registry of the General Court on 1 October 2019, the applicant, Qualcomm Inc. (‘Qualcomm’) brought an action for annulment of Commission Decision C(2019) 5361 final of 18 July 2019 relating to proceedings under Article 102 [TFEU] and Article 54 of the EEA Agreement (Case AT.39711 – Qualcomm (predation)) (‘the contested decision’), and, in the alternative, for a reduction of the fine imposed on it in that decision.
2 By document lodged at the Court Registry on 17 March 2020, Nvidia Corp. (‘Nvidia’) applied for leave to intervene in the present proceedings in support of the form of order sought by European Commission.
3 The applicant and the Commission requested confidential treatment, vis-à-vis Nvidia, of certain information contained in the replies to the General Court’s questions.
4 By letter of 16 February 2023, Nvidia contested the confidentiality of various passages which were redacted in the non-confidential versions of the parties’ replies to the General Court’s questions.
The requests for confidential treatment
5 In order to examine the applications for confidential treatment submitted by the main parties it is appropriate, first, to recall the points of principle concerning the treatment of applications for confidentiality, second, to indicate the subject matter of the applications for confidential treatment submitted by the main parties and contested by the intervener, and third, to carry out the assessment of that material.
Points of principle
6 According to Article 144(7) of the Rules of Procedure of the General Court, ‘if the application to intervene is granted, the intervener shall receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication pursuant to paragraph 5 [of that article]’.
7 That provision permits only by way of derogation that certain secret or confidential documents or information may be excluded from communication to the intervener (see, to that effect, orders of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 13, and of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 11).
8 In that regard, in the first place, it is clear from settled case-law, the substance of which is reproduced in paragraph 182 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, that the party submitting a request for confidential treatment must accurately identify the particulars or passages to be excluded, that that request must state the reasons for which each of those particulars or passages is regarded as confidential and that failure to provide such information may result in the request being refused by the Court (see, to that effect, orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12; of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 36; and of 8 October 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:770, paragraph 13).
9 In turn, the challenge to confidentiality brought by an intervener must relate to precise items of the procedural documents which have been redacted and indicate the reasons for which confidentiality with regard to those items should be refused (see, to that effect, orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 14, and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 17).
10 In so far as an application presented under Article 144(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 the confidentiality of which is disputed, and in relation to which an application for confidential treatment has been made, are secret or confidential (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 15; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 15; and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 19).
11 In this respect, 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 of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 16; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 16; and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 20).
12 Therefore, the secret or confidential nature 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 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 17; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 17; and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 21).
13 On the other hand, information which was secret or confidential, but is at least five years old, must as a rule, on account of the passage of time, be considered historical, and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes essential elements of its commercial position or that of interested third parties (see judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P EU:C:2017:205, paragraph 64; and orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 60, and of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraph 65). As a result, it is the applicant who bears the burden of proving the confidentiality of the historical material for which it requests confidential treatment from the Court (see, to that effect, orders of 13 January 2005, Deutsche Post v Commission, T‑266/02, not published, paragraph 47, and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 36).
14 Moreover, some circumstances may lead to the conclusion that a request for confidential treatment of an item of information in the case file is not justified. That is the case, for example, for information which is already public or to which the general public or certain specialist circles have access (see, to that effect, orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 56, and of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 60), for information which is not sufficiently specific or precise to reveal confidential data (see, to that effect, order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 59), or for information which is largely apparent or may be deduced from other information which is legitimately available to the interested parties (see, to that effect, order of 8 May 2012, Spira v Commission, T‑108/07, not published, EU:T:2012:226, paragraph 54 and the case-law cited).
15 Finally, it should be borne in mind that, according to settled case-law, when the same information is reproduced a number of times in the pleadings and a party neglects to request that each of the passages in which it appears be treated confidentially, so that that information will in any event be disclosed to the interveners, the request concerning it can only be refused, given that it is pointless (see order of 29 March 2017, Slovak Telekom v Commission, EU:T:2017:258 paragraph 37 and the case-law cited).
16 Against this background, where the examination leads the President of the Chamber before which the case is pending to conclude that information in the case file in respect of which confidential treatment is expressly and precisely contested is in fact confidential, it is incumbent on him or her to strike a balance between the legitimate interest of the party seeking to have that confidentiality preserved in not having those secrets disclosed and the equally legitimate concern of the parties seeking to have that confidentiality withdrawn in having the information necessary for the purpose of being fully in a position to assert their rights and to state their case before the EU Courts (order of 11 April 2019, Google and Alphabet v Commission T‑612/17, EU:T:2019:250, paragraph 21 and the case-law cited).
17 In any event, the main parties 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 they decided to place on the file appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 20; of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 21; and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 25).
18 In the present case, the merits of the application for confidential treatment must be examined in the light of those principles.
The subject matter of the application for confidential treatment
19 As a preliminary point, it must be noted that when a party makes an application under Article 144(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 of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 13, and of 14 December 2018, Ireland v Commission, T‑778/16, not published, EU:T:2018:1019, paragraph 16).
20 Against this background, the Commission’s request for confidential treatment that is contested by the intervener concerns certain information contained in the Commission’s replies to the General Court’s written questions of 2 December 2022.
21 Qualcomm’s request for confidential treatment that is contested by the intervener concerns certain information contained in Qualcomm’s replies to the General Court’s written questions of 2 December 2022, as well as in the Commission’s replies to the General Court’s written questions of 2 December 2022, including some of its annexes.
22 In respect of these requests, the intervener disputes, expressly and with a specific reason for each piece of information, the confidentiality of the following items:
– as regards the Commission’s replies to the written questions, the redacted information in paragraph 8(i)a, paragraph 8(i)b, paragraph 8(ii)e, paragraph 8(ii)g, paragraph 8(ii)l, paragraph 8(ii)m, paragraph 8(ii)n, paragraph 8(ii)o, paragraph 8(ii)p, paragraph 8(ii)q, paragraph 8(ii)r, paragraph 8(ii)s, paragraph 8(ii)u, paragraph 8(ii)y, paragraph 8(ii)z, paragraph 8(ii)aa, paragraph 8(ii)bb, paragraph 8(ii)cc, paragraph 8(ii)dd, paragraph 8(ii)ee, paragraph 8(ii)ff, paragraph 8(ii)hh, paragraph 9, paragraph 17, first indent, paragraph 17, second indent, and paragraph 17, third indent (in fact, the information redacted in the fourth indent of paragraph 17, as no confidential information has been redacted in the third indent), question 3, paragraphs 18 to 19, question 6, paragraphs 31 to 35, paragraphs 38 to 47, footnote 12, paragraph 49, the image on page 15, paragraphs 50 to 52, footnote 14, paragraphs 58 to 60, paragraph 60.a, paragraph 60.b, paragraph 62, and paragraph 65;
– as regards Qualcomm’s replies to the written questions, the redacted information in paragraphs 9 to 12, footnote 12, footnotes 21 to 23, paragraphs 14 to 23, footnotes 26 to 28, footnote 30, footnote 32, footnote 35, footnote 37, footnote 39, footnote 41 and paragraph 24;
– as regards Annex H.2 to the Commission’s replies to the written questions, the redacted information in page 10;
– as regards Annex H.3 to the Commission’s replies to the written questions, the redacted information in pages 11 to 13;
– as regards Annex H.4 to the Commission’s replies to the written questions, the redacted information in pages 14 to 36;
– as regards Annex H.5 to the Commission’s replies to the written questions, the redacted information in pages 38 to 40;
– as regards Annex H.6 to the Commission’s replies to the written questions, the entirety of Qualcomm’s confidentiality claims.
23 As has been recalled in paragraphs 27 to 33 above, it is necessary, as a first step, to examine the confidential nature or otherwise of the documents and information for which confidential treatment is disputed by Nvidia, then, as a second step, to weigh up the interests of the intervener with regard to the documents and information the confidential nature of which will have been found in advance.
24 As a preliminary, overarching point, it must be noted 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, he or she has the task of examining whether the document or information in question is in fact secret or confidential (see, to that effect, order of 22 February 2005, Hynix Semiconductor Inc. v Council, T‑383/03, EU:T:2005:57, paragraph 40 and the case-law cited). Accordingly, any argument of the applicant to this effect is deprived of merit and must therefore be rejected.
Information of public nature for which confidentiality cannot be found
25 As noted in paragraph 32 above, a request for confidential treatment of an item of information which is already public is not justified.
26 Accordingly, confidential treatment cannot be granted in respect of the meaning of HSPA+, redacted in footnote 21 of Qualcomm’s replies to the General Court questions.
Information of a historical nature for which confidentiality cannot be found
27 As noted in paragraph 30 above, in the case of information which has been secret or confidential but is five or more years old, the applicant must demonstrate that, despite its age, that information still constitutes an essential element of its commercial position or of that of the third person concerned. It is therefore for the applicant to show that disclosure of the passages at issue to the intervener, notwithstanding their historical nature, would be liable to harm its commercial interests.
28 As regards the material for which confidentiality is requested, the applicant merely claims, in essence, that disclosure of such commercially sensitive information, despite the passage of time, would provide insights into Qualcomm’s pricing, sales, commercial, legal or business strategy that remain relevant today, and that disclosure of such information could negatively impact Qualcomm’s commercial relationships and position in ongoing and/or future negotiations with its customers, resulting in serious harm to Qualcomm. It must be noted, however, that the reasons put forward for each redaction are drafted according to standardised and vague formulas that fail to explain how the redacted information, which in most cases patently refers to the specific economic and commercial context of the years 2009 to 2011, would, if disclosed, cause harm to the applicant. It follows that, in the absence of any specific reasons showing that disclosure of the information at issue would, notwithstanding its historical nature, be liable to harm Qualcomm’s commercial interests and subject to the carve-outs set out in paragraph 51 below, confidential treatment cannot be granted in respect of the following:
– the information relating to captive supplies during the relevant period, redacted in footnote 12 of Qualcomm’s replies to the General Court questions;
– the redacted information contained in paragraphs 10, 11, 12, 14, in question 3, in paragraphs 16, 17, 18, 19, 20, 21, 22, 23 and in footnotes 26, 27, 28, 30, 32, 35, 37, 39 and 41 of Qualcomm’s replies to the General Court questions;
– the identity of third parties replying to a request for information of 2015, redacted in paragraphs 8(i)a, 8(i)b, 8(ii)e, 8(ii)g, 8(ii)l, 8(ii)m, 8(ii)n, 8(ii)o, 8(ii)p, 8(ii)q, 8(ii)r, 8(ii)s, 8(ii)u, 8(ii)y, 8(ii)z, 8(ii)aa, 8(ii)bb, 8(ii)cc, 8(ii)dd, 8(ii)ee, 8(ii)ff and 8(ii)hh, of the Commission’s replies to the General Court questions;
– the identity of third parties replying to a request for information of 2010, redacted in paragraph 9 of the Commission’s replies to the General Court questions;
– the identity of third parties, redacted in paragraph 17, first, second and fourth indents of the Commission’s replies to the General Court questions;
– the identity of third party, redacted in question 3 of the Commission’s replies to the General Court questions;
– the identity of third parties, redacted in paragraphs 18 and 19 of the Commission’s replies to the General Court questions;
– the redacted information contained in question 6 and in paragraphs 31, 32, 33 and 34 of the Commission’s replies to the General Court questions;
– the redacted information contained in question 7, in paragraphs 35, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, in footnotes 12 and 14 and the image on page 15, in Annex H.4 at pages 14 to 36, in Annex H.5 at pages 39 and 40, in Annex H.6 of the Commission’s replies to the General Court questions. In any event, it must also be observed that this information seems critical for the intervener to understand the Commission’s cost reconstruction, which lies at the core of the contested decision;
– the redacted information contained in paragraphs 58, 59, 60, 60.a, 60.b, 62 and 65 of the Commission’s replies to the General Court questions. In any event, it must also be observed that this information seems critical for the intervener to understand the Commission’s cost reconstruction, which lies at the core of the contested decision;
– the redacted information contained in annex H.2 at page 10 and in annex H.3 at pages 11 to 13 of the Commission’s replies to the General Court questions. In any event, it must also be observed that this information seems critical for the intervener to understand the Commission’s price reconstruction, which lies at the core of the contested decision.
Information which is not sufficiently specific or precise to reveal confidential data
29 As noted in paragraph 14 above, a request for confidential treatment of an item of information which is not sufficiently specific or precise to reveal confidential data is not justified.
30 Accordingly, confidential treatment cannot be granted in respect of the following:
– the reference of the financial analysis redacted in footnote 22 of Qualcomm’s replies to the General Court questions;
– the redacted word in footnote 23 and paragraphs 15 and 24 of Qualcomm’s replies to the General Court questions. In any event, it must also be observed that the same word is reproduced in the same context in paragraph 286 of the application, for which the applicant neglected to make a request for confidentiality. In view of the case law referred to in paragraph 14 above, the request for confidential treatment of this word in Qualcomm’s replies to the General Court questions is therefore pointless.
Information which will in any event be disclosed to the intervener
31 It follows from the case law referred to in paragraph 15 above that when the same information is reproduced a number of times in the pleadings and a party neglects to request that each of the passages in which it appears be treated confidentially, so that that information will in any event be disclosed to the interveners, the request concerning it can only be refused, given that it is pointless. In view thereof, the confidential treatment cannot be granted in respect of the following:
– the specific designation contained in paragraph 9 of Qualcomm’s replies to the General Court questions, given that such a specific designation appears in any case, for instance in paragraphs 226, 229, 230 or 246 of the non-confidential version of the application.
Information for which confidentiality must be found
32 It must be noted that the following do not appear to be related to the factual context of the case and, accordingly, to be of merely historical value; in fact, because of their general nature, they may provide some intelligence of Qualcomm’s current decision-making processes and dynamics:
– the redacted statement regarding Qualcomm’s licensing practices in paragraph 8(i)(a) of the Commission’s replies to the General Court questions;
– the information of financial or accounting nature redacted in paragraph 38 of the Commission’s replies to the General Court questions.
33 Accordingly, the redacted information referred to in paragraph 32 is still, despite its age, to be considered confidential.
34 In addition, it must be noted that disclosure of personal details, such as the name and/or the title, that would reveal the identity of individuals may undermine their privacy and their right to protection of personal data. Such details, therefore, are by their nature confidential (see, to that effect, order of 8 October April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:770, paragraph 35).
35 Accordingly, the name and/or title indicated in Annex H.5 at page 38 is to be considered confidential.
The weighing up of the competing interests for the documents and information the confidential nature of which has been found
36 It is now appropriate to proceed with the weighing up of the competing interests for the various documents and pieces of information the confidential nature of which has been found by the Court, in accordance with the case-law cited in paragraph 16 above.
37 The information referred to in the first indent of paragraph 32, regarding Qualcomm’s licencing practice, does not seem necessary to enable the intervener to understand the applicant’s arguments. It must therefore be concluded that confidential treatment is to be granted to this information.
38 The information referred to in the second indent of paragraph 32, regarding financial or accounting nature redacted in paragraph 38 of the Commission’s replies to the General Court questions seems critical for the intervener to better understand the Commission’s cost reconstruction, which lies at the core of the contested decision. Moreover, the applicant only explains in a very vague and general way the reasons why it considers that such information should be treated as confidential vis-à-vis the intervener. In view of the foregoing, it must be concluded that no confidential treatment is to be granted to this information.
39 The information related to the name and title of the natural person, indicated in Annex H.5 at page 38 seems relevant for the intervener to understand the applicant’s arguments and the Commission’s defence concerning the existence of exclusionary intent, particularly in light of the fact that the applicant argues that relevant statements on intent were only attributable to a low ranking employee without pricing authority or influence. It must therefore be concluded that no confidential treatment is to be granted to this information.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT
hereby orders:
1. The requests for confidential treatment put forward by the applicant and by the European Commission, and contested by the intervener, are dismissed in so far as they relate to the following information, as redacted in the consolidated non-confidential versions of the relevant documents produced by the applicant and the Commission:
– as regards the applicant’s replies to the General Court’s written questions of 2 December 2022, the information redacted in paragraphs 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24, in footnotes 12, 21, 22, 23, 26, 27, 28, 30, 32, 35, 37, 39 and 41 and in question 3;
– as regards the Commission’s replies to the General Court’s written questions of 2 December 2022, the information redacted in paragraphs 8(i)a, with the exception of the redacted statement regarding Qualcomm’s licensing practices, 8(i)b, 8(ii)e, 8(ii)g, 8(ii)l, 8(ii)m, 8(ii)n, 8(ii)o, 8(ii)p, 8(ii)q, 8(ii)r, 8(ii)s, 8(ii)u, 8(ii)y, 8(ii)z, 8(ii)aa, 8(ii)bb, 8(ii)cc, 8(ii)dd, 8(ii)ee, 8(ii)ff and 8(ii)hh, 9, 17, first, second and fourth indents, 18, 19, 31, 32, 33, 34, 35, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, 58, 59, 60, 60.a, 60.b, 62 and 65, in footnotes 12 and 14, in question 3, 6 and 7, as well as the image on page 15;
– as regards Annex H.2 to the Commission’s replies to the General Court’s written questions of 2 December 2022
– as regards Annex H.3 to the Commission’s replies to the General Court’s written questions of 2 December 2022
– as regards Annex H.4 to the Commission’s replies to the General Court’s written questions of 2 December 2022
– as regards Annex H.5 to the Commission’s replies to the General Court’s written questions of 2 December 2022
– as regards Annex H.6 to the Commission’s replies to the General Court’s written questions of 2 December 2022
2. The requests for confidential treatment of the replies to the General Court’s written questions of 2 December 2022 are granted in accordance with point 1 of this operative part.
3. New consolidated non-confidential versions of the applicant’s and of the Commission’s replies to the General Court’s written questions of 2 December 2022, compatible with points 1 and 2 of this operative part, shall be submitted by the main parties within a period to be fixed by the Registrar, who shall serve those new versions on the intervener.
4. The costs are reserved.
Luxembourg, 8 March 2023.