ORDER OF THE PRESIDENT
OF THE EIGHTH CHAMBER OF THE GENERAL COURT
25 November 2019 (*)
(Confidentiality — Objection by an intervener — Action for damages — Non-contractual liability)
In Case T‑636/18,
Tokai erftcarbon GmbH, established in Grevenbroich (Germany), represented initially by K. Van Maldegem, M. Grunchard, R. Crespi and S. Saez Moreno, and subsequently by K. Van Maldegem, M. Grunchard and S. Saez Moreno, lawyers,
applicant,
v
European Commission, represented by M. Wilderspin, R. Lindenthal and K. Talabér-Ritz, acting as Agents,
defendant,
supported by
Kingdom of Spain, represented by L. Aguilera Ruiz, acting as Agent,
and by
European Chemicals Agency (ECHA), represented by M. Heikkilä and W. Broere, acting as Agents,
interveners,
ACTION seeking compensation for the damage allegedly suffered by the applicant following the adoption of Commission Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5), in so far as Regulation No 944/2013 classified ‘pitch, coal tar, high-temp.’ as ‘Aquatic Acute 1 (H400)’ and ‘Aquatic Chronic 1 (H410)’,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Facts and proceedings
1        By document lodged at the Registry of the General Court on 23 October 2018, the applicant, Tokai erftcarbon GmbH, brought an action under Article 268 TFEU seeking compensation for the damage which that company claims to have suffered as a result of the adoption of Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5), in so far as Regulation No 944/2013 classified ‘pitch, coal tar, high-temp’ as ‘Aquatic Acute 1 (H400)’ and ‘Aquatic Chronic 1 (H410)’.
2        By documents lodged at the Court Registry on 11 February 2019 and 7 March 2019, respectively, the Kingdom of Spain and the European Chemicals Agency (ECHA) applied for leave to intervene in support of the form of order sought by the European Commission.
3        By separate documents, lodged at the Court Registry on 13 March, 29 May and 18 June 2019, the applicant requested, under Article 144(2) of the Rules of Procedure of the General Court, confidential treatment of certain information contained in the annexes to the application and in the annexes to the reply, with regard to the Kingdom of Spain and the ECHA. For the purposes of the communication provided for in Article 144(7) of the Rules of Procedure, it provided a non-confidential version of those documents.
4        The information in respect of which the applicant filed its requests for confidential treatment is as follows:
–        the invoices for the supply of goods and services to the applicant by third parties, reproduced in Annex A.4 to the application (pages 16 to 36 of the annexes to the application);
–        annexes C.2 and C.3 to the reply, in which invoices for the supply of goods and services to the applicant by third parties are reproduced (pages 15 to 50 and 52 to 54 of the annexes to the reply).
5        By two orders of the President of the Fifth Chamber of the General Court of 20 June 2019, the Kingdom of Spain and the ECHA were granted leave to intervene in the present case in support of the form of order sought by the Commission. In view of the aforementioned requests for confidential treatment, those orders limited the communication of procedural documents to the interveners to the non-confidential versions of those documents, pending any observations by the interveners regarding those requests.
6        By document lodged at the Court Registry on 8 July 2019, the Kingdom of Spain objected to the requests for confidential treatment. By document lodged at the Court Registry on 9 July 2019, the ECHA confirmed that it had no objections regarding the requests for confidential treatment.
7        On 6 September 2019, the Kingdom of Spain and the ECHA lodged their statements in intervention.
8        As the composition of the Chambers of the General Court had been altered, the case was assigned to a new Judge-Rapporteur sitting in the Eighth Chamber.
Law
9        Under Article 144(5) and (7) of the Rules of Procedure, if an application for leave to intervene is granted, the intervener is to receive a copy of every procedural document served on the main parties save, where applicable, for confidential information excluded from such communication by order of the President, at the request of one of the main parties.
10      Those provisions lay down the principle that interveners are to receive a copy of every document served on the parties and it is only by way of derogation from that principle that certain confidential documents or information may be withheld from disclosure (see order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 6 and the case-law cited).
11      In that regard, it should be noted, first, that the party who submits a request for confidential treatment is required to specify the documents or information covered and to duly state the reasons why they are claimed to be confidential. The Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2018 L 294, p. 23) restate those requirements in paragraph 182 thereof, according to which, inter alia, ‘an application for confidential treatment must accurately identify the particulars or passages to be excluded and state the reasons for which each of those particulars or passages is regarded as confidential’ (see, to that effect, order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 7 and the case-law cited).
12      Second, in so far as a request for confidential treatment submitted under Article 144(5) of the Rules of Procedure is contested, it is necessary to examine whether each of the documents and pieces of information the confidentiality of which is disputed and in respect of which a request for confidential treatment has been submitted is confidential (see order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 8 and the case-law cited).
13      Regarding the confidential nature of the documents and information referred to by the party who has submitted the request for confidentiality, a distinction may be drawn between, first, information which is by nature secret, such as business secrets of a commercial, competition-related, financial or accounting nature, or confidential, such as purely internal information, and, second, other documents or information which may be secret or confidential for a reason that is for the applicant to furnish. Therefore, the secret or confidential nature of the documents or information, for which no reasoning is given other than a description of their content, will be accepted only in so far as that information can be considered secret or confidential by its very nature (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraphs 16 and 17 and the case-law cited).
14      Furthermore, regarding objections to confidentiality by interveners, those objections must relate to precise items of the procedural documents which have been obscured and indicate the reasons why confidentiality with regard to those items should be refused. Therefore, a request for confidential treatment must be upheld in so far as it concerns items which have not been disputed, expressly and precisely, by an intervener (see, to that effect, order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 14 and the case-law cited).
15      Third, where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are confidential, the President is required to go on to assess and weigh up the competing interests for each document and piece of information (see order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 10 and the case-law cited).
16      In that regard, it should be borne in mind that, where confidential treatment is requested in the interests of a person not party to the dispute or in the interests of the applicant, this assessment leads the President to weigh in the balance, for each document or piece of information, that party’s legitimate concern to prevent substantial damage to its interests and the equally legitimate concern of the interveners that they should have the information necessary so as to be fully in a position to assert their rights and to set out their arguments before the Court (see order of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 64 and the case-law cited).
17      It is in the light of those principles that it is necessary to examine the requests for confidential treatment filed in the present case. Having regard to the fact that the Kingdom of Spain is the only intervener to have raised objections to those requests and that the ECHA has confirmed that it has no objections to those requests, it is appropriate, first, to hold that the ECHA has waived its right to challenge the confidential treatment requested by the applicant and, second, to examine whether those requests are well founded solely with regard to the Kingdom of Spain (see, to that effect, order of 30 January 2017, Syngenta Crop Protection and Others
v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 12 and the case-law cited).
18      In the present case, it should be noted that, in support of its requests for the information referred to in paragraphs 3 and 4 above to be excluded from the communication to the Kingdom of Spain, the applicant relies on the commercially sensitive nature of that information.
19      It should also be pointed out that the information referred to by the applicant directly concerns the amount which that party is requesting from the Commission in order to obtain compensation for the damage claimed by it in the context of the present action. That information constitutes evidence to which the applicant refers in order to establish the extent of the damage which it claims to have suffered as a result of the classification, pursuant to Regulation No 944/2013, of ‘pitch, coal tar, high-temp.’ as ‘Aquatic Acute 1 (H400)’ and ‘Aquatic Chronic 1 (H410)’. In that connection, the applicant lists goods and services which it claims it has had to obtain from third parties as a result of that classification.
20      In those circumstances, even assuming that the information referred to in paragraphs 3 and 4 above is to be regarded as secret or confidential by its very nature, the applicant’s interest in that information remaining confidential may not prevail over the Kingdom of Spain’s interest in having that information so as to be fully in a position to assert its rights and to set out its arguments before the Court.
21      Indeed, the present action is an action against the Commission for non-contractual liability. According to Article 340 TFEU, three things must be established in order for the non-contractual liability of the Commission to be triggered: first, there must be a sufficiently serious breach of a rule of law intended to confer rights on individuals; second, there must be real and certain damage; and, third, there must be a causal link between that breach and that damage (judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 42).
22      In the present dispute, the question whether and, if so, to what extent, the Commission is to be ordered by the Court to pay the amount sought by the applicant is thus dependent on, in particular, establishing real and certain damage caused by the classification of ‘pitch, coal tar, high-temp.’ as ‘Aquatic Acute 1 (H400)’ and ‘Aquatic Chronic 1 (H410)’.
23      However, without being aware of the evidence relied on by the applicant in order to determine the damage for which it seeks compensation, the Kingdom of Spain would not be in a position to express its views effectively in that regard.
24      Furthermore, as is emphasised by the Kingdom of Spain, it cannot, as a Member State, be regarded as one of the applicant’s competitors. Therefore, the information concerned, even assuming that it is to be regarded as secret or confidential by its very nature, cannot be used for commercial purposes which are potentially harmful to the applicant. In any event, it should be borne in mind that, under the rules which govern procedure in cases before the General Court, parties are entitled to protection against the misuse of pleadings and other procedural documents. Therefore, it is for the parties to a dispute to use the procedural documents of other parties which are communicated to them solely for the purpose of exercising their respective procedural rights (see, to that effect, orders of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 11 and the case-law cited, and of 28 April 1999, Van Parys and Others v Commission, T‑11/99 R, EU:T:1999:86, paragraphs 21 and 22, and judgment of 17 June 1998, Svenska Journalistförbundet v Council, T‑174/95, EU:T:1998:127, paragraphs 135 and 137).
25      Lastly, it should be noted that the disclosure to the Kingdom of Spain of the information concerned by the contested requests for confidential treatment does not prevent the General Court from omitting, under Article 66 of its Rules of Procedure, following a reasoned application by a party or of its own motion, certain information from the documents relating to the case to which the public has access if there are legitimate reasons for keeping that information confidential.
26      In the light of the foregoing considerations, the requests for confidential treatment must be rejected with regard to the Kingdom of Spain.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The requests for confidential treatment are rejected with regard to the Kingdom of Spain.
2.      The Registrar shall notify the confidential versions of the procedural documents to the Kingdom of Spain and shall fix a time limit for the submission by the latter of any observations supplementing its statement in intervention lodged at the Registry of the General Court on 6 September 2019.
3.      The costs are reserved.
Luxembourg, 25 November 2019.
E. Coulon
J. Svenningsen
Registrar
President
*      Language of the case: English.