Judgment;Abstract — ECLI:EU:T:2019:831
Date: 2019-12-03
Language of the case: English
Court formation: Second Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded

summary table in that respect. By claiming confidential treatment for the entire content of the table in Annex B.4 (pages 31 to 39), the applicant has prevented the intervener from providing any meaningful comment. 46 Fourthly, the intervener disputes, in the context of the second plea, concerning whether the domestic sales of the product concerned were properly accounted for, the confidentiality claimed in respect of the information on production and sales volumes in the table reproduced in Annex A.4, point 2.2.1.1 (page 138), which illustrates the Commission’s approach at the stage of the provisional regulation. 47 The intervener claims that if it does not have access to the information referred to in paragraphs 43 to 46 above, it will find it impossible to comment meaningfully on the issues which are central to the case, which relate to the calculation of the normal value of the product concerned. In the alternative, the applicant should have replaced that information with appropriate ranges that provide an indication of the range of values of the figures concerned in order for Eurofer to be able to submit meaningful comments on the information provided and the arguments raised by the applicant. 48 Therefore, although the intervener does not dispute the confidential nature of the information redacted in Annexes A.4, A.5, A.8, A.9, A.10, B.1, B.2, B.3 and B.4, referred to in paragraphs 43 to 46 above, it nonetheless takes the view that access to that information or, at least to a range of values, is necessary to enable it to exercise its procedural rights. 49 The information in question relates to the calculation of the production costs of the product concerned, the methods for taking account of yield loss and the determination of the domestic volumes, which are central to the issues raised in the present case, which relates to the correct calculation of the normal value of the product concerned. In support of their opposing points of view, the applicant and the Commission refer to the figures covered by the application for confidential treatment, which it is essential for the intervener to be aware of, at the very least in the form of a range of values, in order for it to understand the arguments of the parties and to provide meaningful comment. 50 Accordingly, a weighing up of the competing interests leads to the conclusion that access to the information covered in the documents at issue, the confidential nature of which is conceded, appears necessary for the exercise of the intervener’s procedural rights. The applicant is therefore requested, in accordance with the submissions made by the intervener in the alternative, to replace the actual values with relevant ranges which deviate by no more than 10% from the actual figures. 51 Consequently, the application for the confidential treatment of the various items of information listed in paragraphs 43 to 46 above is granted only on condition that the applicant indicates, in the form of the ranges which deviate by no more than 10% from the actual figures, the redacted figures referred to in paragraphs 43 to 46 above (see, to that effect and by analogy, orders of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraphs 51, 52, 54, 55, and 92, and of 13 April 2015, PT Pelita Agung Agrindustri v Council, T‑121/14, not published, EU:T:2015:324, paragraph 33). 52 In the second place, the intervener claims that the application for confidential treatment of the PCNs in the Commission’s provisional and final disclosure documents, namely in Annex A.4, page 136, point 2.1.3 and Annex A.6.1, page 166, point 2.1.2, should be rejected. PCNs cannot be regarded as confidential as they are merely harmonised codes devised by the Commission and used by producers to provide sales and cost information. 53 On that point, it is sufficient to note that, since the information relating to the PCNs may, in conjunction with other information, be confidential in nature (see, to that effect, order of 11 January 2017, Shanxi Taigang Stainless Steel v Commission, T‑675/15, not published, EU:T:2017:11, paragraph 24), it is for the intervener to explain how the information relating to the PCNs is necessary in the present case for the exercise of its procedural rights, which it has not done, with the result that the application for the confidentiality of those PCNs must be granted. 54 In the third place, the intervener submits that various redactions made by the applicant go beyond its claims as set out in its application and must, for that reason alone, be rejected as excessive. 55 The redactions which should be rejected for that reason are as follows: – first, the redaction of the raw material code in Annex A.2, page 76, point F‑3.3, when the application is justified on the basis of the secret nature of the information relating to the purchase cost of raw materials; – secondly, the redaction, in Annex A.4, page 135, point 2.1.1, of the quantities produced and the representativeness of used grades in terms of production volume, when the application is justified on the basis of the secret nature of information on production costs; – thirdly, the redaction in Annex B.1, pages 2 to 14, of the description of profit and loss categories and of entire tables, without disclosing their headings, when the application is justified on the basis of the secret nature of information on the applicant’s profits and losses; – fourthly, the redaction, in Annex B.2, pages 16 to 27, of entire tables, without disclosing their headings, when the application is justified on the basis of the applicant’s manufacturing costs; and – fifthly, the redaction of voucher numbers and voucher dates, material codes, purchase items, names of suppliers, (un)related status of suppliers, purchased quantities and the unit of measurement in Annex C.1, pages 24 to 27, when the application is justified on the basis of the secret nature of production costs. 56 First, it should be stated that, in so far as the challenge covers the information redacted in Annex B.1, pages 2 to 14 and Annex B.2, pages 16 to 27, the application for confidential treatment has been granted in paragraph 51 above, provided that the applicant indicates the redacted figures, in the form of a range of values which deviate by no more than 10% from the actual figures, it being specified that the related headings and descriptive information in the tables in question must be disclosed. 57 Second, it is sufficient to note that the intervener does not dispute that the information redacted in Annexes A.2, A.4 and C.1 is confidential, but simply submits that the redactions go beyond the justification put forward by the applicant in support of its application, without explaining how that information is necessary for the exercise of its procedural rights. Consequently, it is necessary to grant the application for confidential treatment with regard to the information referred to in paragraph 55 above, which is redacted in Annexes A.2, A.4 and C.1. 58 In the fourth place, the intervener contends that many items of redacted information should be replaced by appropriate ranges. In its view, the full deletion of the information in many cases goes beyond that which is strictly necessary. Replacing the figures in question by a range of values, rather than redacting them completely, would allow the applicant’s rights, as well as those of the intervener, to be safeguarded. 59 This is the case as regards the redacted information relating to: – the volume of the applicant’s sales to a domestic customer (application, paragraph 47, page 21); – the percentage of hot-rolled coils produced by a rolling mill (Annex A.2, point C‑3.4, page 42); – the applicant’s production yield information (Annex A.2, point C‑3.5, page 42); – the purchase cost of raw materials (Annex A.2, point F‑3.3, page 76); – the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88); – the payment terms for sales (Annex A.2, point H-2.7, page 91); – cost of production information (Annex A.4, point 2.1.1, page 135); – the financial situation (Annex A.4, point 2.1.4, pages 136 and 137); – production and sales volumes (Annex A.4, point 2.2.1.1, page 138); – sales volumes (Annex A.4, point 2.2.1.2, page 138); – the percentage of SG&A expenses in terms of total invoices (Annex A.4, point 2.3.1.2, pages 139 to 140) ; – the average unit post-importation cost (Annex A.4, point (d), page 141); – the profit and loss margin (Annex A.4, point (g), page 142); – the product category according to cost, yield loss quantity, input and output quantities and the unit conversion cost (Annex A.5, point I.A, pages 147 to 149); – manufacturing costs (Annex A.5, point I.B, page 152); – production and sales volumes and the percentage of domestic sales excluded (Annex A.5, point II.B, pages 156 to 158); – domestic sales volumes (Annex A.5, Footnote No 26, page 158); – production costs (Annex A.6.1, point 2.1.2, page 166); – sales volume (Annex A.6.1, point 2.2.1, page 166); – post-importation costs (Annex A.6.1, point 1, page 167); – production costs (Annex A.7, page 190); – manufacturing costs (Annex A.8, pages 193 to 210, Annex A.9, page 211, and Annex A.10, page 212 to 221); – the applicant’s profit and loss ratio (defence, paragraph 18, page 5); – the percentage of domestic sales (defence, paragraph 19, page 6); – the amount of the scrap deduction (defence, paragraph 21, page 6); – the applicant’s production costs (defence, paragraph 24, page 7); – input and output quantities (defence, paragraph 34, page 10); – the production, sales and import volumes in Taiwan based on data collected from the respondents (defence, paragraph 43, page 12); – the volume of the applicant’s domestic sales (defence, paragraph 45, page 13); – the volume of sales to a particular domestic customer (defence, paragraph 48, page 14); – the profit and loss ratio of the applicant’s domestic sales (defence, paragraph 66, page 18); – the applicant’s profit and loss information (Annex B.1, pages 2 to 14); – the applicant’s manufacturing costs (Annex B.1, pages 16 to 27); – the applicant’s production costs (Annex B.3, page 29, and Annex B.4, pages 31 to 39); – the percentage of purchased hot-rolled coils in terms of overall consumption (reply, point 11.a, page 4); – the profit and loss ratios (reply, Footnote No 25, page 10); – production costs (Annex C.1, pages 24 to 27); – sales information concerning scrap (Annex C.3, pages 29 to 33); – sales volumes (Annex C.5, pages 36 and 37); – sales information (Annex C.7, page 46); and – the unit sales price ranges in the Commission’s confidentiality note relating to the undercutting and injury calculations in the Commission’s final disclosure document (Annex A.6.1, page 167). 60 As is clear from paragraphs 43 to 51 above, the application for confidential treatment has now been granted with regard to the information mentioned in paragraph 59 above, in so far as it relates to: – production costs (Annex A.4, point 2.1.1, page 135); – production and sales volumes (Annex A.4, point 2.2.1.1, page 138); – the product category according to cost, yield loss quantity, input and output quantities and the unit conversion cost (Annex A.5, point I.A, pages 147 to 149); – manufacturing costs (Annex A.5, point I.B, page 152); – the applicant’s profit and loss information (Annex B.1, pages 2 to 14); – manufacturing costs (Annex A.8, pages 193 to 210, Annex A.9, page 211, Annex A.10, pages 212 to 221, and Annex B.2, pages 16 to 27); and – the applicant’s production costs (Annex B.3, page 29, and Annex B.4, pages 31 to 39). 61 Consequently, what remains to be examined, at this stage, is whether the objections to the application for confidential treatment are well founded, in so far as they concern the redacted information referred to in paragraph 59 above, which relates to: – the volume of the applicant’s sales to a domestic customer (application, paragraph 47, page 21); – the percentage of hot-rolled coils produced by a rolling mill (Annex A.2, point C‑3.4, page 42); – the applicant’s production yield information (Annex A.2, point C‑3.5, page 42); – the purchase cost of raw materials (Annex A.2, point F‑3.3, page 76); – the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88); – the payment terms for sales (Annex A.2, point H-2.7, page 91); – financial situation (Annex A.4, point 2.1.4, pages 136 and 137); – sales volumes (Annex A.4, point 2.2.1.2, page 138); – the percentage of SG&A expenses in terms of total invoices (Annex A.4, point 2.3.1.2, pages 139 and 140); – the average unit post-importation cost (Annex A.4, point (d), page 141); – the profit and loss margin (Annex A.4, point (g), page 142); – production and sales volumes and the percentage of domestic sales excluded (Annex A.5, point II.B, pages 156 to 158); – the volume of domestic sales (Annex A.5, Footnote No 26, page 158); – production costs (Annex A.6.1, point 2.1.2, page 166); – sales volume (Annex A.6.1, point 2.2.1, page 166); – post-importation costs (Annex A.6.1, point 1, page 167); – production costs (Annex A.7, page 190); – the applicant’s profit and loss ratio (defence, paragraph 18, page 5); – the percentage of domestic sales (defence, paragraph 19, page 6); – the amount of the scrap deduction (defence, paragraph 21, page 6); – the applicant’s production costs (defence, paragraph 24, page 7); – input and output quantities (defence, paragraph 34, page 10); – the production, sales and import volumes in Taiwan based on data collected from the respondents (defence, paragraph 43, page 12); – the volume of the applicant’s domestic sales (defence, paragraph 45, page 13); – the volume of sales to a particular domestic customer (defence, paragraph 48, page 14); – the profit and loss ratio of the applicant’s domestic sales (defence, paragraph 66, page 18); – the percentage of purchased hot-rolled coils in terms of overall consumption (reply, point 11.a, page 4); – profit and loss ratios (reply, Footnote No 25, page 10); – production costs (Annex C.1, pages 24 to 27); – sales information concerning scrap (Annex C.3, pages 29 to 33); – sales volumes (Annex C.5, pages 36 and 37); – sales information (Annex C.7, page 46); and – the unit sales price ranges in the Commission’s confidentiality note relating to the undercutting and injury calculations in the Commission’s final disclosure document (Annex A.6.1, page 167). 62 In that regard, the intervener does not dispute that the information in question is confidential, but submits that the redactions should be replaced by ranges that will give an indication of the span of figures concerned in order to safeguard its procedural rights. 63 For the same reasons as those given in paragraph 49 above, the weighing up of the competing interests leads to the conclusion that, apart from the information relating to the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88) and the payment terms for sales (Annex A.2, point H-2.7, page 91), the information referred to in the documents in question appears necessary for the exercise the intervener’s procedural rights, and the applicant is requested to replace, in accordance with the intervener’s submissions, the actual figures with appropriate ranges which deviate by no more than 10% from those figures. 64 The information relating to the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88) and to the payment terms for sales (Annex A.2, point H-2.7, page 91) is not directly connected to the issues raised in the present case, which relate to the correct calculation of the normal value of the product concerned, as stated in paragraph 49 above. 65 Consequently, the application for confidential treatment of the various items of information referred to in paragraph 61 above is granted and the applicant is requested to replace the figures in question with ranges which deviate by no more than 10% from the actual figures, apart from the figures relating to the sales threshold for granting sales rebates (Annex A.2, point H-2.3, page 88) and the payment terms for sales (Annex A.2, point H-2.7, page 91), the redaction of which is justified. 66 Lastly, as regards the application for confidential treatment in relation to the observations submitted by the applicant on the statement in intervention, described in paragraph 39 above, the intervener submits that the complete redaction of the information relating to the production costs in the table reproduced in Annex E.2 (extract of Annex 2.105 of Exhibit 19 ‘COM Calculation Worksheet-2013YEAR-YUSCO-1120’ of the Commission's provisional disclosure document — table entitled ‘SLAB’) is, in any event, disproportionate, in particular since it appears that that information does not refer to China, but rather to Vietnam, and appears to cover a different period than that at issue in the present case. Accordingly, in order to be able to exercise its procedural rights effectively with regard to that information, the intervener should have access to the information in question or to the range of the figures concerned. 67 The same applies to the table in Annex E.3, which also does not even show the headings indicating the type of information contained in the various columns. The applicant must disclose the information contained in that table, or, at least, those headings and replace the figures with ranges giving an indication of the span of those figures. 68 The intervener does not dispute that the figures redacted in Annexes E.2 and E.3 are confidential, in that they contain information relating to the production costs of the product concerned and the price and the quantities of the raw materials used in the production of the product concerned, but submits that the information redacted should be disclosed or, at least, replaced by ranges that will give an indication of the span of the figures in question, in order to safeguard its procedural rights. 69 First, there is no reason why the headings indicating the type of information in the various columns in the table in Annex E.3 should be redacted, with the result that the application for confidentiality must be rejected in so far as it relates to those headings. 70 Second, for the same reasons as those set out in paragraph 49 above, the weighing up of competing interests leads to the conclusion that the figures redacted in Annexes E.2 and E.3 appear to be necessary for the exercise of the intervener’s procedural rights. Accordingly, the information redacted in Annexes E.2 and E.3 must be disclosed and the applicant is requested to indicate the figures in the form of a range which deviate by no more than 10% from the actual figures. On those grounds, THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT hereby orders: 1. The application for confidential treatment is granted in so far as it concerns the information referred to in paragraphs 24, 27, 29, 30, 32, 37, 38, 40, 51, 53, 57, 65 and 70 of the present order, vis-à-vis Eurofer, Association Européenne de l’Acier, ASBL. The figures referred to in paragraphs 51, 65 and 70 of the present order shall be replaced by figures which deviate by no more than 10% from the actual figures. 2. The application for confidentiality is dismissed as to the remainder. 3. The Registrar shall set a date for Yieh United Steel Corp. (Yusco) to provide a non-confidential version of the application, the defence, the reply, the annexes thereto and the annexes to its observations on the statement in intervention, in accordance with paragraph 1 of the operative part of the present order. 4. The Registrar shall serve the non-confidential version of the application, the defence, the reply, the annexes thereto and the annexes to its observations on the statement in intervention filed by Yieh United Steel Corp. (Yusco), in accordance with paragraphs 1 and 2 of the operative part of the present order, on Eurofer, Association Européenne de l’Acier, ASBL, and shall set a date for the latter to submit any observations supplementing its statement in intervention lodged at the Court Registry on 10 October 2016. 5. The costs are reserved. Luxembourg, 27 September 2017. E. Coulon M. Prek Registrar President * Language of the case: English.