Orders nº T-271/03 of Court of First Instance of the European Communities, June 15, 2006

• Resolution Date: June 15, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-271/03

(Confidentiality – Challenge by the interveners)

In Case T‑271/03,

Deutsche Telekom AG, established in Bonn (Germany), represented by K. Quack, U. Quack and S. Ohlhoff, lawyers,

applicant,

v

Commission of the European Communities, represented initially by K. Mojzesowicz and S. Rating, and subsequently by K. Mojzesowicz and A. Whelan, acting as Agents,

defendant,

supported by

Arcor AG & Co. KG, established in Eschborn (Germany), represented by M. Klusmann, F. Wiemer and M. Rosenthal, lawyers,

and by

CityKom Münster GmbH Telekommunikationsservice, established in Munster (Germany),

EWE TEL GmbH, established in Oldenbourg (Germany),

HanseNet Telekommunikation GmbH, established in Hamburg (Germany),

ISIS Multimedia Net GmbH & Co. KG, established in Dusseldorf (Germany),

Versatel Nord-Deutschland GmbH, previously KomTel Gesellschaft für Kommunikations- und Informationsdienste mbH, established in Flensburg (Germany),

NetCologne Gesellschaft für Telekommunikation mbH, established in Cologne (Germany),

TeleBel Gesellschaft für Telekommunikation Bergisches Land mbH, established in Wuppertal (Germany),

Versatel Süd-Deutschland GmbH, previously tesion Telekommunikation GmbH, established in Stuttgart (Germany),

Versatel West-Deutschland GmbH & Co. KG, previously VersaTel Deutschland GmbH & Co. KG, established in Dortmund (Germany),

represented by N. Nolte, T. Wessely and J. Tiedemann, lawyers,

interveners,

APPLICATION for annulment of Commission Decision 2003/707/EC of 21 May 2003 relating to a proceeding under Article 82 EC (Case COMP/C‑1/37.451, 37.578, 37.579 – Deutsche Telekom AG) (OJ 2003 L 263, p. 9),

THE PRESIDENT OF THE FIFTH CHAMBEROF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Procedure

1 By application lodged at the Registry of the Court of First Instance on 30 July 2003, Deutsche Telekom AG (‘the applicant’) brought an application for annulment of Commission Decision 2003/707/EC of 21 May 2003 relating to a proceeding under Article 82 EC (Case COMP/C-1/37.451, 37.578, 37.579 – Deutsche Telekom AG) (OJ 2003 L 263, p. 9, ‘the contested decision’).

2 By documents lodged at the Registry of the Court on 12 December 2003, Arcor AG & Co. KG (‘the first intervener’), and CityKom Münster GmbH Telekommunikationsservice, EWE TEL GmbH, HanseNet Telekommunikation GmbH, ISIS Multimedia Net GmbH & Co. KG, NetCologne Gesellschaft für Telekommunikation mbH, TeleBel Gesellschaft für Telekommunikation Bergisches Land mbH, Versatel Nord-Deutschland GmbH, previously KomTel Gesellschaft für Kommunikations- und Informationsdienste mbH, Versatel Süd-Deutschland GmbH, previously tesion Telekommunikation GmbH, Versatel West-Deutschland GmbH & Co. KG, previously Versatel Deutschland GmbH & Co. KG (jointly referred to as ‘the second intervener’), applied for leave to intervene in this action in support of the form of order sought by the Commission.

3 By letter of 30 January 2004, the applicant sent the Court of First Instance a request for confidential treatment of certain passages of the application, the defence, the reply and certain annexes relating thereto.

4 By letter of 22 March 2004, the applicant sent the Court a request for confidential treatment of a passage from the rejoinder.

5 By order of the President of the First Chamber of the Court of First Instance of 6 May 2004, the companies mentioned in paragraph 2 above were granted leave to intervene in support of the form of order sought by the Commission. The decision on the validity of the request for confidential treatment was reserved.

6 Non-confidential versions of procedural documents, prepared by the applicant, were sent to the first and second interveners.

7 By letters of 24 June 2004, the first and second interveners disputed the request for confidentiality made by the applicant.

8 By letter of 20 December 2004, the applicant lodged observations on the objections of the first and second interveners. In the same letter, the applicant also requested that it be given the opportunity – in the event of its request for confidential treatment being completely or partially rejected – to withdraw from the Court’s file the documents or parts of documents affected by the refusal of confidential treatment.

The request for confidential treatment

1. Preliminary observations

   9 The request for confidential treatment was made on the basis of Article 116(2) of the Rules of Procedure of the Court of First Instance, which provides that ‘the intervener shall receive a copy of every document served on the parties’, but that ‘[t]he President may, however, on application by one of the parties, omit secret or confidential documents’.

   10 According to case-law, for the purpose of determining the conditions under which confidential treatment may be given to certain documents in the file, it is necessary to balance, in respect of each document or part of a document on the Court’s file for which confidential treatment is claimed, the applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate concern to have the necessary information for the purpose of being fully in a position to assert their rights and to state their case before the Community Court (orders of the Court of First Instance in Case T-30/89 Hilti v Commission [1990] ECR II‑163, paragraph 11, and of the President of the First Chamber of the Court of First Instance in Case T‑168/01 Glaxo Wellcome v Commission [2003], not published in the ECR, paragraph 35).

   11 It must therefore be stated that sufficient grounds for the request for confidential treatment were given by the applicant in a document lodged at the Registry of the Court on 30 January 2004 and that those grounds were further supplemented by a document lodged on 20 December 2004. It stated, in respect of each item covered by the request for confidential treatment, the reasons for which it considers that the disclosure thereof would substantially damage its business interests.

   12 Under those circumstances, so that the President can make the evaluation referred to in paragraph 10, the challenging of the request for confidentiality by the interveners must relate to precise items of the procedural documents which have been obscured and indicate the reasons for which confidentiality with regard to those items should be refused.

   13 Finally, the applicant’s request concerning the withdrawal of documents or of parts of documents in respect of which the President rejects the request for confidential treatment (see paragraph 8 above) cannot be accepted since, as presented, it seeks to circumvent the President’s decision on the request for confidential treatment.

2. The items covered by the request for confidential treatment which were not disputed, expressly and precisely, by the interveners

   14 The interveners have not disputed, expressly and precisely as referred to in paragraph 12 above, various items of the procedural documents in respect of which the applicant had requested confidential treatment. In accordance with the case-law referred to in paragraph 10 above, as regards those items, the President is unable to balance the applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate concern to have the necessary information for the purpose of being fully able to assert their rights and to state their case before the Community Court.

   15 Under those conditions, the applicant’s request for confidential treatment must be upheld in so far as it concerns items which have not been disputed, expressly and precisely, by the interveners. Those items are:

   – the contested decision (Annex A.1 to the application): the items obscured in recitals 99, 151, 152, 154, 160 to 162, 167 and 172;

   – the statement of objections of 2 May 2002 (Annex A.2 to the application): the items obscured in paragraphs 26 to 28, 39, 45, 92, 124 to 126, 128, 131, 133, 137 to 140 and 143 to 147;

   – the applicant’s observations of 29 July 2002 on the statement of objections (Annex A.3 to the application): the items obscured on pages 4, 11 to 13, 37, 41, 65 to 67, 75, 76, 78 to 80, 88 to 91, 93, 94, 98, 100 to 106, 108, 109 and 122;

   – the applicant’s observations of 25 October 2002 on the complainants’ responses (Annex A.4 to the application): the items obscured on pages 14 and 31;

   – the supplementary statement of objections of 21 February 2003 (Annex A.5 to the application): the items obscured in...