ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT
10 March 2023 (*)
(Appeal – Intervention – Confidentiality – Information treated as confidential at first instance)
In Case C‑457/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 July 2021,
European Commission, represented by P.-J. Loewenthal and F. Tomat, acting as Agents,
appellant,
the other parties to the proceedings being:
Grand Duchy of Luxembourg, represented initially by A. Germeaux and T. Uri, acting as Agents, and by J. Bracker, A. Steichen and D. Waelbroeck, avocats, and subsequently by A. Germeaux and T. Schell, acting as Agents, and by J. Bracker, A. Steichen and D. Waelbroeck, avocats,
Amazon.com Inc., established in Seattle, Washington (United States),
Amazon EU Sàrl, established in Luxembourg (Luxembourg),
represented by D. Paemen, M. Petite and A. Tombiński, avocats,
applicants at first instance,
Ireland,
intervener at first instance,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT,
having regard to the proposal of N. Wahl, Judge-Rapporteur,
after hearing the Advocate General, J. Kokott,
makes the following
Order
1        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 12 May 2021, Luxembourg and Amazon v Commission (T‑816/17 and T‑318/18, EU:T:2021:252), by which the General Court annulled Commission Decision (EU) 2018/859 of 4 October 2017 on State aid SA.38944 (2014/C) (ex 2014/NN) implemented by Luxembourg to Amazon (OJ 2018 L 153, p. 1).
2        By order of the President of the Court of 15 October 2021, Commission v Amazon.com and Others (C‑457/21 P, not published, EU:C:2021:900), it was decided that the information redacted from the non-confidential version of the appeal and Annexes 1 and 5 thereto, lodged at the Court Registry on 6 August 2021 by Amazon.com Inc. and Amazon EU Sàrl (together, ‘Amazon’), in agreement with the Grand Duchy of Luxembourg, would be treated as confidential vis-à-vis Ireland, the intervener at first instance, and that that non-confidential version alone would be served, by the Registrar, on Ireland.
3        By order of the President of the Court of 17 November 2021, Commission v Amazon.com and Others (C‑457/21 P, not published, EU:C:2021:1054), it was decided that the information redacted from the non-confidential version of the response and Annex B.1 thereto, lodged at the Court Registry on 7 October 2021 by Amazon, would be treated as confidential vis-à-vis Ireland and that that non-confidential version alone would be served, by the Registrar, on that Member State.
4        By order of the President of the Court of 10 May 2022, Commission v Amazon.com and Others (C‑457/21 P, not published, EU:C:2022:392), it was decided that the information redacted from the non-confidential version of the Commission’s reply and Annexes C.1 and C.3 thereto, lodged at the Court Registry on 6 April 2022 by Amazon, in agreement with the Grand Duchy of Luxembourg, would be treated as confidential vis-à-vis Ireland and that that non-confidential version alone would be served, by the Registrar, on Ireland.
5        By order of the President of the Court of 14 July 2022, Commission v Amazon.com and Others (C‑457/21 P, not published, EU:C:2022:599), it was decided that the information redacted from the non-confidential versions of the rejoinders lodged at the Court Registry on 23 May 2022 by Amazon and by the Grand Duchy of Luxembourg would be treated as confidential vis-à-vis Ireland and that those non-confidential versions alone would be served, by the Registrar, on Ireland.
6        By a measure of organisation of procedure of 2 February 2023, adopted pursuant to Article 61(1) of its Rules of Procedure, the Court requested the parties to specify the consequences which in their view attach to the judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission (C‑885/19 P and C‑898/19 P, EU:C:2022:859), for the present case.
7        The parties lodged their respective replies at the Court Registry on 22 February 2023.
8        By document lodged at the Court Registry on 28 February 2023, Amazon requested that the Court treat as confidential vis-à-vis Ireland certain information in Annexes E.1 to E.4 and E.7 to the reply to the Court’s question lodged by the Commission.
9        By document lodged at the Court Registry on the same day, the Grand Duchy of Luxembourg stated that it had coordinated with Amazon regarding that request for confidential treatment and thus followed Amazon in submitting its own request relating to the same subject matter.
10      At the same time as those requests for confidential treatment were made, Amazon and the Grand Duchy of Luxembourg sent a non-confidential version of the Commission’s reply and the annexes relating thereto to the Court Registry.
11      By document lodged at the Court Registry on 3 March 2023, the Commission stated that it had no objections to those requests for confidential treatment.
12      It should be borne in mind, in that regard, that Article 171(1) of the Rules of Procedure of the Court of Justice provides that the appeal is to be served on the other parties to the relevant case before the General Court. Moreover, in accordance with Article 172 of those rules, any party to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response within two months after service of the appeal on that party. It follows from those provisions that the appeal and the other procedural documents lodged before the Court of Justice are also to be served, in principle, on the parties given leave to intervene at first instance.
13      However, where a party is requesting, vis-à-vis a party that intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential vis-à-vis that same party in the proceedings at first instance, that same confidential treatment must, in principle, be maintained for the purposes of the proceedings before the Court of Justice (order of the President of the Court of 14 December 2020, Commission v Ireland and Others, C‑465/20 P, not published, EU:C:2020:1027, paragraph 12 and the case-law cited).
14      In the present case, it should be noted that the passages in Annexes E.1, E.3, E.4 and E.7 to the Commission’s reply to the question put by the Court and referred to in paragraph 6 of the present order correspond to passages which have already been treated as confidential by the General Court vis-à-vis Ireland.
15      As regards Annex E.2, the requests for confidential treatment relate only to the names and signatures of officials of the Luxembourg tax administration, which the General Court did not mention in the judgment of 12 May 2021, Luxembourg and Amazon v Commission (T‑816/17 and T‑318/18, EU:T:2021:252), using the latter designation ‘Luxembourg tax administration’ or ‘Luxembourg tax authorities’, both of which are impersonal.
16      Accordingly, the requests made on 28 February 2023 by Amazon and by the Grand Duchy of Luxembourg that the Court should treat as confidential vis-à-vis Ireland the information redacted from the non-confidential version of Annexes E.1 to E.4 and E.7 to the reply to the Court’s question lodged on 22 February 2023 by the Commission must be granted.
17      In those circumstances, only the non-confidential version of that reply is to be served, by the Registrar, on Ireland.
On those grounds, the President of the Second Chamber of the Court hereby orders:
1.      The information redacted from the non-confidential version of the reply to the question put by the Court lodged at the Court Registry on 22 February 2023 by the European Commission, which was sent to the Court Registry on 28 February 2023, on the one hand, by Amazon.com Inc. and Amazon EU Sàrl and, on the other hand, by the Grand Duchy of Luxembourg, shall be treated as confidential vis-à-vis Ireland. That non-confidential version alone shall be served, by the Registrar, on Ireland.
2.      The costs are reserved.
Luxembourg, 10 March 2023.
A. Calot Escobar
A. Prechal
Registrar
President of the Chamber
*      Languages of the case: English and French.