Orders nº T-274/07 of Court of First Instance of the European Communities, November 18, 2008

• Resolution Date: November 18, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-274/07

(Confidentiality)

In Case T‑274/07,

Zhejiang Harmonic Hardware Products Co. Ltd, established in Huabu (China), represented by R. MacLean, Solicitor,

applicant,

v

Council of the European Union, represented by J.-P. Hix, acting as Agent, and by B. O’Connor, Solicitor,

defendant,

supported by

Vale Mill (Rochdale) Ltd, established in Rochdale (United Kingdom),

Pirola SpA, established in Mapello (Italy),

and

Colombo New Scal SpA, established in Rovagnate (Italy),

represented by G. Berrisch and G. Wolf, lawyers,

and by

Commission of the European Communities, represented by H. van Vliet and K. Talabér-Ricz, acting as Agents,

interveners,

APPLICATION for annulment of Council Regulation (EC) No 452/2007 of 23 April 2007, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2007 L 109, p. 12), to the extent that it imposes an anti-dumping duty on imports of ironing boards manufactured by the applicant,

THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,

makes the following

Order

Proceedings

1 By application filed at the Registry of the Court of First Instance on 19 July 2007, Zhejiang Harmonic Hardware Products Co. Ltd (‘the applicant’) brought an action seeking annulment of Council Regulation (EC) No 452/2007 of 23 April 2007, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People’s Republic of China and Ukraine (OJ 2007 L 109, p. 12; ‘the contested regulation’), to the extent that it imposes an anti-dumping duty on imports of ironing boards manufactured by the applicant.

2 By documents filed at the Registry of the Court on 25 and 26 October 2007 respectively, Vale Mill (Rochdale) Ltd, Pirola SpA and Colombo New Scal SpA (‘the intervening companies’), firstly, and the Commission, secondly, applied to intervene in the present case in support of the form of order sought by the Council, pursuant to Article 115 of the Rules of Procedure of the Court of First Instance.

3 The applications for intervention were served on the parties in accordance with Article 116(1) of the Rules of Procedure. The Council submitted no objections to the applications for intervention. The applicant did not oppose the Commission’s application for intervention, but, by document filed at the Registry of the Court on 7 December 2007, objected to the granting of leave to intervene to the intervening companies.

4 By letters filed on 3 and 7 December 2007 respectively, the Council and the applicant requested, pursuant to Article 116(2) of the Rules of Procedure, that certain documents annexed to the defence and to the originating application be excluded from the copy of the procedural documents to be served on the intervening companies and produced, for the purpose of service, non-confidential versions of the annexes to the defence and the originating application.

5 By order of 7 January 2008, the President of the Sixth Chamber of the Court of First Instance granted the intervening companies leave to intervene in support of the form of order sought by the Council and reserved his decision on the merits of the applications for confidential treatment with regard to the intervening companies.

6 By letter filed at the Registry of the Court on 21 May 2007, the intervening companies challenged the applications for confidential treatment.

7 By letter of 27 June 2008, the Court sent questions to the applicant and the Council, to which both the latter replied within the time-limits prescribed.

The applications for confidential treatment

Subject-matter of the applications

8 In their letters filed at the Registry of the Court of First Instance on 3 and 7 December, the Council and the applicant, respectively, applied for confidential treatment in respect of Annex B1 in its entirety, and in respect of Annexes A4, A5, A6, A8, A9, A10 and A14, in their entirety.

9 However, in its reply to the Court’s questions, filed at the Registry on 14 July 2008, the Council withdrew its application for confidential treatment of Annex B1. In addition, in its reply to the Court’s questions, the applicant withdrew its application for confidential treatment in respect of two documents contained in Annex A8, namely the letter on final general disclosure and a document entitled ‘Points Raised by Cromwell & Moring’.

10 Consequently, following the Council’s withdrawal of its application for confidential treatment and the applicant’s partial withdrawal of its application for confidential treatment, there remains only the applicant’s application for confidential treatment in respect of the annexes A4, A5 and A6 in their entirety, in respect of the specific disclosure document in Annex A8, and in respect of Annexes A9, A10 and A14 in their entirety.

Arguments of the parties

11 In support of its application for confidentiality, the applicant claims that those documents must be subject to confidentiality in their entirety on the ground that it would be impossible to produce a non-confidential version of them. In that regard, it submits, on the one hand, that the documents have been treated as confidential in the course of the anti-dumping procedure, which means those documents contain significant amounts of confidential information and, on the other hand, that those documents contain information which would allow the intervening companies to acquire a commercial advantage.

12 The applicant submits, furthermore, that examination of the issue of whether it met the conditions required for it to be granted market economy treatment comes within the exclusive competence of the Community institutions, and does not in any way concern the intervening companies, which cannot have any influence or put forward an opinion in that regard. Likewise, according to the applicant, the issue of the breach of its rights of defence cannot in any way involve the intervening companies.

13 In reply to the Court’s questions, the applicant referred to the content of Annexes A4, A5, A6, of the specific disclosure document contained in Annex 8, and of Annexes A9, A10 and A14, and reiterated its request for confidential treatment in respect of those documents in their entirety, emphasising their allegedly confidential nature and the prejudice it would suffer, in its opinion, if those documents were to be served on the intervening companies.

14 The intervening companies take the view that there is no need to grant confidential treatment to those documents in their entirety and contend that the details omitted are described in such a vague way that it is impossible for them to assess whether that information actually merits confidential treatment.

15 The interveners also contend that the fact that the documents were subject to confidential treatment during the administrative procedure does not prejudice the application for confidential treatment before the Court of First Instance. They contend, lastly, that they have an interest in the dismissal of the action and, therefore, in taking part in the dispute on the issues raised during the proceedings.

The findings of the President

16 Article 116(2) of the Rules of Procedure provides that:

‘[T]he 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.’

17 This provision lays down the principle that interveners are to receive a copy of every pleading served on the parties, and it is only by way of derogation that it permits certain secret or confidential documents or information not to be sent to them (order of the Court of First Instance of 4 April 1990 in Case T-30/89 Hilti v Commission [1990] ECR II-163, publication by extracts, paragraph 10, and, order of the President of the Fourth Chamber of the Court of First Instance of 22 February 2005 in Case T-383/03 Hynix Semiconductor v Council [2005] ECR II-621, publication by extracts, paragraph 18).

18 In that regard, it should be borne in mind, first, that 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 in Hynix Semiconductor v Council, paragraph 31). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restates those requirements in point 76, according to which ‘[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’. It should be noted, on that point, that the first subparagraph of Article 6(2) of the Instructions to the Registrar of the Court of First Instance (OJ 2007 L 232, p. 1) provides that an application for confidential treatment must be made in accordance...