Judgment — ECLI:EU:T:2013:366
Date: 2013-07-11
Language of the case: English
Court formation: Eighth Chamber
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Competition;Agreements, decisions and concerted practices;Provisions governing the Institutions;Dominant position;Access to documents
Procedure: Action for annulment - unfounded
Origin: Belgium

summary of the Commission’s applications to extend the time‑limits in the present proceedings and the Court’s responses to them, which were all notified to De Beers as an intervener in the present case as no application for confidential treatment had been made in relation to them. 60 Third, information reproduced a number of times in the pleadings must be regarded as neither secret nor confidential where confidential treatment is not requested for each of the passages in which it appears. In that case, the information concerned will in any event be disclosed to the interveners (orders of the President of the Second Chamber (Extended Composition) of the Court of 9 November 1994 in Case T‑9/93 Schöller Lebensmittel v Commission, not published in the ECR, paragraph 11, and of the President of the Fourth Chamber of the Court of 16 September 1998 in Case T-252/97 Dürbeck v Commission, not published in the ECR, paragraph 13). 61 In the present case, this applies, for example, to (i) the description of the content of the Commission’s letter of 30 June 2008 which is redacted in BVGD’s observations on that letter, whereas that letter has been placed on the file and notified by the Court to De Beers, and to (ii) the arguments concerning the confidentiality of the supplementary rejection decision, also redacted in those observations (point 2 and annex) yet referred to in a number of the applications for confidentiality without confidential treatment being requested for them. 62 For the sake of completeness, reference may also be made to the following: (i) the names of the largest producers of rough diamonds in the world redacted in the first sentence of paragraph 94 of the defence and yet referred to alongside their respective market shares, in particular, in the sentence thereafter for which confidentiality has not been sought; (ii) the account of a case concerning a ‘sightholder’, redacted in paragraph 83 of the reply yet set out in non-confidential Annex C.13; and (iii) the information relating to the status of BVGD’s members and arguments concerning the confidentiality of certain procedural documents referred to in paragraphs 1 to 3 and 28 in the observations on the statement in intervention, taken from the non‑confidential version of the statement in intervention and referred to in a number of the applications for confidentiality – including that for confidential treatment of the defence – yet for which confidentiality has not been sought. 63 Fourth, information which is not by nature business secrets or confidential data, and which BVGD has not shown as amounting to such, must be regarded as neither secret nor confidential (see paragraph 37 above). This applies to the following: (i) the initial decision rejecting BVGD’s complaint (Annex A.55 of the application), contested in the present case, and the supplementary rejection decision (Annex C.10bis of the reply and Annex D.1 of the rejoinder); (ii) the ‘Case orientation’ letter of 29 March 2006 (Annex A.20 of the application) and BVGD’s observations on that letter (Annex A.26 of the application); and (iii) the letters pursuant to Article 7 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2005 L 123, p. 18) (letter of 4 August 2006 reproduced in Annex 35 of the application and letter of 13 November 2007 reproduced, inter alia, in Annex B.6 of the defence) and BVGD’s observations on those letters (its observations of 19 September 2006 on the letter of 4 August 2006 reproduced in Annex A.47 of the application and its observations of 15 January 2008 on the letter of 13 November 2007 reproduced in Annex C.4 of the reply). 64 Reference must also be made in that context to the information concerning the supplementary procedure giving rise to the supplementary rejection decision, redacted in the observations on the letter of 30 June 2008, and also, for the sake of completeness, to the paragraphs of the pleadings for which confidentiality is sought, because of the reference to information contained in, or relating to, the above‑mentioned documents (see, inter alia, paragraphs 86, 114, 143, 144, 170, 194, 238, 260 and 261 of the application; paragraphs 3, 4, 63, 94, 102 and 130 of the defence; paragraphs 2, 33, 36, 49, 72 and 74 of the reply; and paragraphs 6, 18, 34 and 42 of the rejoinder) and the information on the supplementary procedure referred to in the letter of 10 June 2008. 65 First, those documents and passages, which are concerned with or constitute the main documents in the procedures initiated following the complaint giving rise to the present dispute, do not amount to information purely internal to BVGD or to the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18). Second, although BVGD claims, generally, that some of those documents and passages contain business secrets, it does not in any way describe the information in them which constitutes business secrets of a commercial, competition-related, financial or accounting nature (see paragraph 50 above). 66 BVGD puts forward a variety of arguments in order to establish that the documents and passages at issue are nonetheless confidential. However, those arguments cannot succeed. 67 First of all, BVGD submits, in essence, that all the documents in the procedures initiated further to its complaint are confidential since it has requested the Commission to treat them as such and the Commission has granted such confidential treatment, as evidenced by the heading ‘Confidential’, in particular in the contested decision. It is sufficient in that regard to refer to the settled case-law according to which the President cannot be bound by the fact that certain documents and information were accorded confidential treatment by the Commission during the administrative procedure which led to the adoption of the contested act (see order in Hynix Semiconductor v Council, paragraph 40, and the case-law cited). The rules on confidential treatment applied by the Courts of the European Union and by the Commission are different, the former applying the provisions of its Rules of Procedure and the latter those contained, inter alia, in Regulation No 773/2004 and in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). BVGD cannot therefore rely on the fact that De Beers cannot access the documents referred to above under Article 15(1) of Regulation No 773/2004, which restricts such access to parties to whom a statement of objections has been addressed, nor on the application of Regulation No 1049/2001, in order to justify the confidential treatment of those documents before the General Court. 68 BVGD then submits that the documents and information from the Commission reflected the latter’s position before the Court annulled the commitments given by De Beers and that the supplementary procedure initiated further to that annulment is ongoing. Although, by that argument, BVGD expresses its fear of ‘interference’ as a result of disclosing the information concerned with the progress and outcome of the procedures at issue to De Beers, it must be found that there is no longer any likelihood of such interference since the procedures in question have been concluded since 5 June 2008, the date on which the supplementary rejection decision was adopted. 69 BVGD submits, lastly, that De Beers must not be allowed to rely on the contested decision – which rejects the complaints against the SOC arrangements – in order to defend the SOC system. It should be noted in that respect that the rejection of a complaint is not in itself confidential. The person whose conduct is the subject‑matter of the complaint is, in accordance with the Commission’s consistent practice, referred to in its letter of 30 June 2008 (see paragraph 9 above), informed that the complaint has been rejected, and BVGD itself has disclosed that decision by publicly challenging it (see BVGD’s public statements in annex to De Beers’ observations of 19 June 2008, referred to in paragraph 6 above) and also by bringing the present action. 70 In any event, even assuming that BVGD has established that the documents and information referred to in paragraphs 63 and 64 above are secret or confidential, after the competing interests have been weighed up they would be disclosed to De Beers. The documents and the information appear necessary in order for De Beers to exercise its procedural rights, since it could not comment effectively on BVGD’s pleas in law directed against the contested decision if it did not have access to that decision and to all the documents of the procedure – before and after the contested decision – to which BVGD refers on numerous occasions in order to substantiate its arguments (see paragraphs 40 and 42 above). 71 In addition, the exchange of correspondence between BVGD and the Commission, before and after the contested decision was adopted, must be regarded as neither secret nor confidential by nature. That correspondence relates to the following documents: (i) BVGD’s applications concerning the time-limits for the administrative procedure (Annexes A.21 to A.24, A.31, A.32, A.36, A.38, A.39, A.42, A.57, A.59 and A.60 of the application and, for the sake of completeness, Annexes C.3 and C.10 of the reply); (ii) information relating to the stage reached in the procedure and the factors taken into consideration (Annexes A.9 to A.11, A.15, A.17, A.27 to A.29, A.40, A.43 to A.45, A.48 and A.54 of the application and, for the sake of completeness, Annex C.3 of the reply) and to the confidentiality procedure before the Commission (Annexes A.9, A.16, A.36, A.37, A.39 and A.42 of the application); and (iii) requests for access to BVGD’s documents (Annexes A.25, A.27, A.28, A.36, A.37, A.39, A.42, A.49, A.51 to A.53 and A.56 to A.60 of the application, point 1 of the observations on the letter of 30 June 2008 and, for the sake of completeness, Annex C.5 of the reply). Those exchanges of correspondence also include (i) letters from the Commission asking BVGD for its views on the various documents relating to the SOC arrangements in annex to those letters and BVGD’s requests for clarification regarding those documents (Annexes A.30, A.40, A.41 and A.44 of the application and, for the sake of completeness, Annexes C.5 and C.7 of the reply), (ii) letters from BVGD requesting the Commission to provide information or take a view on the various matters relating to the SOC arrangements (Annexes A.12, A.13, A.17, A.46 and A.50 of the application), and (iii) acknowledgments of receipt of documents (Annexes A.13 and A.34 of the application). Those letters cannot be regarded as secret or confidential by nature, since they do not contain information purely internal to BVGD or the Commission (see, to that effect, order in Telecom Italia v Commission, paragraph 18) or specific and precise elements of a commercial, competition-related, financial or accounting nature (see, to that effect, the order in Hynix Semiconductor v Council, paragraph 34). 72 The arguments put forward by BVGD in order to prove that the exchanges of correspondence at issue are nonetheless confidential in the present case must also be rejected. As regards the argument that, since most of the letters concerned were drafted by BVGD’s lawyers, disclosure would breach their duty of confidentiality, it must be noted that although account must be taken of the general principle of law that written communications between lawyer and client are confidential, that principle relates only to communications between lawyer and client (see, to that effect, order in Hilti v Commission, paragraph 11). The annexes in question here are letters between the Commission and BVGD’s lawyers, not between BVGD and its lawyers. As regards the argument that disclosure of the letters concerned would reveal the Commission’s strategy, it must be stated that confidential treatment cannot be granted since it has not been adequately shown how De Beers’ knowledge of that strategy could substantially harm BVGD’s commercial interests (see, to that effect, order of the President of the Fifth Chamber of the Court of 23 April 2001 in Case T-77/00 Esat Telecommunications v Commission, not published in the ECR, paragraph 87). BVGD has not argued – still less proved – harm to its commercial interests specifically as a result of De Beers’ knowledge of the Commission’s position. 73 Furthermore, with regard, in particular, to the exchange of correspondence concerning the requests for access to documents by BVGD, and the fixing of time‑limits, even if that exchange could be regarded as confidential, it cannot be precluded from disclosure to De Beers. In the context of its first plea in law in the present case, BVGD refers to breach of its procedural rights, alleging, in particular, (i) breach of its right of access to the documents on which the Commission based its provisional assessment and (ii) the exertion of undue pressure as a result of needlessly short time-limits being set. Disclosure of the letters in question therefore appears necessary for De Beers to exercise its procedural rights, since the latter could not, without knowledge of all of those letters, comment effectively on BVGD’s arguments concerning them. 74 The correspondence for which BVGD requests confidentiality also contains a number of letters setting out its criticisms of the SOC arrangements, De Beers and also the manner in which the Commission dealt with its complaint concerning the SOC arrangements (Annex A.7, also reproduced in Annex A.16 of the application, Annexes A.8, A.14, A.18, A.19, A.33, A.50 and A.51 of the application and, for the sake of completeness, Annexes C.6 and C.8 of the reply). It must be noted in that regard that only facts (or descriptions of facts) may be categorised as confidential by nature, and not assessments of those facts or purely legal considerations, which are regarded, as a rule, as not capable of being withheld from interveners (see, to that effect, orders in Gencor v Commission, paragraph 32, and in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie, paragraph 26). By its criticisms, BVGD clearly undertakes an assessment of (i) the facts relating to the SOC arrangements, (ii) De Beers and (iii) the manner in which the Commission dealt with its complaint, and develops legal arguments in that regard which are not confidential (see, to that effect, the order of the President of the Fourth Chamber (Extended Composition) of the General Court of 26 February 1996 in Case T‑322/94 Union Carbide v Commission, not published in the ECR, paragraph 47). 75 In addition, the Commission’s requests for information to the ‘sightholders’, brokers, diamond bourses and diamond suppliers, in the context of its investigation into the SOC arrangements (Annexes B.1.1 to B.1.4, B.1.6, B.1.7, B.7.1, B.7.2, B.7.5 and B.7.6 of the defence) must be regarded as neither secret nor confidential. According to case‑law, a request for information drafted in general terms which does not disclose any sensitive data is not confidential (order in Deutsche Post v Commission, paragraph 88). In the present case, the information sought in the documents in the above-mentioned annexes relates, essentially, to the SOC arrangements and De Beers. Admittedly, some of the questions in those requests for information are intended to elicit information specific to the person addressed (in relation, in particular, to their status, composition or production), but do not in themselves contain any such information. 76 Further, the arguments relied on by BVGD in order to justify the confidentiality of the documents and information referred to in paragraphs 74 and 75 above cannot succeed. Its argument that to disclose its criticisms of the SOC arrangements and the involvement of some of its members in the investigation into those arrangements could harm the latter’s future commercial relations with De Beers and Alrosa is unfounded, since the names of the members are not referred to in any of the redacted passages and BVGD itself states that it is the sole legal representative under Belgian law to defend the interests and speak on behalf of all polished diamond dealers, regardless of membership. Accordingly, no link may be established between BVGD’s criticisms and any of its members. BVGD has, moreover, nowhere argued that the exclusion of a number of ‘sightholders’ in December 2007 was the result of their cooperation with the Commission during the investigation into the SOC arrangements. Furthermore, as regards more specifically the relations between BVGD’s members and Alrosa, in view of the obligation on the interveners in proceedings to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in the context of their action (see the order in Hynix Semiconductor v Council, paragraph 47, and the case-law cited), Alrosa must not be informed of the data at issue by De Beers. 77 As regards BVGD’s claim of breach of its fiduciary duty, it must be found, first, that this is in no way substantiated and, second, that, even assuming that by that duty BVGD is referring to its need to maintain its relationships of trust with its members by not disclosing confidential information concerning them and by not repeatedly criticising an important commercial partner of those members, this cannot in the present case lead to the passages in question being granted confidential treatment. This is because the redacted passages do not contain any precise information relating to BVGD’s members and BVGD itself has, in the context of its complaint against De Beers – which was not lodged anonymously – and of a number of public statements annexed to De Beers’ observations of 19 June 2008 (see paragraph 6 above), set out its criticisms of the SOC arrangements. 78 As regards the responses to the questions to the rough diamond suppliers, in Annexes B.7.1, B.7.2, B.7.5 and B.7.6 of the defence, it must be found that only a non-confidential version of those questions and responses, produced by the suppliers themselves, was reproduced in those annexes. Since applications for confidentiality must be limited to what is strictly necessary, and may only exceptionally extend to the entirety of an annexed document (see paragraph 31 above), the applications must be dismissed in so far as they relate to those annexes, since the confidentiality applied for is greater than that sought by the undertakings principally concerned, and BVGD has not advanced any reasons in that regard. 79 It follows from all of the foregoing that BVGD’s applications for confidential treatment must be dismissed in their entirety. The application for a measure of organisation of procedure 80 By letters of 8 February, 29 May and 18 August 2008, BVGD requested the Court to adopt a measure of organisation of procedure so that, were the applications for confidential treatment to be dismissed, De Beers would be prohibited from using, for purposes other than those of the present proceedings, the documents and information disclosed. 81 The measure of organisation of procedure requested is not necessary since, in accordance with the settled case-law referred to in paragraph 76 above, interveners in proceedings are in any event to use copies of pleadings sent to them solely for the purpose of exercising their procedural rights in the context of their action. 82 It follows that the application for a measure of organisation of procedure must be dismissed. On those grounds, THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT hereby orders: 1. The applications of Belgische Vereniging van handelaars in– en uitvoerders geslepen diamant (BVGD) are dismissed. 2. The Registrar shall ensure that a complete version of the procedural documents is served on De Beers and De Beers UK Ltd. 3. A period shall be prescribed within which De Beers and De Beers UK are to submit in writing any additional observations on the information disclosed in accordance with the present order. 4. Costs are reserved. Luxembourg, 8 May 2012. E. Coulon L. Truchot Registrar President * Language of the case: English.