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

ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT

27 November 2019 (*)

(Confidentiality — Challenge by an intervener)

In Case T‑164/19,

AQ, represented by L. Levi and N. Flandin, lawyers,

applicant,

v

European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu‑LISA), represented by M. Chiodi, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,

defendant,

supported by

Council of the European Union, represented by R. Meyer and M. Alver, acting as Agents,

intervener,

ACTION under Article 270 TFEU seeking, first, annulment of the decision of eu‑LISA of 8 May 2018 to terminate the applicant’s contract as a member of the temporary staff without notice and, second, compensation for the loss which the applicant claims to have suffered as a result of that act,

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT

makes the following

Order

 Procedure

1        By application lodged at the General Court Registry on 14 March 2019, the applicant, AQ, brought the present action seeking, first, annulment of the decision of the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu‑LISA) of 8 May 2018 to terminate her contract as a member of the temporary staff without notice and, second, compensation for the loss which she claims to have suffered as a result of that act.

2        By a separate document of the same date, lodged at the Court Registry pursuant to Article 66 of the Rules of Procedure of the General Court, the applicant applied for anonymity and requested that certain information not be made public. By decision of 29 April 2019, the Court (Eighth Chamber) granted that application for anonymity.

3        Eu-LISA lodged its defence on 6 June 2019.

4        By document lodged at the Court Registry on 27 June 2019, the Council of the European Union applied for leave to intervene in the present case in support of the form of order sought by eu‑LISA.

5        By letter of 10 July 2019, the Court Registry served the defence on the applicant and informed her that it had been decided, on the basis of Article 83(1) of the Rules of Procedure, that a second exchange of procedural documents was unnecessary.

6        By document lodged at the Court Registry on 25 July 2019 and supplemented the following day by an addendum, the applicant requested that certain information in the application and several annexes thereto be treated as confidential vis-à-vis the Council (‘the application for confidential treatment’), if that institution were to be granted leave to intervene. To that end, she attached a non-confidential version of the application and its annexes.

7        By order of 16 September 2019, AQ v eu‑LISA (T‑164/19, not published), the Council was granted leave to intervene in support of the form of order sought by eu‑LISA. In accordance with Article 144(2) of the Rules of Procedure, that order provisionally restricted the communication of the procedural documents to the Council to their non-confidential versions, pending any objections by that institution to the application for confidential treatment.

8        By document lodged at the Court Registry on 2 October 2019, the Council challenged the application for confidential treatment.

9        By decision of the President of the Court of 17 October 2019, owing to the partial renewal of terms of office in the Court, the present case was assigned to a new Judge-Rapporteur sitting in the Seventh Chamber.

 The application for confidential treatment

 Preliminary observations

10      Article 144(7) of the Rules of Procedure provides:

‘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.’

11      That provision lays down the principle that interveners are to receive all the procedural documents served on the parties and permits only by way of derogation that certain secret or confidential documents or information may be excluded from that communication (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 11, and of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 12).

12      In that regard, it is for the party making an application for confidentiality to specify the documents or information referred to and to duly state the reasons for their confidential nature (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12, and of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 13).

13      In so far as an application made under Article 144(2) of the Rules of Procedure is disputed, the President is required, first of all, to examine whether each of the documents and items of information, the confidentiality of which is disputed and in respect of which an application for confidential treatment has been made, is secret or confidential (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 15, and of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 16).

14      In that regard, a distinction must be drawn between, on the one hand, information which is inherently secret and, on the other, documents or information likely to be secret or confidential for a reason which it is for the applicant to adduce. Thus, 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 inherently secret or confidential (orders of 31 July 2008, Telefónica and Telefónica de España v Commission, T‑336/07, not published, EU:T:2008:299, paragraphs 33 and 34, and of 31 October 2018, TO v EEA, T‑462/17, not published, EU:T:2018:769, paragraph 16).

15      Where the examination of the documents and information the confidentiality of which is disputed leads the President to conclude that some of those documents and that information are secret or confidential, it is for the President to then assess and weigh up the interests involved, in relation to each of them (orders of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 17, and of 31 October 2018, TO v EEA, T‑462/17, not published, EU:T:2018:769, paragraph 17).

16      In other words, where confidential treatment is requested in the interests of the applicant, that assessment leads the President, for each document or piece of information, to weigh up the legitimate concern of that party to prevent serious harm to his interests and the equally legitimate concern of interveners to have the information necessary for the exercise of their procedural rights (orders of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 18, and of 31 October 2018, TO v EEA, T‑462/17, not published, EU:T:2018:769, paragraph 18).

17      In any event, the applicant must consider, having regard to the adversarial and public nature of the judicial proceedings, the possibility that some of the secret or confidential documents and information which he has intended to produce in the file may be necessary for the exercise of the interveners’ procedural rights and, consequently, must be communicated to those interveners (orders of 26 January 2018, FV v Council, T‑750/16, not published, EU:T:2018:59, paragraph 19, and of 31 October 2018, TO v EEA, T‑462/17, not published, EU:T:2018:769, paragraph 19).

18      It is in the light of those considerations that the present application for confidential treatment must be examined.

 Assessment of the application for confidential treatment

19      In the application for confidential treatment, the applicant refers to paragraphs 7 to 9, 11 to 13, 15 to 17, 22, 23, 25, 28, 36, 42, 43, 72, 73, 97, 101, 107 to 110, 114, and 119 to 121 of the application and Annexes 3 to 13 and 15 to 30 thereto. In addition, in the non-confidential version of the main application lodged by the applicant with her application for confidential treatment, in accordance with paragraph 183 of the Practice rules for the implementation of the Rules of Procedure, the applicant’s private address, which is reproduced on the first page of the application, was also redacted, as were the descriptions of the abovementioned annexes in the schedule forming part of the application, as well as most of the references to those annexes in the body of the application.

20      In support of the application for confidential treatment, the applicant submits that this is sensitive information relating to the posts which she held in eu‑LISA, an accident which took place at her workplace and her state of health.

21      Furthermore, the applicant submits that, even if, as the Council stated in its application for leave to intervene, the application contains a plea of illegality under Article 277 TFEU, referring to Articles 16 and 48 of the Conditions of Employment of Other Servants of the European Union, which is annexed to the Staff Regulations of Officials of the European Union, such information is not necessary for that institution to be able to submit meaningful observations in that regard.

22      The Council responds, in essence, that European Union civil service law and actions based on Article 270 TFEU by their nature relate to questions concerning the physical and mental state of health of officials and agents. Thus, the material in the file relating to the state of health and employment relationships of an agent, such as the applicant, is necessary to enable the institutions to exercise the right of intervention which they enjoy under Article 40 of the Statute of the Court of Justice of the European Union. In any event, the grounds relied on by the applicant in support of the application for confidential treatment are very general and standardised. Moreover, the guarantees provided for, inter alia, in Article 339 TFEU and Article 17 of the Staff Regulations of Officials of the European Union in order to avoid the disclosure of confidential information by agents of the institutions prevent any harm to the applicant’s interests.

23      As a preliminary point, it must be recalled that it is apparent from the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union, combined with the second paragraph of that provision, that the right granted to the institutions of the European Union to intervene is not subject to the condition that they establish an interest in the result of the case. It follows that those institutions may address any aspect of the case in which they intervene (see, to that effect, orders of 8 June 2017, FV v Council, T‑750/16, not published, EU:T:2017:420, paragraph 11, and of 22 May 2018, TO v EEA, T‑462/17, not published, EU:T:2018:298, paragraph 7).

24      Therefore, the applicant is wrong in submitting that the Council, in order to challenge the merits of the application for confidential treatment, must show that the application relates to information which is necessary for the Council to be able to adopt a position on the plea of illegality which may be raised in the application (see paragraph 21 above).

25      That being said, in the first place, it should be noted that paragraphs 11 to 13, 15, 42, 43 and 73 of the application contain information, sometimes very detailed, about an accident which occurred between the applicant and another person at a meeting held on the premises of eu‑LISA on 27 July 2017, on the reactions of her superiors to that accident and on the effects of that accident on her physical and mental health.

26      The information in paragraphs 11 to 13, 15, 42, 43 and 73 of the application is, largely, secret or confidential, in so far as it relates to information which is private and sensitive for the applicant. The applicant therefore, in principle, has a legitimate interest in most of that information not being communicated to the Council.

27      However, it must be noted, first, that paragraphs 10, 11, 26 to 28, 33, 60 and 139 of the defence and Annexes B.2 and B.3 to that defence contain a large part of the information contained in paragraphs 11 to 13, 15, 42 and 73 of the application.

28      Second, it must be noted that, although the defence and its annexes were served on the applicant by letter of 10 July 2019 (see paragraph 5 above), that is, before the date of the application for confidential treatment lodged at the Court Registry on 25 July 2019, that application related neither to that defence nor to its annexes and was not accompanied by a non-confidential version of them. Furthermore, it is evident that the applicant did not make other applications for confidential treatment after 25 July 2019. In those circumstances, under the order of 16 September 2019, referred to in paragraph 7 above, the Court Registry was right to send to the Council the defence and its annexes, as lodged by eu‑LISA on 6 June 2019.

29      Therefore, in order not to seriously prejudice the applicant’s interests which are still capable of being protected, paragraph 43 of the application should be given confidential treatment. That paragraph of the application contains an extract from a detailed medical certificate, which is not part of the information already brought to the Council’s knowledge following the order referred to in paragraph 7 above and which is not necessary in order for the Council to have appropriate knowledge of the case.

30      In the second place, it must be observed that paragraphs 7 to 9, 16, 17, 22, 23, 25, 28, 36, 72, 97, 101, 107 to 110, 114, 119 to 121 of the application (‘the other paragraphs of the application’) concern the posts held by the applicant within eu‑LISA, her employment relationships which showed certain tensions, their effects on her health, her absences from work for medical reasons and the handling of her requests relating to the organisation of her work following her health problems.

31      Some of that information may indeed be secret or confidential in so far as it concerns private, personal information that is potentially sensitive for the applicant. However, it must be stated that a large part of that information is in the defence and in its annexes, already served on the Council, as pointed out in paragraph 28 above. By way of example, it is noted that the substance of paragraph 9 of the application is largely reproduced in paragraphs 17 and 18 of the defence and that the content of paragraphs 107 to 110 of the application is, apart from a few words, the same as the last page of Annex B.6 to the defence. Moreover, it is evident that paragraph 110 of the application is merely a citation of the judgment referred to in footnote 6 of the application and that, moreover, that footnote was not redacted by the applicant in the non-confidential version of the application.

32      In any event, first, it must be stated (i) that the other paragraphs of the application contain information on the development of the applicant’s career and on the disputes which she had with her employer and (ii) that that information forms part of the factual context of all the pleas raised in support of the claims for annulment and compensation. Second, it must be noted that the other paragraphs of the application, even where they contain medical information, refer to the applicant’s state of health in quite general terms and give no details in that regard, with the result that it cannot be considered that the Council’s awareness of that information would seriously prejudice the applicant’s interests. In contrast, the confidential treatment of those paragraphs, if it were granted, would excessively prejudice the Council’s ability to address any aspect of the present dispute effectively (see paragraph 23 above). Therefore, by weighing up the interests, as laid down in the case-law referred to in paragraphs 15 and 16 above, the application for confidential treatment must be dismissed in respect of the other paragraphs of the application.

33      In the third place, as regards the annexes to the application which are referred to in the application for confidential treatment, it must be recalled, as a preliminary point, that, according to paragraph 181 of the Practice rules for the implementation of the Rules of Procedure, ‘an application for confidential treatment must be limited to what is strictly necessary and may not in any event cover the entirety of a procedural document; only exceptionally may it extend to the entirety of an annexed document’. The applicant’s application for confidential treatment relates to almost all the annexes to the application and to all of the pages of each of those annexes. In addition, the applicant has not provided specific explanations to justify her request with regard to each of those annexes, but has limited herself to the considerations summarised in paragraphs 19 and 21 above.

34      In those circumstances, it is necessary to examine strictly the possible confidential nature of the annexes in question.

35      In that regard, first, it should be noted that it is true that Annexes A.7 to A.9, A.12 and A.13 to the application contain very detailed information on the matters referred to in paragraph 25 above, as does the penultimate paragraph of page 5 of Annex A.29 to the application (page 144 of the consecutive numbering of the annexes). However, in the light of the considerations set out in paragraphs 26 to 29 above, the application for confidential treatment must be dismissed in so far as it relates to those annexes.

36      Second, with regard to Annex A.11 to the application, it must be stated that the documents of which it is composed are medical in nature. It does not follow, however, that the whole of that annex must be regarded as confidential.

37      The documents which are part of that annex and which are on pages 32 to 43 of the consecutive numbering of the annexes are medical opinions of the European Commission’s medical officer declaring, without giving any details, whether or not the applicant’s absences were justified, or are certificates by a doctor consulted by the applicant who, without giving details, refers to the need for the applicant to take sick leave or for the need for the manner in which she carries out her professional activity to be adapted to her state of health.

38      By contrast, the documents forming part of Annex A.11 to the application and on pages 44 and 45 of the consecutive numbering of the annexes are detailed medical certificates, containing sensitive information, which must be given confidential treatment, without such treatment seriously prejudicing the Council’s procedural rights.

39      In the fourth place, as regards the schedule of annexes to the application and references to the numbers of those annexes in the body of the application, it must be noted that they do not contain confidential information. First of all, as regards those references, they merely link some of the information contained in the application to the corresponding annexes. Next, as regards the annexes which have not been considered confidential, the descriptions in the schedule are not, a fortiori, considered confidential either. Lastly, as regards Annex A.11, the contents of which are partially confidential, its summary description in that schedule does not contain confidential information.

40      In the fifth and last place, as regards the applicant’s private address, it must be noted, first, that the application for confidential treatment does not contain any statement of reasons in that regard and, second, that that information appears in the defence, which has already been served on the Council.

41      In the light of all the foregoing considerations, it must be concluded that, pursuant to Article 144(7) of the Rules of Procedure, the Council will receive the communication of all the procedural documents served on the main parties, with the exception of the confidential information referred to in paragraphs 29 and 38 above.

On those grounds,

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      The application for confidential treatment is granted as regards paragraph 43 of the application and, in part, Annex A.11 to that application, namely pages 44 and 45 of the consecutive numbering of the annexes.

2.      The application for confidential treatment is dismissed as to the remainder.

3.      The Registrar shall set a period within which AQ is to provide a non-confidential version of the application and the annexes to the application, in accordance with point 1 of the operative part of the present order.

4.      The Registrar shall serve the non-confidential version of the application and the annexes to the application, submitted by AQ in accordance with points 1 to 3 of the operative part of the present order, on the Council, and shall set a new date for the Council to submit its statement in intervention.

5.      The costs are reserved.

Luxembourg, 27 November 2019.

*      Language of the case: English.

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