Orders nº T-198/09 of The General Court, July 12, 2011

• Resolution Date: July 12, 2011
• Issuing Organization: The General Court
• Decision Number: T-198/09

(Confidentiality – Challenge)

In Case T‑198/09,

UOP Ltd, established in Brimsdown (United Kingdom), represented by B. Hartnett and O. Geiss, lawyers,

applicant,

v

European Commission, represented by K. Talabér-Ritz and T. Scharf, acting as Agents,

defendant,

supported by

Institut français du pétrole (IFP), represented by E. Morgan de Rivery and A. Noël-Baron, lawyers,

intervener,

APPLICATION for partial annulment of Commission Decision C(2008) 1330 of 16 July 2008 on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13),

THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT

makes the following

Order

Procedure

1 By application lodged at the Registry of the General Court on 20 May 2009, the applicant, UOP Ltd, brought an action seeking partial annulment of the Commission Decision of 16 July 2008 on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13) (‘the contested decision’).

2 By document lodged at the Registry of the Court on 11 August 2009, the intervener, l’Institut français du pétrole (IFP), applied for leave to intervene in support of the form of order sought by the Commission.

3 By letter of 24 September 2009, the applicant applied for confidential treatment vis-à-vis the intervener in respect of certain data and information contained in the application initiating the proceedings.

4 By letter of 24 September 2009, the Commission applied for confidential treatment vis-à-vis the intervener in respect of certain information and data contained in the defence and a number of the annexes thereto.

5 By letter of 9 November 2009, the applicant applied for confidential treatment vis-à-vis the intervener in respect of certain data and information contained in the reply and a number of the annexes thereto.

6 By order of the President of the Fourth Chamber of the General Court of 4 December 2009, the intervener was granted leave to intervene in support of the form of order sought by the Commission. The decision on the validity of the application for confidential treatment was reserved.

7 By letter of 7 January 2010, the intervener challenged the applications for confidential treatment in respect of data and information contained in the defence and in the reply.

8 By letter of 18 January 2010, the Commission applied for confidential treatment vis-à-vis the intervener in respect of certain data and information contained in the rejoinder.

9 By letter of 3 March 2010, the applicant applied for confidential treatment vis-à-vis the intervener in respect of certain data and information contained in the rejoinder.

10 By letter of 19 April 2010, the intervener challenged the applications by the applicant and by the Commission for confidential treatment in respect of data and information contained in the rejoinder.

11 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Fifth Chamber, to which the present case was accordingly allocated.

The applications for confidential treatment

Preliminary observations

12 Article 116(2) of the Court’s Rules of Procedure provides:

‘If an intervention for which application has been made within the period of six weeks prescribed in Article 115(1) is allowed, the intervener shall receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.’

13 That provision lays down the principle that interveners are to receive a copy of every document served on the parties and that it is only by way of derogation that certain secret or confidential documents or information may be excluded from such communication (order in Case T‑30/89 Hilti v Commission [1990] ECR II‑163, publication by way of extracts, paragraph 10, and 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).

14 In that regard, first, the party who makes an application for confidentiality has the task of specifying the documents or information covered and of duly stating the reasons for which they are confidential (order of the President of the Fourth Chamber of the Court in Case T‑383/03 Hynix Semiconductor v Council [2005] ECR II‑621, publication by way of extracts, paragraph 31).

15 The Practice Directions to Parties (OJ 2007 L 232, p. 7) repeat those requirements in paragraph 76, which reads: ‘[a]n application must accurately identify the particulars or passages to be excluded and briefly state the reasons for which each of those particulars or passages is regarded as secret or confidential’. Paragraph 75 of those directions states that an application for confidential treatment which is insufficiently detailed will not be considered (order of the President of the Fifth Chamber of the Court in Case T‑336/04 TVDanmark and Kanal 5 Denmark v Commission [2007] ECR II‑491, paragraphs 42 and 43).

16 Second, when a party makes an application under the second sentence of Article 116(2) of the Rules of Procedure, the President is to give a decision solely on the documents and information the confidentiality of which is disputed (orders in Hynix Semiconductor v Council, paragraph 36, and Telefónica and Telefónica de España v Commission, paragraph 30).

17 A challenge to a request for confidentiality by an intervener 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. Hence, a request for confidential treatment must be upheld in so far as it concerns items which have not been disputed by the intervener, or have not been disputed expressly and precisely (order of the President of the Fifth Chamber of the Court in Case T‑271/03 Deutsche Telekom v Commission [2006] ECR II‑1747, paragraphs 12, 14 and 15, and order in Telefónica and Telefónica de España v Commission, paragraph 31).

18 Third, in so far as an application made under the second sentence of Article 116(2) of the Rules of Procedure is challenged, the President has the task, first of all, of examining whether each of the documents and pieces of information the confidentiality of which is disputed and for which an application for confidential treatment has been made is secret or confidential (see, to that effect, order in Hynix Semiconductor v Council, paragraph 38, and 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 15).

19 The requirement that the applicant state reasons for the application for confidentiality must be assessed in light of the secret or confidential nature of each of the documents and pieces of information covered. A distinction must be drawn between, on the one hand, information which...