ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
13 October 2009 (*)
(Confidentiality – Objection – Intervener – Article 116(6) of the Rules of Procedure of the Court of First Instance)
In Case T‑11/07,
Frucona Košice a.s., established in Košice (Slovak Republic), represented by B. Hartnett, Barrister, and O. Geiss, lawyer,
applicant,
v
Commission of the European Communities, represented by B. Martenczuk and K. Walkerová, acting as Agents,
defendant,
supported by
St. Nicolaus - trade a.s., represented by N. Smaho, lawyer,
intervener,
APPLICATION for annulment of Commission Decision 2007/254/EC of 7 June 2006 on State aid C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Fruncona Košice, a.s. (OJ 2007 L 112, p. 14),
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
having regard to Article 116(6) of the Rules of Procedure of the Court of First Instance,
makes the following
Order
Procedure
1        By application lodged at the Registry of the Court of First Instance on 12 January 2007, the applicant brought an action against the Commission Decision of 7 June 2006 on State aid C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s. (OJ 2007 L 112, p. 14).
2        By document lodged at the Court Registry on 8 June 2007, the undertaking St. Nicolaus trade, a.s. sought leave to intervene in these proceedings in support of the Commission.
3        By order of 11 October 2007, the President of the Second Chamber of the Court of First Instance found that that application had been made in accordance with Article 115 of the Rules of Procedure of the Court of First Instance and granted leave to intervene. However, the President of the Second Chamber also found that, given that the application to intervene was made after the expiry of the period of six weeks prescribed in Article 115(1) of the Rules of Procedure, the intervener has the rights provided for in Article 116(6) of those rules.
4        By letters of 22 July 2009, sent to the applicant and the defendant (‘the parties’), the Court, by way of measures of organisation of procedure, put questions to them and asked them to produce documents (‘the measures of organisation of procedure’).
5        By letters of 17 August 2009, the Court notified to the parties their respective replies to the measures of organisation of procedure. At the same time, the Court invited the parties to submit applications for confidential treatment of those replies.
6        By letters of 24 and 26 August 2009, the applicant requested that certain parts of its reply and of the Commission’s reply to the measures of organisation of procedure receive confidential treatment and, on this basis, that they be omitted from the documents in the file communicated to the intervener (‘the applications for confidential treatment of the replies to the measures of organisation of procedure’). In addition, for the purposes of that communication to the intervener, the applicant submitted a non‑confidential version of those replies.
7        By letter of 11 September 2009, the intervener contested the applications for confidential treatment of the applicant’s and the Commission’s replies to the measures of organisation of procedure (‘the replies to the measures of organisation of procedure’).
8        By letter of 3 September 2009, the applicant informed the Court that the Report for the Hearing does not contain any confidential data.
9        By letter of 7 September 2009, the Commission applied for confidential treatment in respect of certain paragraphs of the Report for the Hearing (‘the application for confidential treatment of the Report for the Hearing’).
10      By letter of 2 October 2009, the intervener contested the application for confidential treatment of the Report for the Hearing.
The application for confidential treatment
Preliminary observations
11      According to Article 116(2) of the Rules of Procedure of the Court of First Instance, ‘[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’, but ‘[t]he President may, however, on application by one of the parties, omit secret or confidential documents’.
12      Moreover, Article 116(6) of the Rules of Procedure provides that, ‘[w]here the application to intervene is made after the expiry of the period of six weeks prescribed in Article 115(1), the intervener may, on the basis of the Report for the Hearing communicated to him, submit his observations during the oral procedure’.
13      Thus, the intervener’s procedural rights differ according to whether the application to intervene is made before the expiry of the period of six weeks prescribed in Article 115(1) of the Rules of Procedure of the Court of First Instance or after the expiry of that period but before the decision to open the oral procedure. Where the intervener has made his application before the expiry of that period, he is entitled to participate in both the written and the oral procedure, to receive a copy of the pleadings in the case and to submit a statement in intervention. On the other hand, where the intervener has made his application after the expiry of that period, he is entitled only to participate in the oral procedure, to receive a copy of the Report for the Hearing and to submit his observations on the basis of that report at the hearing (Case C‑113/07 P SELEX Sistemi Integrati SpA v Commission and Eurocontrol [2009] ECR I‑0000, paragraph 36).
14      In the present case, the President of the Second Chamber of the Court of First Instance found, by order of 11 October 2007, that the intervener’s application to intervene was made after the expiry of the period of six weeks prescribed in Article 115(1) of the Rules of Procedure, and that it follows that the intervener has the rights provided for in Article 116(6) of those rules.
15      It is in the light of the foregoing considerations that it is appropriate to assess, first, the applications for confidential treatment of the replies to the measures of organisation of procedure and, second, the application for confidential treatment of the Report for the Hearing.
The applications for confidential treatment of the replies to the measures of organisation of procedure
Arguments of the parties
16      In support of its applications for confidential treatment of the replies to the measures of organisation of procedure, the applicant relies on two grounds based on (i) protection of its legitimate commercial interests and (ii) protection of the interests of its individual shareholders.
17      As regards the first ground, the applicant submits that the disclosure of twenty‑two parts of the Commission’s reply to the measures of organisation of procedure (‘the twenty‑two parts of the Commission’s reply’) and of various parts of Annexes 3.H, 3.I, 3.J, 3.L and 3.N to its own reply to the measures of organisation of procedure would be damaging to its legitimate commercial interests. Those replies contain matters of a confidential nature regarding (i) details of the balance of the bank accounts and cash of the applicant, (ii) appraised values of the applicant’s assets, (iii) details of the applicant’s tax debt, (iv) certain details regarding the inventory of the applicant, (v) a balance of payables to the applicant’s creditors and (vi) payroll and social security expenses of the applicant.
18      Accordingly, first, the applicant requests that the following twenty‑two parts of the Commission’s reply receive confidential treatment:
–        Annex R2 – Letter from the Tax Headquarters of the Slovak Republic to the Ministry of Finance of the Slovak Republic dated 27 March 2006, at page 11 – reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004 in the second paragraph;
–        Annex R2 – Table entitled “Income and Expenses on Bank Accounts and Cash Counter” (in Slovak: Príjmy a výdaje na účtoch a v pokladni), at page 15;
–        Annex R2 – Table entitled “Credit Turnovers on Current Accounts in Banks in Thousands SKK” (in Slovak: Kreditné obraty na bežných účtoch v bankách v tis. Sk), at page 16;
–        Annex R2 – Letter from Tax Office Košice IV to the Tax Headquarters of the Slovak Republic dated 28 June 2004, at pages 17 to 19:
–        reference to tax arrears of the applicant as of 8 March 2004 in the first paragraph, page 17;
–        reference to the valuation price of the applicant’s real property in the second paragraph, page 17;
–        references to the valuation price of the applicant’s real property in the fourth paragraph, page 17;
–        reference to the total valuation price of the applicant’s real property according to the valuation reports submitted by the applicant from 30 March 2004 to 12 May 2004, page 17;
–        reference to the valuation price of the applicant’s real property registered on title certificate No. 11817, page 18;
–        reference to the purchase price of the applicant’s real property registered on title certificate No. 10118, page 18;
–        reference to the total valuation price of the applicant’s real property, page 18;
–        references to the valuation price of the applicant’s receivables, page 18;
–        references to the valuation price of the applicant’s machines, page 18;
–        references to the valuation price of the applicant’s electrical appliances, page 18;
–        references to the valuation price of the applicant’s motor vehicles, page 18;
–        reference to the total valuation price of the applicant’s assets, page 18;
–        references to the amounts of raw materials, semi-finished products and products of the applicant as of 30 April 2004, page 18;
–        references to the tax arrears of the applicant as of 8 March 2004, page 19;
–        Annex R2 – Letter of the Ministry of Finance of the Slovak Republic, No. MF/13485/2008-71, dated 30 March 2006, at page 20:
–        reference to the balance of the applicant’s bank accounts as of 17 June 2004;
–        reference to the balance of the applicant’s cash as of 17 June 2004;
–        reference to the balance of the applicant’s receivables as of 30 May 2004;
–        reference to the inventory of spirit and spirit products as of 30 April 2004;
–        reference to the total valuation price of the applicant’s real property, electrical appliances and machines.
19      Second, it requests that the following parts of Annexes 3.H, 3.I, 3.J, 3.L and 3.N to its reply to the measures of organisation of procedure receive confidential treatment (‘the parts of the annexes to the applicant’s reply’):
–        Annex 3.H – Request for reclassification of excise tax refund, No. 39/UF/2004, dated 20 April 2004; identification of excise tax payments made in February 2004, No. 38/UF/2004, dated 20 April 2004; identification of spirit excise tax payments, No. 37/UF/2004, dated 20 April 2004: all numerical references to the tax refund and tax debt of the applicant, at pages 22 to 27;
–        Annex 3.I – Notice of Tax Headquarters of the Slovak Republic, Košice Branch, regarding refusal to grant relief from penalty for unpaid excise tax for August, September and November 2000, No. VI/230/82/2463/2004, dated 10 May 2004: amount of penalty for failure to duly pay spirit excise tax, at pages 28 and 29;
–        Annex 3.J – Fax message for Tax Office Košice IV regarding list of electric appliances and machines not subject to pledge, dated 14 May 2004: appraised values (excluding and including VAT) of machines and electrical appliances, at pages 31 and 32 and 34 and 35;
–        Annex 3.L – Response of the applicant to Tax Office Košice IV on the applicant’s liabilities, No. 51/UF/2004, dated 21 May 2004: references to the amount of the applicant’s payables towards its creditors, at pages 38 and 39;
–        Annex 3.N – Minutes of site inspection prepared by Tax Office Košice IV, No. 698/340/59041/2004, dated 21 June 2004: first, the reference to the applicant’s payroll and social security expenses, at pages 44 and 48 and, second, the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49.
20      As regards the second ground, the applicant submits that the Commission’s reply contains a specific reference to the shareholder structure of the applicant. In the Slovak Republic, information on private shareholders is not generally available and disclosure of such information to the other parties to the proceedings could harm the interests of the applicant’s individual shareholders. Accordingly, the applicant requests that the following part of the Commission’s reply receive confidential treatment:
–        Annex R1- Note to the file, at page 6, fifth bullet point.
21      In its letter of 11 September 2009, the intervener observes, first of all, that the applicant’s applications for confidential treatment relate to matters concerning the financial state, operations, products and inventory of the applicant and that the disclosure of such matters to other parties would be damaging to the applicant’s legitimate commercial interests.
22      It goes on to state that its knowledge of the matters which are the subject of the application for confidential treatment is crucial for the preparation of the submissions that it wishes to make at the hearing and that if those matters were to receive confidential treatment it would be prevented from taking a view on the subject matter of the action. It submits that the matters which are the subject of the application for confidential treatment constitute economic indicators which were examined by the Commission in reaching the conclusion that the aid measure in question is incompatible with the EC Treaty.
Findings of the President
–        The applications for confidential treatment of the replies to the measures of organisation of procedure contested by the intervener
23      It should be recalled that, for the purpose of determining the conditions under which confidential treatment may be given to certain documents in the file, it is necessary to balance, in respect of each document or part of a document on the Court’s file for which confidential treatment is claimed, the applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate concern to have the necessary information for the purpose of being fully in a position to assert their rights and to state their case before the Community Court (order in Case T‑30/89 Hilti v Commission [1990] ECR II-163, published in extracts, paragraph 11; order of the President of the Second Chamber (Extended Composition) of 3 July 1998 in Case T‑143/96 Volkswagen and Volkswagen Sachsen v Commission, not reported in the ECR, paragraph 16, and order of the President of the Fifth Chamber in Case T‑271/03 Deutsche Telekom v Commission [2006] ECR II‑1747, paragraph 10).
24      It should also be observed that the intervener’s opposition to the confidentiality sought must relate to specific matters which have been obscured in the documents in the file and state the reasons for which confidentiality with regard to those matters should be refused. Accordingly, an application for confidential treatment must be upheld in so far as it concerns matters which have not been disputed by the intervener, or not disputed expressly and in detail (order in Deutsche Telekom v Commission, paragraphs 12, 14 and 15).
25      As regards the twenty­‑two parts of the Commission’s reply and the parts of Annexes 3.H, 3.I, 3.J and 3.N (regarding the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49) to the applicant’s reply, in respect of which the applicant is applying for confidential treatment on the ground of protection of its legitimate commercial interests (‘the first ground’), it is necessary, initially, to examine whether or not the matters concerned by those parts to which the application for confidential treatment relates are confidential.
26      First, it should be noted that, as is apparent from paragraphs 18 and 19 above and is not moreover disputed by the intervener, in support of the first ground the applicant has ensured that the various matters which, in its view, should be omitted from any communication to the intervener are identified in detail.
27      Second, it must be observed that, as is apparent from the case‑law cited in paragraph 23 above, the first ground, which is based on protection of legitimate commercial interests, undeniably constitutes a valid ground in support of an application for confidential treatment.
28      Lastly, third, it should be noted – and again the intervener has not contested this – that (i) the twenty‑two parts of the Commission’s reply and the parts of Annexes 3.H, 3.I, 3.J and 3.N (regarding the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49) to the applicant’s reply all fall within at least one of the first four categories of documents identified by the applicant, as referred to in paragraph 17 above, and (ii) those four categories of documents all relate to the protection of a party’s legitimate commercial interests.
29      It follows from the above findings that the twenty‑two parts of the Commission’s reply and the parts of Annexes 3.H, 3.I, 3.J and 3.N (regarding the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49) to the applicant’s reply, in respect of which the applicant is applying for confidential treatment are of a confidential nature.
30      It is therefore necessary, subsequently, in accordance with the case‑law recalled in paragraph 23 above, to determine and balance the respective interests of the applicant and the intervener.
31      In this respect, it is sufficient to note that, contrary to the requirements of precision characterising an intervener’s opposition to an application for confidentiality, as recalled in paragraph 24 above, in the present case, the intervener has not given specific reasons for its submission that the applicant’s applications for confidential treatment should be dismissed.
32      First of all, the intervener has merely reproduced the reasoning set out by the applicant in support of its application for confidential treatment of the twenty-two parts of the Commission’s reply. Next, it has also merely asserted, as is clear from paragraph 22 above, that, to the extent that the matters which are the subject of the application for confidential treatment constitute economic indicators which were examined by the Commission in adopting the contested decision, its knowledge of those matters is crucial for the preparation of the submissions which it wishes to make at the hearing and that confidential treatment of those matters would prevent it from taking a view on the subject-matter of the action.
33      Accordingly, it must be held that, contrary to the requirements recalled in paragraphs 23 and 24 above, first, the intervener’s opposition to the confidentiality sought does not relate to specific matters which have been obscured in the documents in the file. Its opposition is based solely on the assertion that the Commission used the matters in question in adopting the contested decision and that those matters are therefore crucial for the purpose of preparing the submissions which it intends to make at the hearing. Second, the Court considers that the intervener has failed to state reasons why confidentiality, with regard to the matters covered by each of the twenty‑two parts of the Commission’s reply and parts of Annexes 3.H, 3.I, 3.J and 3.N (regarding the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49) to the applicant’s reply should be refused.
34      It follows from the foregoing considerations that a balancing of the respective interests leads to the conclusion that the intervener has failed to establish how each of the twenty‑two parts of the Commission’s reply and each of the parts of Annexes 3.H, 3.I, 3.J and 3.N (regarding the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49) to the applicant’s reply, referred to in the applicant’s applications for confidential treatment in respect of the first ground, – parts which were found to be of a confidential nature at paragraph 29 above – is necessary for the exercise of its procedural rights.
35      Confidential treatment must therefore be granted to the twenty‑two parts of the Commission’s reply and the parts of Annexes 3.H, 3.I, 3.J and 3.N (regarding the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49) to the applicant’s reply, as referred to by the applicant under the ground based on protection of its legitimate commercial interests.
–        The applications for confidential treatment of the replies to the measures of organisation of procedure which the intervener has not contested
36      It is apparent from the case‑law referred to in paragraph 23 above that, provided that reasons have been stated for the applications for confidential treatment in question, they must be granted in so far as they have not been contested by the intervener.
37      In the present case, first of all, it is not contested that reasons have been stated for the applications for confidential treatment of the Commission’s and the applicant’s replies. Next, in its letter of 11 September 2009, the intervener confined itself to contesting the application for confidentiality only of the matters covered by the applicant’s first ground in support of its application for confidentiality, namely that the communication of the matters referred to in this respect would damage its legitimate commercial interests. Lastly, the Court observes that, as is apparent from the intervener’s arguments, as set out in paragraph 21 above, the intervener has not contested the application for confidential treatment of the applicant’s reply in so far as it contains (i) a balance of payables to the applicant’s creditors and (ii) payroll and social security expenses of the applicant.
38      Accordingly, first, it is appropriate at this stage to grant the applicant’s application regarding confidential treatment of the following part of the Commission’s reply, as referred to under the second ground based on protection of the interests of its individual shareholders:
–        Annex R1- Note to the file, at page 6, fifth bullet point.
39      Second, it is also appropriate at this stage to grant the applicant’s application regarding confidential treatment of its reply to the measures of organisation of procedure, in so far as it contains (i) a balance of payables to the applicant’s creditors and (ii) payroll and social security expenses of the applicant, that is to say:
–        Annex 3.L – Response of the applicant to Tax Office Košice IV on the applicant’s liabilities, No. 51/UF/2004, dated 21 May 2004: references to the amount of the applicant’s payables towards its creditors, at pages 38 and 39;
–        Annex 3.N – Minutes of site inspection prepared by Tax Office Košice IV, No. 698/340/59041/2004, dated 21 June 2004: the reference to the applicant’s payroll and social security expenses, at pages 44 and 48.
The Commission’s application for confidential treatment of the Report for the Hearing
Arguments of the parties
40      In its letter of 7 September 2009, in support of its application for confidential treatment of the Report for the Hearing, the Commission relies on a ground based on the protection of business confidential information. Its application relates to the following paragraphs of the Report for the Hearing:
–        Paragraphs 68, 119 and 128 of the Report for the Hearing indicate the amount of the supplier loan from Old Herold to the applicant. This amount was omitted from the non‑confidential version of the contested decision and may still constitute business confidential information. In line with the non-confidential version of the contested decision, the Commission therefore suggests replacing the exact amount stated in the paragraphs referred to above by a range ‘[SKK 70-130 million]’;
–        Paragraphs 56 and 70 of the Report for the Hearing indicate the revenue achieved from the sale of stock. This amount was omitted from the non-confidential version of the contested decision and may still constitute business confidential information. In line with the non‑confidential version of the contested decision, the Commission therefore suggests replacing the exact amount stated in the paragraphs referred to above by a range ‘[less than SKK 150 million]’.
41      In its letter of 2 October 2009, the intervener claims that, since the applicant has not requested that the information in the Report for the Hearing receive confidential treatment, it is not possible to understand how the Commission can submit such an application. For that reason, the intervener proposes that the application for confidential treatment of the Report for the Hearing should be dismissed.
Findings of the President
42      First, it should be noted that, as is apparent from paragraphs 40 and 41 above, and is not moreover disputed by the intervener, the Commission, in support of its application for confidential treatment of the Report for the Hearing, has ensured that the various matters which, in its view, should be excluded from any communication of that report to the intervener are identified in detail.
43      Second, it must be observed that it is also not disputed that the ground of justification for the application for confidential treatment of the Report for the Hearing, which is based on the protection of business confidential information, undeniably constitutes a valid ground in support of an application for confidential treatment.
44      Lastly, third, it should be noted – and again the intervener has not contested this – that the paragraphs referred to by the Commission in its application for confidential treatment of the Report for the Hearing do in fact mention, as it claims, either the exact amount of the supplier loan from Old Herold to the applicant, or the amount of revenue achieved from the sale of stock, data which form part of business confidential information.
45      It follows from the above findings that the paragraphs of the Report for the Hearing in respect of which the Commission is applying for confidential treatment are of a confidential nature.
46      As regards, subsequently, the determination and balancing of the respective interests of the applicant and the intervener, it is sufficient to note that, contrary to the requirements of precision characterising opposition to an application for confidential treatment, as recalled in paragraph 24 above, in the present case, the intervener has not given specific reasons for its submission that the Commission’s application for confidential treatment should be dismissed.
47      The intervener has claimed merely that, since the applicant has not requested that the information in the Report for the Hearing receive confidential treatment, it is not possible to understand why the Commission has submitted such an application. On the assumption that such reasoning can be accepted, although the exercise by one of the parties to the main proceedings of its right to apply for confidential treatment of a document in the file is not conditional on that right’s being exercised by the other party to the proceedings, it does not, on any view, fulfil the requirements as to the detailed nature of the opposition.
48      Accordingly, it must be held that, contrary to the requirements recalled in paragraph 24 above, the intervener’s opposition to the Commission’s application for confidential treatment of the Report for the Hearing does not relate to specific matters which have been obscured in the documents in the file.
49      It follows from the foregoing considerations that a balancing of the respective interests leads to the conclusion that the intervener has failed to establish, for each of the paragraphs of the Report for the Hearing referred to in the application for confidential treatment of the Report for the Hearing, why those paragraphs should not receive confidential treatment.
50      The Commission’s application for confidential treatment of the Report for the Hearing must therefore be granted in so far as:
–        At paragraphs 68, 119 and 128 of the Report for the Hearing, the exact amount of the supplier loan from Old Herold to the applicant must be replaced by ‘[SKK 70-130 million]’;
–        At paragraphs 56 and 70 of the Report for the Hearing, the amount of revenue achieved from the sale of stock must be replaced by ‘[less than SKK 150 million]’.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1.      The applications for confidential treatment relating to the following parts of the Commission’s reply to the measures of organisation of procedure are granted:
–        Annex R2 – Letter from the Tax Headquarters of the Slovak Republic to the Ministry of Finance of the Slovak Republic dated 27 March 2006, at page 11 – reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004 in the second paragraph;
–        Annex R2 – Table entitled “Income and Expenses on Bank Accounts and Cash Counter” (in Slovak: Príjmy a výdaje na účtoch a v pokladni), at page 15;
–        Annex R2 – Table entitled “Credit Turnovers on Current Accounts in Banks in Thousands SKK” (in Slovak: Kreditné obraty na bežných účtoch v bankách v tis. Sk), at page 16;
–        Annex R2 – Letter from Tax Office Košice IV to the Tax Headquarters of the Slovak Republic dated 28 June 2004, at pages 17 to 19:
–        reference to tax arrears of the applicant as of 8 March 2004 in the first paragraph, page 17;
–        reference to the valuation price of the applicant’s real property in the second paragraph, page 17;
–        references to the valuation price of the applicant’s real property in the fourth paragraph, page 17;
–        reference to the total valuation price of the applicant’s real property according to the valuation reports submitted by the applicant from 30 March 2004 to 12 May 2004, page 17;
–        reference to the valuation price of the applicant’s real property registered on title certificate No. 11817, page 18;
–        reference to the purchase price of the applicant’s real property registered on title certificate No. 10118, page 18;
–        reference to the total valuation price of the applicant’s real property, page 18;
–        references to the valuation price of the applicant’s receivables, page 18;
–        references to the valuation price of the applicant’s machines, page 18;
–        references to the valuation price of the applicant’s electrical appliances, page 18;
–        references to the valuation price of the applicant’s motor vehicles, page 18;
–        reference to the total valuation price of the applicant’s assets, page 18;
–        references to the amounts of raw materials, semi-finished products and products of the applicant as of 30 April 2004, page 18;
–        references to the tax arrears of the applicant as of 8 March 2004, page 19;
–        Annex R2 – Letter of the Ministry of Finance of the Slovak Republic, No. MF/13485/2008-71, dated 30 March 2006, at page 20:
–        reference to the balance of the applicant’s bank accounts as of 17 June 2004;
–        reference to the balance of the applicant’s cash as of 17 June 2004;
–        reference to the balance of the applicant’s receivables as of 30 May 2004;
–        reference to the inventory of spirit and spirit products as of 30 April 2004;
–        reference to the total valuation price of the applicant’s real property, electrical appliances and machines.
–        Annex R1- Note to the file, at page 6, fifth bullet point.
2.      The applications for confidential treatment relating to the following parts of the annexes to the applicant’s reply to the measures of organisation of procedure are granted:
–        Annex 3.H – Request for reclassification of excise tax refund, No. 39/UF/2004, dated 20 April 2004; identification of excise tax payments made in February 2004, No. 38/UF/2004, dated 20 April 2004; identification of spirit excise tax payments, No. 37/UF/2004, dated 20 April 2004: all numerical references to the tax refund and tax debt of the applicant, at pages 22 to 27;
–        Annex 3.I – Notice of Tax Headquarters of the Slovak Republic, Košice Branch, regarding refusal to grant relief from penalty for unpaid excise tax for August, September and November 2000, No. VI/230/82/2463/2004, dated 10 May 2004: amount of penalty for failure to duly pay spirit excise tax, at pages 28 and 29;
–        Annex 3.J – Fax message for Tax Office Košice IV regarding list of electric appliances and machines not subject to pledge, dated 14 May 2004: appraised values (excluding and including VAT) of machines and electrical appliances, at pages 31 and 32, and 34 and 35;
–        Annex 3.L – Response of the applicant to Tax Office Košice IV on the applicant’s liabilities, No. 51/UF/2004, dated 21 May 2004: references to the amount of the applicant’s payables towards its creditors, at pages 38 and 39;
–        Annex 3.N – Minutes of site inspection prepared by Tax Office Košice IV, No. 698/340/59041/2004, dated 21 June 2004: first, the reference to the applicant’s payroll and social security expenses, at pages 44 and 48 and, second, the reference to the balance of the applicant’s bank accounts and cash as of 17 June 2004, at pages 45 and 49.
3.      The Commission’s applications for confidential treatment as regards the following paragraphs of the Report for the Hearing are granted:
–        At paragraphs 68, 119 and 128 of the Report for the Hearing, the exact amount of the supplier loan from Old Herold to the applicant must be replaced by ‘[SKK 70-130 million]’;
–        At paragraphs 56 and 70 of the Report for the Hearing, the amount of revenue achieved from the sale of stock must be replaced by ‘[less than SKK 150 million]’.
4.      The costs are reserved.
Luxembourg, 13 October 2009.
E. Coulon
I. Pelikánová
Registrar
President
* Language of the case: English.