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

ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT

21 January 2022 (*)

(Confidentiality)

In Case T‑136/19,

Bulgarian Energy Holding EAD, established in Sofia (Bulgaria),

Bulgartransgaz EAD, established in Sofia,

Bulgargaz EAD, established in Sofia,

represented initially by M. Powell and K. Struckmann, lawyers, and by A. Kadri, Solicitor, and subsequently by M. Powell and K. Struckmann, lawyers,

applicants,

supported by

Republic of Bulgaria, represented by E. Petranova, L. Zaharieva and T. Mitova, acting as Agents,

intervener,

v

European Commission, represented by H. van Vliet, G. Meessen, J. Szczodrowski and C. Georgieva-Kecsmar, acting as Agents,

defendant,

supported by

Overgas Inc., represented by S. Cappellari and S. Gröss, lawyers,

intervener,

APPLICATION under Articles 261 and 263 TFEU seeking, principally, annulment of Commission Decision C(2018) 8806 final of 17 December 2018 relating to a proceeding under Article 102 TFEU (Case AT.39849 – BEH Gas) and, in the alternative, reduction of the fine imposed on the applicants by that decision,

THE PRESIDENT OF THE FOURTH CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT

makes the following

Order

1        By application lodged at the Registry of the General Court on 1 March 2019, the applicants brought an action seeking that Commission Decision C(2018) 8806 final of 17 December 2018 relating to a proceeding under Article 102 TFEU (Case AT.39849 – BEH Gas), by which the Commission found that they had abused a dominant position on several markets and as a result imposed a fine on them, be annulled or, in the alternative, varied.

2        More specifically, the Commission, by the contested decision, found that the applicants had committed a single and continuous infringement of Article 102 TFEU by refusing to grant third parties access to three gas infrastructures, namely, first, the Romanian transit pipeline 1 which transports Russian gas to Bulgaria (‘the Romanian pipeline 1’), second, the Bulgarian gas transmission network and, third, the Bulgarian storage site UGS Chiren.

3        In support of their action, the applicants have raised seven pleas in law, alleging (i) infringement of their rights of defence, the principle of good administration and the principle of transparency, (ii) failure to state reasons, and errors of law and of fact as regards the definition of the market of services related to the capacity of the Romanian pipeline 1, (iii) errors as regards the Commission’s finding that they had a dominant position on the relevant markets within the meaning of Article 102 TFEU, (iv) errors of law and of fact as regards the finding that they had abused their dominant position within the meaning of Article 102 TFEU, (v) errors in determining the duration of the infringement, (vi) that they were deprived of the chance to terminate the case by offering commitments pursuant to Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), and (vii) errors in calculating the amount of the fine imposed.

 Procedure

4        By document lodged at the Court Registry on 28 June 2019, Overgas Inc. applied for leave to intervene in support of the form of order sought by the Commission.

5        By document lodged at the Court Registry on 4 July 2019, the Republic of Bulgaria applied for leave to intervene in support of the form of order sought by the applicants.

6        By orders of the President of the Fourth Chamber of the General Court of 18 November 2019, Overgas and the Republic of Bulgaria were granted leave to intervene in the present case.

7        The applicants and the Commission requested confidential treatment, vis-à-vis the interveners, of a large amount of particulars contained in the application, the defence, the reply, the rejoinder and the applicants’ observations on Overgas’ statement in intervention, and in the annexes to those pleadings.

8        The requests for confidential treatment have not been challenged by the interveners.

 The requests for confidential treatment

9        Article 144(7) of the Rules of Procedure of the General Court states:

‘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 [by order of the President of the Chamber before which the case is pending, adopted] pursuant to paragraph 5.’

10      That provision lays down the principle that interveners are to receive a copy of every pleading served on the parties and permits only by way of derogation that certain confidential documents or information may be excluded from that communication (see orders of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 11 and the case-law cited, and of 10 June 2021, EVH v Commission, T‑312/20, not published, EU:T:2021:352, paragraph 12 and the case-law cited).

11      That being said, the President of the Chamber before which the case is pending must as a rule make a ruling only on the confidentiality of the documents or items of information in respect of which the request for confidential treatment is disputed (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraphs 14 and 15 and the case-law cited).

12      However, it should be borne in mind that, notwithstanding the absence of a challenge, the President of the Chamber before which the case is pending cannot be prevented from rejecting requests for confidential treatment. That is the case, in particular, where such a request appears to be grossly excessive (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 16 and the case-law cited), since, pursuant to point 181 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, an application for confidential treatment must be limited to what is strictly necessary. That is also the case where the requests for confidential treatment concern data whose public nature is manifestly clear from the evidence in the file or whose confidential nature becomes manifestly obsolete by the publication of the contested decision or the disclosure of other information in the file (see judgment of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 75 and the case-law cited, and order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 46).

13      It should be added in that regard that, where confidential treatment is extended, this may not only undermine the rights of the interveners and the clarity of the oral hearing, but also make the Court’s final decision difficult to understand, both for the interveners and for the public. Pursuant to Article 47 of the Charter of Fundamental Rights of the European Union, justice must be administered subject to scrutiny by the latter.

14      In addition, the main parties must, given the adversarial and public nature of the judicial proceedings, of which the courts are the guarantor, envisage the possibility that some of the secret or confidential documents or information which they have decided to place on the file appear necessary for the exercise of the interveners’ procedural rights (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 46, and of 16 October 2018, Hansol Paper v Commission, T‑383/17, not published, EU:T:2018:742, paragraph 21) and that that secret or confidential nature also appears incompatible with the public character of the decisions of the Courts of the European Union, since that public character protects litigants against the administration of justice in secret with no public scrutiny (judgment of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 49).

15      In those circumstances, it is for the President of the Chamber before which the case is pending to weigh up, for each document or piece of information concerned, the main parties’ legitimate concern to prevent serious harm to their interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 44, and of 16 October 2018, Hansol Paper v Commission, T‑383/17, not published, EU:T:2018:742, paragraph 20), the requirements of the proper administration of justice and the requirement to deliver a judgment that the public is able to understand.

16      More specifically, it is accepted that various circumstances may lead to the conclusion that a request for confidential treatment of an item in the file is not justified.

17      Such is the case, in the first place, for information which is already public or to which the general public or certain specialist circles have access, for information featuring also in other passages or documents in the case file in respect of which the party seeking to preserve the confidential nature of the information in question neglected to make a request to that effect, 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, orders of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 20 and the case-law cited, and of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraphs 89 and 90).

18      In that regard, the following should be noted.

–        As regards:

–        the title of Section 6.2(b), paragraphs 129, 151, 283 and 284 of the application;

–        paragraphs 141, 147, 157, 190, 362, 363, 368 and 406 and the title of Section 6.2.10 of the defence;

–        paragraphs 75, 78, 80, 209 and 234 and the title of Section 5.2.5.5 of the reply; and

–        paragraphs 78, 98, 99, 104, 105, 135 and 234 and the title of Section 5.2.6.5 of the rejoinder:

The fact that, in September 2013, C Energy Group requested access to the Romanian pipeline 1 from Bulgargaz but never received a response cannot be redacted, since that fact is apparent from recitals 330, 331, 546 and 651 of the public version of the contested decision.

Furthermore, the fact that C Energy Group is an electricity trader is set out in recital 329 of that version.

Lastly, with particular regard to paragraph 209 of the reply, the question of the potential effects on competition of the applicants’ actions in relation to C Energy Group is raised in paragraph 284 of the non-confidential version of the application vis-à-vis Overgas.

–        As regards:

–        paragraphs 29, 39, the title of Section 3.3, paragraphs 57 to 59, 61, 62, 267 to 269, 271 and 324 and footnote 38 of the application;

–        paragraphs 23 and 24, the title of Section 3.5, paragraphs 58, 59, 61, 62, 66, 349 and 396 and footnote 57 of the defence;

–        the title of Section 2.3, paragraphs 23, 198, 199, 230 and 236 of the reply; and

–        paragraphs 15, 18, 216 to 219, 223 and 253 of the rejoinder:

The fact that the applicants’ request for access to a ‘statement of objections’/‘SO’ in another case was refused cannot be redacted. The nature of the document whose disclosure was refused is immediately apparent from the title of Section 3.5 and paragraphs 23, 24 and 58 et seq. of the consolidated non-confidential version of the defence.

Moreover, that information is essential for a response to the third part of the first plea to be understandable and for its reasoning to be intelligible.

Furthermore, recitals 697 and 698 and footnote 707 of the public version of the contested decision make it easy to infer that the statement of objections in question related to the company Gazprom. Moreover, the applicants no longer redact it in paragraphs 13 and 42 of their non-confidential observations on Overgas’ statement in intervention.

In addition, it is apparent from Overgas’ statement in intervention, and in particular from paragraph 23 thereof, that it is aware that the applicants were attempting, and still attempt, to justify their conduct by reference to the conduct of Gazprom and Overgas. Moreover, the applicants openly make such statements in paragraphs 12, 18 and 35 to 38 of their non-confidential observations on Overgas’ statement in intervention.

Lastly, the fact that the case concerning Gazprom ended with a commitment decision adopted on 24 May 2018 pursuant to Article 9 of Regulation No 1/2003 is apparent from footnote 40 of the non-confidential version of the application vis-à-vis Overgas.

–        As regards paragraph 100 of the application:

The fact that Article 17.1 of the agreement concluded on 19 October 2005 between Transgaz Romania (‘Transgaz’) and Bulgargaz (‘the 2005 Agreement’) provided that third-party access to the Romanian pipeline 1 was subject to Bulgargaz’s consent is set out in recital 261 of the public version of the contested decision.

–        As regards:

–        paragraphs 124 and 276 of the application; and

–        paragraphs 59, 76, 78, 82, 85 and 98 of the rejoinder:

The date 31 January 2011 is set out in recitals 297(a) and 665 and the date 28 September 2011 is set out in recital 297(b) of the public version of the contested decision.

–        As regards footnote 253 of the application:

That footnote, recital 297(k) of the public version of the contested decision, and paragraphs 170, 185 and 193 of the consolidated non-confidential version of the defence show that Bulgargaz paid Transgaz a fixed fee. In those circumstances, the particulars redacted in the footnote in question cannot be regarded as confidential, since they only explain the normal practical effects of the flat-rate nature of that fee. Moreover, recitals 260 and 289 of the public version of the contested decision state that the price paid by Bulgargaz did not depend either on the volume of gas actually transmitted through the Romanian pipeline 1 or on any increase of its capacity.

–        As regards:

–        paragraphs 187, 226 to 230 and 233 and the title of Section 6.3(e)(i) of the application;

–        paragraphs 141 and 174 to 176 and the title of Section 5.3.5 of the reply; and

–        paragraphs 107, 174, 186 to 188 and 215 and the title of Section 5.3.5 of the rejoinder:

The fact that Toplofikacia Razgrad is a subsidiary of Overgas is apparent from footnote 46 of the public version of the contested decision. Moreover, Overgas cannot be unaware of it.

Furthermore, the facts, first, that Toplofikacia Razgrad requested access to the Bulgarian gas transmission network, second, that Bulgartransgaz sent a letter to Toplofikacia Razgrad on 20 November 2012 and asked it to demonstrate its capacity to deliver gas to the network entry point Negru Voda 1, third, that on 23 October 2012 Toplofikacia Razgrad submitted evidence that it had a contract concerning gas supplies at that entry point, and fourth, that it was not given access to that network follow from recitals 98 and 152 to 156 and footnote 137 of the public version of the contested decision and paragraph 290 of the consolidated non-confidential version of the defence.

–        As regards paragraphs 189, 231 and 233 of the application:

The dates ‘November 2010’ or ‘3 November 2010’ are set out in recital 99 and footnote 150 of the public version of the contested decision.

–        As regards paragraph 218 of the application:

The date 30 July 2010 is set out, in particular, in recitals 100, 101(a), 117, 214 and 646 of the public version of the contested decision.

–        As regards footnote 313 of the application:

The date ‘July 2010’ is set out in paragraph 166 of the consolidated non-confidential version of the rejoinder.

–        As regards paragraph 211 of the application:

The fact that Bulgartransgaz was seeking clarification from Overgas since ‘December’ 2010 is apparent from recital 226 of the public version of the contested decision. Moreover, Overgas, the addressee of those requests for information, cannot be unaware of that.

–        As regards paragraph 233 of the application:

In addition to the finding made above concerning the date ‘November 2010’, the date 1 January 2013 is apparent from recitals 312 and 323 of the public version of the contested decision and the date 31 January 2013 is apparent from recitals 110 and 312 thereof. Those dates are also referred to in paragraph 124 of the applicants’ non-confidential observations on Overgas’ statement in intervention.

–        As regards paragraph 255 of the application:

‘30 March 2012’ is set out in footnote 274 and recital 243 of the public version of the contested decision and ‘July 2012’ is apparent from recitals 169 and 243 of that version.

–        As regards paragraph 260 of the application:

The date 19 September 2014 is referred to in recital 649 of the public version of the contested decision.

–        As regards paragraph 269 of the application:

That paragraph refers to the fact that, according to the applicants, on account of the anticompetitive practices of Gazprom and its intermediaries such as Overgas and, in particular, on account of the terms of the supply agreements concluded between the latter and Bulgargaz, containing territorial restrictions, Bulgargaz held gas quantities which it could not sell outside Bulgaria. Those particulars are apparent from paragraph 27 of the non-confidential version of the application vis-à-vis Overgas, paragraph 349 of the consolidated non-confidential version of the defence, and paragraph 18 of the non-confidential version of the applicants’ observations on Overgas’ statement in intervention.

–        As regards:

–        paragraph 158 of the application;

–        paragraphs 83, 84, 86, 89, 90 and 93 to 95 and footnotes 50, 51 and 53 to the reply; and

–        paragraphs 60, 79, 82, 84 to 88, the title of Section 5.2.7 and paragraph 127 of the rejoinder:

It must be noted, first, that the existence of an infringement procedure against Romania is referred to in recital 299 of the public version of the contested decision and in paragraph 72 of the non-confidential version of the applicants’ observations on Overgas’ statement in intervention.

Second, the existence of an infringement procedure against Bulgaria was referred to on the Commission’s website.

Third, the involvement of the Romanian and Bulgarian Governments in the renegotiation of the 2005 Agreement is apparent from recitals 297(b) and (j) of the public version of the contested decision. That involvement is also apparent from paragraphs 129 and 161 et seq. of the non-confidential version of the application vis-à-vis Overgas, paragraphs 149, 151 and 160 of the consolidated non-confidential version of the defence, paragraphs 70 and 88 and the titles of Sections 5.2.2 and 5.2.3 of the consolidated non-confidential version of the reply, and even from the reasons given to justify the confidential nature of the redacted passages. Lastly, the applicants describe the intergovernmental nature of the renegotiation of the 2005 Agreement in paragraphs 56, 57 and 72 to 74 of the non-confidential version of their observations on Overgas’ statement in intervention. Therefore, the consequences which the applicants are claiming to draw from the involvement of those two governments and the Commission’s response in that regard cannot be redacted either. In any event, the applicants focus on that involvement in order to substantiate their fourth plea in law, with the result that the abovementioned particulars are likely to be indispensable for the examination of the action in the context of an exchange of arguments, including with regard to the interveners, and for the general understanding of the response which the Court is called upon to give to that plea.

Fourth, as regards the substance of the discussions relating to that renegotiation, it is apparent from recital 297(j) of the public version of the contested decision that, at the meeting of 9 December 2013, the meeting participants, namely Transgaz, Bulgargaz and representatives of the Bulgarian and Romanian Governments, stated that they agreed that the 2005 Agreement should be amended to enable the release of unused capacity on the Romanian pipeline 1. Furthermore, in paragraph 159 of the non-confidential version of the application vis-à-vis Overgas, the applicants submit that Bulgargaz expressed its willingness to return unused capacity at the discussions on the renegotiation of that agreement. Lastly, the fact that the renegotiation of the 2005 Agreement concerned, inter alia, an adjustment of the price paid by Bulgargaz to Transgaz is set out in paragraph 97 of the consolidated non-confidential version of the reply and in paragraph 97 of the consolidated non-confidential version of the rejoinder.

In that regard, the fact, as alleged by the applicants, that that agreement contained a confidentiality clause that was not limited in time does not adequately justify that the confidentiality of any reference to its renegotiation and the essential information concerning that renegotiation be exceptionally preserved.

–        As regards paragraph 83 of the reply:

The fact that Bulgaria depended almost fully on gas imports from Russia is apparent from recital 62 of the public version of the contested decision.

–        As regards:

–        paragraph 167 of the application;

–        paragraphs 83 and 95 and footnote 55 of the reply; and

–        paragraph 79 of the rejoinder:

The fact that the Romanian pipeline 1 was the only viable route for bringing gas to Bulgaria, and therefore the importance of that infrastructure, are apparent from recital 51 of the public version of the contested decision.

As regards the importance, according to the applicants, of the 2005 Agreement and the need to maintain a certain capacity on the Romanian pipeline 1 for the benefit of Bulgargaz in view of, in the words of the Commission, a ‘state compulsion’ to ensure the supply of gas in Bulgaria, that is apparent from paragraphs 89, 93 and 94 of the non-confidential version of the reply.

–        As regards:

–        paragraphs 336 and 337 of the application; and

–        paragraph 235 of the reply:

The fact that Bulgargaz incurred losses during the infringement period is apparent from paragraph 406 of the consolidated non-confidential version of the defence. That fact therefore cannot be redacted.

Moreover, in paragraph 336 of the non-confidential version of the application vis-à-vis Overgas, the content of which is reproduced in paragraph 404 of the consolidated non-confidential version of the defence, the applicants claim that, during that period, Bulgargaz paid Gazprom the highest price in the European Union for the purchase of gas and, on account of the Bulgarian rules, supplied gas to its customers at one of the lowest prices, with the result that it could not recoup its costs.

Consequently, in so far as paragraph 235 of the reply refers to the fact that Bulgargaz’s trading margin was negative and attributes the reason for that to its supplier, the latter’s name, namely Gazprom, cannot be redacted.

The required disclosure does not, however, concern the figures in question.

–        As regards paragraph 59 of the rejoinder:

The fact that the meeting in question took place on ‘31 January’ 2011 is referred to in recitals 297(a) and 665 of the public version of the contested decision.

Next, the reason why Transgaz requested Bulgargaz to free up the unused part of the capacity of the Romanian pipeline 1, namely the construction of a gas terminal at Constanta and the fact that that construction would take time, is apparent from recital 297(a) of the public version of the contested decision, paragraph 277 of the non-confidential version of the application vis-à-vis Overgas, paragraphs 134, 142 and 157 of the consolidated non-confidential version of the defence, and paragraphs 69 and 100 of the reply.

–        As regards paragraph 85 of the rejoinder:

Irrespective of the non-confidential nature of the involvement of the Romanian and Bulgarian Governments in the renegotiation of the 2005 Agreement and of the date 31 January 2011 referred to above, it must be noted that the requests made by Transgaz, including at the meeting held on that date, for Bulgarian Energy Holding (BEH) to free up some of the unused capacities of the Romanian pipeline 1 are set out in recitals 297 and 665 of the public version of the contested decision.

Similarly, the confidential nature of the letter of 26 January 2012 and its content cannot be accepted, since those particulars are set out in recital 297(d) of that version.

–        As regards paragraph 96 of the rejoinder:

The dates 6 February and 29 March 2012 are set out in recital 297(e) and (f) of the public version of the contested decision.

–        As regards paragraphs 144, 176 and 190 of the rejoinder:

Although the name of the undertaking in question may remain confidential, the nature of its activity during the infringement period cannot be redacted. The redacted particulars are apparent from recital 45(c) of the public version of the contested decision.

–        As regards:

–        paragraphs 18, 128, 244 and 256 of the defence; and

–        paragraph 168 of the rejoinder:

It is apparent, first of all, from the unredacted part of paragraph 168 of the rejoinder itself that the employee in question was in fact the CEO of Bulgartransgaz.

Next, the substance of the assessment of Overgas’ request for access in 2010, redacted in paragraph 168 of the rejoinder, and in particular the fact that that ‘employee’ of Bulgartransgaz stated, on 17 December 2010, that Overgas fulfilled the conditions for access to the Bulgarian transmission network and recommended that the matter be sent for approval to BEH’s Board of Directors, is set out in recital 102 of the public version of the contested decision and in paragraphs 244 and 256 of the consolidated non-confidential version of the defence.

Moreover, the internal assessment at Bulgartransgaz in 2010 constitutes historical information (see paragraph 20 below), in respect of which it is not adequately justified that its confidentiality be preserved over a decade later.

–        As regards:

–        paragraphs 221 to 224 and 233 and the title of Section 6.3(d) of the application;

–        paragraphs 206 and 224, the title of Section 6.3.4, paragraphs 273 to 279, 290, 291, 294 and 340, first redacted matter, of the defence;

–        the title of Section 5.3.4 and paragraphs 169, 170 and 173 of the reply;

–        the title of Section 5.3.4 and paragraphs 180 to 184 of the rejoinder; and

–        paragraph 131 of the applicants’ observations on Overgas’s statement in intervention:

The name of the undertaking concerned, RWE, and the other redacted particulars are apparent from recitals 137 and 138 of the public version of the contested decision.

–        As regards paragraph 239 of the rejoinder:

The redacted passage cannot be regarded as confidential, since it is legible in its entirety in paragraph 218 of the consolidated non-confidential version of the reply.

–        As regards:

–        paragraphs 303, 304, second sentence, and 306 of the application;

–        the last sentence of paragraph 378 of the defence; and

–        paragraphs 239 to 241 of the rejoinder:

The fact that the Commission required the complete privatisation of Bulgartransgaz as a condition for terminating the case with commitments is apparent from paragraph 218 of the consolidated non-confidential version of the reply.

As regards the fact that the applicants consider that that requirement was contrary to Article 345 TFEU and Article 9 of Regulation No 1/2003, this follows from the heading of the two parts of the sixth plea in law in the application and from the challenge of that argument in paragraph 377 et seq. of the consolidated non-confidential version of the defence, which set out, in a non-redacted manner, the Commission’s position.

Lastly, it might be impossible to respond to the sixth plea in an intelligible manner without referring to the redacted particulars in the paragraphs in question.

–        As regards paragraph 150 of the rejoinder:

The question of when, in the light of the Bulgarian 2007 Access Rules on the transmission network, the applicant for access had to provide information is raised in paragraph 195 of the non-confidential version of the application vis-à-vis Overgas.

–        As regards paragraph 258 of the rejoinder:

The redacted passage cannot be regarded as confidential since all the particulars in question are set out in paragraph 406 of the consolidated non-confidential version of the defence and in paragraph 235 of the consolidated non-confidential version of the reply.

–        As regards footnote 16 of the rejoinder:

Case-law of the Court of Justice, which is, moreover, referred to in the consolidated non-confidential version of the rejoinder, clearly cannot be regarded as confidential.

19      It follows from the foregoing that the confidentiality of the particulars listed in paragraph 18 above is not justified and that they must be disclosed in new non-confidential versions which will be served on the interveners.

20      In the second place, as regards information which has not been disclosed either in the public version of the contested decision or in the non-confidential versions of the pleadings, it must be borne in mind that the inherent confidentiality of information may disappear over time. Thus, it has been consistently held that information which was confidential, but which is at least five years old, must for that reason be considered historical and be communicated to the other parties, unless, exceptionally, the party seeking to preserve that confidentiality shows that, in spite of its age, that information still constitutes essential secrets, such as industrial or commercial secrets, disclosure of which would harm that party or the third party concerned (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 19 and the case-law cited).

21      In that regard, it must be noted that the applicants, in general, have merely stated that the redacted particulars consist of information concerning BEH’s commercial exchanges with third parties and that they constitute business secrets by nature whose disclosure to the interveners has not been approved by its partners. In a number of instances, the applicants have also submitted, in essence, that, as a transmission system operator, Bulgartransgaz is required to protect the confidentiality of requests for access by market players, especially where those market players are competitors of Overgas.

22      Such generic justifications cannot, however, constitute reasons capable of establishing that the particulars in question remain essential secrets and of justifying that the confidentiality of the following information be exceptionally preserved vis-à-vis the interveners. That applies, in particular, to dates going well beyond the five years referred to in the case-law cited in paragraph 20 above, some dates going back over a decade. Accordingly, it is not appropriate to allow the redaction of the information listed below.

–        As regards paragraph 140 and footnote 234 of the application:

The date 18 February 2013.

–        As regards:

–        paragraph 167 of the application; and

–        paragraphs 83 and 95 of the reply:

In addition to the findings made in paragraph 18 above concerning the renegotiation of the 2005 Agreement, it must be noted, as regards the information whose disclosure is required under that paragraph, that the position expressed by the Bulgarian authorities and Bulgargaz concerning the renegotiation of that agreement, especially in 2010, 2011, and even in 2014, constitutes historical information within the meaning of the case-law set out in paragraph 20 above. As has been stated above, the fact that the 2005 Agreement contained a confidentiality clause that was not limited in time does not adequately justify that the confidentiality of any reference to its renegotiation and the essential information regarding that renegotiation be exceptionally preserved.

–        As regards paragraph 203 of the application:

The date 18 October 2010.

In addition to the justification referred to in paragraph 21 above, the applicants have specifically stated that that date corresponded to that of Bulgartransgaz’s internal report on the assessment of Overgas’ request for access to the Bulgarian gas transmission network and that that report was a document forming part of the internal assessment of requests, which was not made public and whose disclosure could result in serious harm to Bulgartransgaz. However, that justification is only distantly, and accordingly inadequately, related to the date in question and the Court does not see how knowledge of that date could result in harm to the applicants or to third parties.

–        As regards the fifth indent of paragraph 233 of the application:

The dates August 2010, 1 January and 7 February 2011.

–        As regards paragraph 236 of the application:

The dates February and April 2013.

–        As regards paragraph 245 of the application:

The dates 17 October 2007 and 13 March 2008.

–        As regards paragraph 246 of the application:

All the dates set out in Table 3.

–        As regards footnote 312 of the application:

The date 8 April 2010.

–        As regards paragraph 234 of the defence:

The reference to ‘June 2010’.

–        As regards paragraph 80 of the reply:

In addition to the name of C Energy Group (see paragraph 18 above), the reference to the year.

–        As regards paragraph 145 of the applicants’ observations on Overgas’ statement in intervention:

‘October’ and ‘November’ 2014.

23      In the third place, it is clear from settled case-law, the substance of which is reproduced in point 182 of the Practice Rules for the Implementation of the Rules of Procedure, 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 orders of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 12 and the case-law cited, and of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 15).

24      In that regard, it must be noted that the justification of the confidential nature is at times manifestly insufficient.

–        Thus, for example, the justification of the confidential nature of the redacted particulars in paragraph 181 of the rejoinder concerns only the name of a company and not the most substantial part of that paragraph.

–        Likewise, the justification for the redaction of the dates, in particular, in footnotes 400 and 406 to 408 of the application is equally manifestly insufficient. Besides the fact that the date 23 October 2013 goes beyond the five years referred to by the case-law cited in paragraph 20 above, it must be noted, as regards the dates 21 April 2016 and 16 August and 15 September 2017, that the applicants merely state that the information relating to the discussions on a potential commitment under Article 9 of Regulation No 1/2003 between the applicants, the Republic of Bulgaria and the Commission constitutes confidential information, since those discussions related to numerous proposals for structural and behavioural remedies that were not accepted. However, the dates in question do not reveal anything about the content of those discussions, which, moreover, has been partially disclosed, as is apparent from paragraph 18 above.

That reasoning is also inappropriate as regards the identity of the authors of the letters of 16 August and 15 September 2017. Those authors are, moreover, identified only by their function, which is, in addition, one of public office.

25      In the light of all the foregoing, the requests for confidential treatment of the redacted information in the pleadings, as identified in paragraphs 18, 22 and 24 above, must be rejected. Consequently, it is also necessary to refuse confidential treatment of the same information where it appears in the annexes to those pleadings.

On those grounds,

THE PRESIDENT OF THE FOURTH CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT

hereby orders:

1.      The requests for confidential treatment of the redacted information in the pleadings, as identified in paragraphs 18, 22 and 24 of the present order, are rejected.

2.      Consequently, the requests for confidential treatment of the same information set out in the annexes to the pleadings are also rejected.

3.      The Registrar shall set a time limit for the main parties to submit new non-confidential versions of their pleadings and the annexes thereto, in accordance with points 1 and 2 of this operative part.

4.      The Registrar, first, shall serve the new non-confidential versions of the pleadings and the annexes thereto, submitted by the main parties in accordance with points 1 to 3 of this operative part, to the interveners and, second, shall set a time limit for the interveners to lodge observations only on the passages disclosed following the present order.

5.      The costs are reserved.

Luxembourg, 21 January 2022.

*      Language of the case: English.

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