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

ORDER OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

20 May 2022 (*)

(Late production of evidence – 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 by M. Powell and A. Komninos, lawyers,

applicants,

supported by

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

intervener,

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

defendant,

supported by

Overgas Inc., established in Sofia, represented by S. Cappellari and S. Gröss, lawyers,

intervener,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure, in particular:

–        the application lodged at the Registry of the General Court on 1 March 2019,

–        the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), based on Article 103(3) of the Rules of Procedure of the General Court, by which it ordered the Commission to produce, in a non-confidential version vis-à-vis the applicants, six documents, which were lodged within the prescribed time limit,

–        the applicants’ observations of 27 April 2022 on the six abovementioned documents,

–        the document of 27 April 2022 and the annexes thereto, by which the applicants requested confidential treatment, vis-à-vis the interveners, of some of those documents,

–        the documents of 2 May 2022 by which the applicants corrected their request for confidential treatment of 27 April 2022,

having regard to Article 19(2) of the Rules of Procedure,

makes the following

Order

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

2        In pursuance of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), the Commission submitted six non-confidential annexes in respect of the applicants. Those annexes bear the references Y1 to Y6. Annex Y6 corresponds to the report drawn up by the applicants’ representatives during their data room access on 28 June 2018 (‘the data room report’), subject to two minor redactions accepted by the Court in that order.

3        Following the submission of those annexes, by their documents of 27 April and 2 May 2022, the applicants requested confidential treatment of Annex Y6 vis-à-vis Overgas Inc. The confidential version of that document vis-à-vis Overgas bears the reference OD 2.

4        Furthermore, the applicants annexed to their observations two other documents, bearing the references OD 3 and OD 4, in respect of which they also request partially confidential treatment vis-à-vis both interveners. Those documents consist, first, of letters sent by the Commission to the applicants on 1 April, 7 April 2015 and 24 November 2016, respectively, in order to grant them access to the file and, second, the indexes to the said file.

5        In the first place, it must be observed that the evidence submitted by the applicants under references OD 3 and OD 4 only at the stage of their observations on Annexes Y1 to Y6, without any reason being given to justify the delay, must be rejected as inadmissible under Article 85(3) of the Rules of Procedure (see, to that effect, judgment of 28 January 2016, Slovenia v Commission, T‑667/14, EU:T:2016:34, paragraph 16). In fact, that evidence could clearly have been annexed to the application, which also alludes to it. There is therefore no need to adjudicate on the request for confidential treatment concerning that evidence.

6        In the second place, in support of their request for confidential treatment of 27 April 2022, the applicants state, inter alia, the following:

‘Annex OD 2 [or Y6], containing the data room report drawn up by the applicants’ representatives, is still marked as confidential by the … Commission, and can therefore not be disclosed by the applicants to the interveners.’

7        However, in their documents of 2 May 2022, the applicants stated that, vis-à-vis Bulgaria, they did not make any request for confidential treatment of the documents produced by the Commission and lodged, for the attention of that intervener, an unredacted version of Annex Y6 (or OD 2).

8        Accordingly, it must be held that the applicants now merely request confidential treatment of Annex Y6 in respect of Overgas.

9        That being clarified, as noted in the order of 21 January 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, not published, paragraph 10), Article 144(7) of the Rules of Procedure lays down the principle that interveners are to receive a copy of every procedural document served on the main parties and permits, only by way of exception, the exclusion of certain confidential documents or information from that communication.

10      First of all, the consequence of that principle is that the request for confidential treatment must be accompanied by appropriate supporting reasons (see, to that effect, orders of 31 July 2008, Telefónica and Telefónica de España v Commission, T‑336/07, not published, EU:T:2008:299, paragraph 71, and of 28 January 2014, Novartis Europharm v Commission, T‑67/13, not published, EU:T:2014:75, paragraph 40). It is clear from the order of 21 January 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, not published, paragraph 23 and the case-law cited), in that regard, that failure, in particular, to state the reasons for which each of the particulars or passages in question is regarded as confidential may result in the request being refused by the Court.

11      As a consequence of the principle set out in paragraph 9 above, a request for confidential treatment cannot be accepted where it is excessive (see, to that effect, orders of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 79, and of 21 January 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, not published, paragraph 12).

12      Yet, first of all, the fact that Annex Y6 still bears on its cover page the title ‘The confidential version of the report drawn up by the applicants’ representatives during their data room access on 28 June 2018’ is merely a repetition of the official title of that report and does not mean that the Commission itself considers, at this stage of the procedure, that that annex should remain confidential vis-à-vis the interveners and, in particular, Overgas. It is sufficient to note in that regard that the Commission did not request such confidential treatment when it lodged that annex on 24 March 2022.

13      Next, Annex Y6 is essentially a description by the applicants’ representatives of the content of the detailed minutes of the eight meetings held by the Commission with Overgas, meaning that the latter necessarily knows the particulars of that description.

14      Accordingly, the request for confidential treatment, the content of which is set out in paragraph 6 above, first, clearly does not contain an adequate statement of reasons for the confidential nature of each of the passages in Annex Y6 in respect of which the applicants request redaction vis-à-vis Overgas and, second, is manifestly excessive.

15      In the light of all of the foregoing, Annexes OD 3 and OD 4, lodged on 27 April and 2 May 2022, must be excluded from the proceedings as inadmissible and the request for confidential treatment of Annex Y6 (or OD 2), lodged by the applicants on 27 April 2022, as corrected on 2 May 2022, must be rejected.

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby orders:

1.      Annexes OD 3 and OD 4 lodged on 27 April and 2 May 2022 by Bulgarian Energy Holding EAD, Bulgartransgaz EAD and Bulgargaz EAD are inadmissible.

2.      The request for confidential treatment of Annex Y6 (or OD 2) vis-à-vis Overgas Inc., lodged on 27 April 2022 and corrected on 2 May 2022, by Bulgarian Energy Holding EAD, Bulgartransgaz EAD and Bulgargaz EAD is rejected.

3.      Annexes Y1 to Y6 shall be communicated to the Republic of Bulgaria and to Overgas Inc.

4.      The costs are reserved.

Luxembourg, 20 May 2022.

*      Language of the case: English.

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