Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT

5 July 2010 (*)

(Confidentiality)

In Case T-304/08,

Smurfit Kappa Group plc, established in Dublin (Ireland), represented by T. Ottervanger and E. Henny, lawyers,

applicant,

v

European Commission, represented by B. Martenczuk and C. Urraca Caviedes, acting as Agents,

defendant,

supported by

Propapier PM 2 GmbH, formerly Propapier PM2 GmbH & Co. KG, established in Eisenhüttenstadt (Germany), represented by H. Niemeyer and C. Herrmann, lawyers,

intervener,

ACTION for the annulment of Commission Decision C(2008) 1107 of 2 April 2008, declaring compatible with the common market national regional aid which the German authorities intend to grant to Propapier PM2 for the construction of a paper mill at Eisenhüttenstadt (region of Brandenburg-Nordost) (State aid N 582/2007 - Germany),

THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT

makes the following

Order

Procedure

1 By application lodged at the Registry of the Court on 5 August 2008, the applicant, Smurfit Kappa Group plc, seeks the annulment of Commission Decision C(2008) 1107 of 2 April 2008, declaring compatible with the common market national regional aid which the German authorities intend to grant to Propapier PM2 for the construction of a paper mill at Eisenhüttenstadt (region of Brandenburg-Nordost) (State aid N 582/2007 - Germany) ('the contested decision').

2 On 12 December 2008, Propapier PM 2 submitted an application for leave to intervene in support of the form of order sought by the Commission.

3 On 6 February 2009, the applicant requested that information in Tables 1 to 3 and in Figures 2 and 7 in Annex A 2.1 to the application ('the information at issue'), in particular, be treated as confidential with regard to Propapier PM 2 in the event that the latter was granted leave to intervene.

4 By order of the President of the Third Chamber of the Court of 21 April 2009, Propapier PM 2 was granted leave to intervene in support of the form of order sought by the Commission.

5 On 13 May 2009, the intervener objected to the request for confidential treatment submitted by the applicant in respect of the information at issue.

The application for confidential treatment

Arguments of the parties

6 The applicant submits that the information at issue was conceived by London Economics, a consultancy firm, on the basis of market research undertaken by the applicant and internal intelligence that is not publicly available.

7 The intervener contends that the applicant has not substantiated its request for confidential treatment to the requisite legal standard. The claim that the information at issue is based on market research undertaken by the applicant and on internal intelligence that is not available to the public is not enough to establish that it qualifies as business secrets. In any event, the interest of the intervener in exercising its rights in the present judicial proceedings outweighs the interest of the applicant in not disclosing that information. Moreover, the request for confidential treatment submitted by the applicant is not sufficiently circumscribed and is, for that reason, disproportionate.

Findings of the President

8 According to Article 116(2) of the Rules of Procedure, interveners are to receive a copy of every document served on the parties, but the President may nevertheless, on application by one of the parties, omit secret or confidential documents.

9 That provision lays down the principle that interveners are to receive a copy of every document served on the parties, and permits only by way of derogation that certain secret or confidential documents or information not be sent to them (see order of the President of the Eighth Chamber of the Court of 2 March 2010 in Case T-336/07 Telefónica and Telefónica de España v Commission, not published in the ECR, paragraph 26 and the case-law cited).

10 The party who makes an application for confidentiality has the task of specifying the documents or information covered and of stating, in a manner that is sufficiently detailed, the reasons why they are confidential (see order in Telefónica and Telefónica de España v Commission, paragraph 9 above, paragraph 27 and the case-law cited).

11 The President has the task first of all of examining whether each of the documents and pieces of information whose confidentiality is disputed and in relation to which an application for confidential treatment has been submitted is secret or confidential (see order in Telefónica and Telefónica de España v Commission, paragraph 9 above, paragraph 32 and the case-law cited).

12 The requirement for the applicant to state reasons in the application for confidential treatment must be assessed in the light of the secret or confidential nature of each of the relevant documents or pieces of information. A distinction must be drawn between, on the one hand, 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, on the other, documents or information which may be secret or confidential, for a reason that is for the applicant to furnish. 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 nature (see order in Telefónica and Telefónica de España v Commission, paragraph 9 above, paragraphs 33 and 34 and the case-law cited).

13 As regards business secrets, that term comprises, in particular, information of a commercial, competition-related, financial or accounting nature, where that information is not normally available to third parties outside the undertaking and which, because it is recent, cannot be considered to be historic. Information can lose its confidential nature where the public at large or specialist circles can have access to it (see, to that effect, order of the President of the Seventh Chamber of the Court of 14 October 2009 in Case T-353/08 vwd Vereinigte Wirtschaftsdienste v Commission, not published in the ECR, paragraph 71 and the case-law cited). Unless there is evidence of a special interest in protecting its confidentiality, information that is five or more years old is generally historic (see, to that effect, order of the President of the Sixth Chamber of the Court of 8 October 2009 in Case T-314/06 Whirlpool Europe v Council, not published in the ECR, paragraph 37 and the case-law cited).

14 Where the President's examination leads him to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, he has the task, secondly, of assessing and weighing up the competing interests, for each document and piece of information. 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. In any event, the applicant 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 necessary for the exercise of the interveners' procedural rights and, consequently, must be disclosed to them (see order in Telefónica and Telefónica de España v Commission, paragraph 9 above, paragraphs 35 to 37 and the case-law cited).

15 It is in the light of those principles that the requests for confidential treatment in the present case should be examined.

16 To begin with, it should be stated that the request for confidential treatment of the information at issue provides exceedingly few reasons. It does not contain any specific explanation of the reasons why disclosure of that information would harm interests that are worthy of protection and the applicant does not even make an express request for the protection of business secrets. Nevertheless, in accordance with the case-law cited in paragraph 12 above, it must be examined whether the information at issue can be considered to be business secrets, by its nature, or confidential, on the ground that it is purely internal.

17 In the first place, Table 1 shows aggregated figures on production capacity for corrugated case materials in the entire European Economic Area (EEA). Such information is not peculiar to the applicant and does not make it possible to calculate the market shares or production capacity utilisation rates of the respective undertakings that compete in the EEA. Therefore, the information cannot be considered to be confidential by its nature within the meaning of the case-law referred to in paragraph 12 above. Given that the applicant did not provide any particular justification as to the confidential nature of the information, in support of its application, it must be held that it cannot be treated as confidential with regard to the intervener.

18 Furthermore, the indication of the source of the information in Table 1 cannot be the subject of special protection, in the absence of any details on that point from the applicant. On the contrary, as a rule, it is useful for the purposes of establishing the facts in the context of proceedings inter partes to be able to discuss the reliability of data taken into account by one of the parties.

19 Therefore, and without there being any need to weigh in the balance the interests of the applicant and of the intervener, the request for confidential treatment in respect of the information in Table 1 must be rejected.

20 In the second place, Table 2 shows, for each undertaking producing corrugated case materials in the EEA, the creation and removal of production capacity between October 2000 and March 2007.

21 It is clear from the body of the report by London Economics, which constitutes Annex A 2.1, that at least some of the information in Table 2 is available to the public. That is the case, in particular, for the increases in production capacity financed through State aid (Annex A 2.1, p. 91).

22 As regards, first, the data that do not relate to the applicant's plants, they are therefore the result, at least in part, of the compilation of public data. Furthermore, in so far as they are based, in part, on the applicant's estimates, they are not, in that case, sufficiently reliable to be regarded as business secrets of the undertakings concerned. The request for confidential treatment submitted by the applicant can thus not be successful in respect of that information.

23 As regards, second, the data on the applicant's plants, it has not been shown anywhere that the dates and the changes in production capacity of the applicant's plants have been made public. Therefore, such data, by their nature, must be considered to be confidential. Regard should also be had to the fact that the applicant requested confidential treatment for the summary of that information, which appears on page 8 of the report by London Economics (Annex A 2.1, p. 92), and that the intervener has not objected to that last request.

24 However, it must be noted that information that relates to the period before 2005 is historic and that the applicant has not provided any particular justification to show that it maintained an interest in the protection of that information.

25 Therefore, the information on the applicant's plants relating to the period after 1 January 2005 that appears in the last two columns of Table 2 is confidential. It is therefore appropriate to weigh in the balance the interest of the applicant in the protection of that information and the interest of the intervener in gaining knowledge of it in order to exercise its procedural rights.

26 In that regard, the figures relating to evolution of production capacity are relevant for the purposes of assessing the value of the applicant's arguments. In fact, the applicant challenges the Commission's analysis of the market in the contested decision. The applicant also contests the analysis of the effects of the State aid that the Federal Republic of Germany intended to grant to the intervener. However, the applicant's argument relates to the structure of the market in general and the particular characteristics of the intervener, and not to detailed information on changes in its production capacity. In those circumstances, the confidential treatment requested by the applicant in respect of its own plants for the period after 1 January 2005 does not have the effect of denying the intervener the exercise of its procedural rights.

27 As regards, third, the indication of the source of the information in Table 2, that indication cannot be the subject of special protection, in the absence of any details on that point from the applicant.

28 Therefore, it is appropriate to grant the request for confidential treatment in respect of the information in Table 2 only in relation to the information which relates to the applicant, appears in the last two columns of that table and relates to the period after 1 January 2005.

29 In the third place, the applicant has requested confidential treatment only in respect of some of the information in Table 3. That table measures the impact, on the market for corrugated case materials and per type of product, of an increase in the production capacity of the intervener brought about by the State aid whose payment is envisaged in the contested decision.

30 First, the data in that table concern the entire market and the applicant does not maintain, in support of its request for confidential treatment, that they make it possible to deduce the structure of that market, or the market shares of the applicant and its competitors, or any other sensitive commercial information. In that respect, even if it were accepted that the data on the market as a whole are not available to the public, the data relating to 2004 are historic and the applicant has not put forward any argument to show that it maintains an interest in opposing their disclosure to the intervener.

31 Second, in the absence of any details from the applicant, the indication of the source of the information at issue cannot be the subject of special protection.

32 It follows that the request for confidential treatment in respect of the obscured information in Table 3 must be rejected.

33 In the fourth place, Figure 2 shows aggregated data on the entire production capacity for corrugated case materials installed in Germany and estimates of how production capacity would have evolved in the absence of State aid.

34 First, the indication of the source of the information in Figure 2 cannot be the subject of special protection, in the absence of any details on that point from the applicant.

35 Second, it must be noted that these data are, in part, data from the professional association 'Groupement Ondulé' and, in part, the applicant's own estimates. As the case-law cited in paragraph 13 above has acknowledged, information to which the public at large or specialist circles can have access cannot be treated as confidential. Furthermore, as regards the applicant's estimates, such data are not certain and the applicant does not submit that they make it possible to deduce information which is peculiar to the applicant or which concerns specifically the other undertakings present on the market. In addition, the data that relate to the period before 2005 are historic.

36 Consequently, the request for confidential treatment in respect of Figure 2 must be rejected.

37 In the fifth place, Figure 7 shows the evolution of the sales price for corrugated case materials minus recycled raw materials and energy.

38 First, it is clear from the body of the report that constitutes Annex A 2.1 to the application and from the note below Figure 2, for which the applicant has not requested confidential treatment, that this is an estimate relating to aggregated data on the profitability of the corrugated case materials' industry in Germany. The applicant does not submit, in support of its request for confidential treatment, that those data make it possible to deduce the structure of that market, or the market shares of the applicant and its competitors, or any other commercially sensitive information. In that respect, even if it were accepted that the data on the market as a whole are not available to the public, the data relating to 2004 are historic and the applicant has not put forward any argument to show that it maintains an interest in opposing their disclosure to the intervener.

39 Second, the indication of the source of the information in Figure 7 cannot be the subject of special protection, in the absence of any details on that point from the applicant.

40 Therefore, the request for confidential treatment in respect of Figure 7 must be rejected.

On those grounds,

THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT

hereby orders:

1. The request for confidential treatment made by Smurfit Kappa Group with regard to Propapier PM 2 is granted in relation to that information in the last two columns of Table 2 of Annex A 2.1 to the application which relates to the plants of Smurfit Kappa Group and to the period after 1 January 2005.

2. The request for confidential treatment made by Smurfit Kappa Group with regard to Propapier PM 2 is rejected in so far at it concerns:

- the information in Tables 1 and 3 and Figures 2 and 7 of Annex A 2.1 to the application, including the indication of the source of that information;

- the information in Table 2 of Annex A 2.1 to the application, including the indication of the source of that information, except however the information referred to in point 1 above.

3. A non-confidential version of the documents in the file, consistent with points 1 and 2 of this operative part and communicated by Smurfit Kappa Group within the time-limit set by the Registrar, shall be served by the Registrar on Propapier PM 2.

4. Costs are reserved.

Luxembourg, 5 July 2010.

* Language of the case: English.

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