Provisional text
ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
11 January 2017 *
(Confidentiality – Challenge by an intervener)
In Case T‑675/15,
Shanxi Taigang Stainless Steel Co. Ltd, established in Taiyuan (China), represented by N. Niejahr, lawyer, and F.M. Carlin, Barrister,
applicant,
v
European Commission, represented by J.-F. Brakeland and A. Demeneix, acting as Agents,
defendant,
supported by
Eurofer, Association Européenne de l’Acier, ASBL, established in Luxembourg, represented initially by J. Killick and G.F. Forwood, Barristers, and subsequently by J. Killick, G.F. Forwood and C. Van Haute, lawyer,
intervener,
ACTION for annulment of Commission Implementing Regulation (EU) 2015/1429 of 26 August 2015 imposing a definitive antidumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10), in so far as that regulation concerns the applicant,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1        By application lodged at the Registry of the General Court on 20 November 2015, the applicant, Shanxi Taigang Stainless Steel Co. Ltd, brought an action seeking annulment of Commission Implementing Regulation (EU) 2015/1429 of 26 August 2015 imposing a definitive antidumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10) (‘the contested regulation’), in so far as that regulation concerns the applicant.
2        By document lodged at the Court Registry on 18 March 2016, Eurofer, Association Européenne de l’Acier, ASBL, (‘Eurofer’) applied for leave to intervene in support of the form of order sought by the Commission.
3        By document lodged at the Court Registry on 10 May 2016, the applicant requested that certain information in the application be treated as confidential in regard to Eurofer if the latter were to be granted leave to intervene. The applicant attached a non-confidential version of the application to that request.
4        By order of 19 July 2016, Eurofer was granted leave to intervene in support of the form of order sought by the Commission. Since, in accordance with Article 144(2) of the Rules of Procedure of the General Court, the applicant had requested confidential treatment for certain information contained in the application, that order provisionally restricted the communication of the application to Eurofer to the applicant’s abovementioned non-confidential version, pending the submission of any observations by Eurofer on the application for confidential treatment.
5        By document lodged at the Court Registry on 6 September 2016, Eurofer challenged the application for confidential treatment.
The application for confidential treatment
The subject matter of the application for confidential treatment
6        The request for confidential treatment in regard to Eurofer concerns certain figures contained in Annex A.12 to the application, relating to the communication of the Commission’s definitive disclosure document of 23 June 2015. More particularly, the applicant requests confidential treatment in respect of:
–        the figures in columns B, C, D, E, U, W and Y of the dumping calculation table (Annex 2.1 to the communication which is the subject of Annex A.12), in so far as those figures relate to the quantity and value of the applicant’s shipments of the product concerned into the European Union, and the information in column A of the same table, which the applicant alleges could, if read in conjunction with the information in column F of that table, reveal the value of specific Product Control Numbers (PCNs); and
–        the figures in columns (2), (3), (4) and (5) of the injury calculation table (Annex 3.1 to the communication which is the subject of Annex A.12), in so far as those figures also relate to information on the quantity and value of the shipments of the product concerned into the European Union.
Whether the application for confidential treatment is well founded
7        Article 144(7) of the Rules of Procedure of the General Court states:
‘If the application to intervene is granted, the intervener shall receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication pursuant to paragraph 5.’
8        That provision lays down the principle that interveners are to receive a copy of every pleading served on the parties and permits only by way of derogation that certain secret or confidential documents or information may be excluded from that communication (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 11 and the case-law cited).
9        In that regard, the party which makes an application for confidential treatment is required to specify the documents or information covered and to state duly the reasons why they are claimed to be confidential (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12 and the case-law cited).
10      In so far as an application brought under Article 144(2) of the Rules of Procedure is contested, the President is required, first of all, to examine whether each of the documents and items of information the confidentiality of which is disputed, and for which an application for confidential treatment has been made, is secret or confidential (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 15 and the case-law cited).
11      The requirement to state reasons for the application for confidentiality to which the applicant is subject must be assessed in the light of the secret or confidential nature of each document and item of information covered. A distinction must be drawn between, on the one hand, information which is inherently secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, on the other hand, documents or information which may be secret or confidential for a reason that the applicant must provide (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 16 and the case-law cited).
12      Thus, the secret or confidential nature of the documents or items of information for which no statement of reasons is provided other than that consisting of the description of their content will be accepted only in so far as that information may be considered to be inherently secret or confidential (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, EU:T:2015:745, paragraph 17 and the case-law cited).
13      As regards business secrets, that concept covers, inter alia, information of a commercial, competition-related, financial or accounting nature, where such information is not normally accessible to third parties outside the undertaking and where, because of its age, it is not historic. Information can lose its confidential nature where the general public or specialised circles are able to have access to it. Generally, data going back five years or more are historic, except where there is evidence of a particular interest in the protection of their confidentiality (see order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 13 and the case-law cited).
14      Where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are secret or confidential, it is then for the President to assess and weigh up the competing interests for each document and item of information (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 18 and the case-law cited).
15      Thus, where confidential treatment is requested in the interests of the applicant, the President weighs in the balance, for each document or item of information, the applicant’s legitimate concern to prevent serious harm to its interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 19 and the case-law cited).
16      In any event, an applicant for confidential treatment must, in view of the adversarial and public nature of judicial proceedings, envisage the possibility that some of the secret or confidential documents or information which it has decided to place on the file may appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to the latter (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 20 and the case-law cited).
17      It is in the light of those principles that the application for confidential treatment in the present case must be examined, by drawing a distinction between, on the one hand, the data at issue contained in Annex A.12, with the exception of the information concerning the PCNs, and, on the other hand, the information concerning those PCNs.
The information relating to the dumping calculation and the injury calculation contained respectively in Annexes 2.1 and 3.1 set out in Annex A.12, excluding the information concerning the PCNs
18      According to Eurofer, the full deletion of all the figures in columns B, C, D, E, U, W and Y of the table in Annex 2.1, concerning the dumping calculation, which relate to the quantity, value, adjustments and average price of the export sales of the product in question, and all the figures in columns (2), (3), (4) and (5) of the table in Annex 3.1, concerning the injury calculation, in relation to the exported quantities, export value, post importation adjustments and weighted average unit sales price, goes beyond what is strictly necessary. It is, according to Eurofer, sufficient for those figures to be replaced by appropriate ranges. Alternatively, the applicant should confirm that it does not intend to rely on the information at issue.
19      It must be noted that Eurofer does not dispute the confidential nature of the information at issue in that it comes within the category of business secrets, within the meaning of paragraph 13 above, while requesting, in essence, that that information be replaced by appropriate ranges that provide an indication of the scale of the figures concerned.
20      However, it is not apparent from the file that knowledge of such a scale would be necessary for the exercise of Eurofer’s procedural rights, when the figures in question do not appear to be the subject of dispute in the proceedings between the parties.
21      Accordingly, the application for confidential treatment must be granted in regard to the information at issue relating to the dumping calculation and the injury calculation contained respectively in Annexes 2.1 and 3.1 set out in Annex A.12, excluding the information concerning the PCNs.
The information concerning the PCNs contained in Annex 2.1 in Annex A.12
22      Eurofer maintains that the information on the PCNs set out in column A of the table in Annex 2.1, concerning the dumping calculation, is non-confidential.
23      The applicant claims that that information is confidential on the ground that it could reveal the value of specific PCNs of the applicant when read in conjunction with the information in column F of the same table concerning the export value after adjustments.
24      Suffice it to note here that, in so far as confidential treatment has been granted, for the reasons set out in paragraphs 18 to 20 above, to data concerning, inter alia, the quantity of the products marketed (column B), the joint reading of the PCNs and the values in column F of the table does not, by itself, enable the unit prices to be calculated.
25      For that reason alone, it is not appropriate to grant the application for confidential treatment vis-à-vis Eurofer in respect of the information in column A of the table concerning the dumping calculation which relates to the PCNs.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The application for confidential treatment made by Shanxi Taigang Stainless Steel Co. Ltd vis-à-vis Eurofer, Association Européenne de l’Acier, ASBL, with regard to the figures in columns B, C, D, E, U, W and Y in the table in Annex 2.1, concerning the dumping calculation relating to the quantity, value, adjustments and average export sales price of the product concerned, and to all the figures in columns (2), (3), (4) and (5) of the table in Annex 3.1, concerning the injury calculation relating to the exported quantities, export value, post importation adjustments and weighted average unit sales price, is granted.
2.      The remainder of the application for confidential treatment is rejected.
3.      The Registrar shall set a date for Shanxi Taigang Stainless Steel Co. Ltd to provide a non-confidential version of the application, in accordance with paragraphs 1 and 2 of the operative part of the present order.
4.      The Registrar shall serve the non-confidential version of the application filed by Shanxi Taigang Stainless Steel Co. Ltd, in accordance with paragraphs 1 to 3 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, 11 January 2017.
E. CoulonM. Prek
RegistrarPresident