ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
27 November 2023 (*)
(Confidentiality – Challenge by an intervener)
In Case T‑167/23,
LAT Nitrogen Piesteritz GmbH, formerly Borealis Agrolinz Melamine Deutschland GmbH,
established in Lutherstadt Wittenberg (Germany),
Cornerstone Chemical Co., established in Metairie, Louisiana (United States),
represented by R. Cana, E. Mullier and Z. Romata, lawyers,
applicants,
supported by
Grupa Azoty Zakłady Azotowe Puławy S.A., established in Puławy (Poland),
OCI Nitrogen BV, established in Sittard-Geleen (Netherlands),
Methanol Holdings (Trinidad) Ltd, established in Couva (Trinidad and Tobago),
represented by R. Cana, E. Mullier and Z. Romata, lawyers,
and by
Fritz Egger GmbH & Co. OG, established in St. Johann in Tirol (Austria), and the other interveners whose names are listed in the annex, (1) represented by D. Strobl and M. Ahlhaus, lawyers,
interveners,
v
European Chemicals Agency (ECHA),
represented by M. Heikkilä, N. Herbatschek and A. Hautamäki, acting as Agents,
defendant,
supported by
Federal Republic of Germany, represented by J. Möller and N. Scheffel, acting as Agents,
and by
European Commission,
represented by D. Milanowska and K. Mifsud-Bonnici, acting as Agents,
interveners,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1        By their action under Article 263 TFEU, the applicants, LAT Nitrogen Piesteritz GmbH, formerly Borealis Agrolinz Melamine Deutschland GmbH and Cornerstone Chemical Co., seek the partial annulment of Decision D (2022)9120-DC of the European Chemicals Agency (ECHA) of 16 December 2022, in so far as that decision identifies melamine as a substance of very high concern for the purposes of Article 57 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1).
Procedure
2        By application lodged at the Registry of the General Court on 24 March 2023, the applicants brought the present action.
3        By documents lodged on 11 and 12 July 2023 respectively, Grupa Azoty Zakłady Azotowe Puławy S.A., OCI Nitrogen BV and Methanol Holdings (Trinidad) Ltd (‘the first group of interveners’), and also Fritz Egger GmbH & Co. OG and the other interveners whose names are listed in the annex (‘the second group of interveners’), applied for leave to intervene in support of the form of order sought by the applicants.
4        By documents lodged on 12 and 13 July 2023 respectively, the Federal Republic of Germany and the European Commission applied for leave to intervene in support of the form of order sought by ECHA.
5        By documents lodged on 21 August 2023, the applicants requested that Annexes A.12, A.16 and A.17 to the application be treated as confidential in their entirety vis-à-vis all the interveners. They attached a non-confidential version of those documents to the requests.
6        By orders of the President of the Fifth Chamber of the General Court of 1 September 2023, the first and second groups of interveners were granted leave to intervene in support of the form of order sought by the applicants, while the Federal Republic of Germany and the Commission were granted leave to intervene in support of the form of order sought by ECHA.
7        Pursuant to those orders, in accordance with Article 144(5) and (7) of the Rules of Procedure of the General Court, the decision as to the merits of the requests for confidential treatment was reserved and a non-confidential version of the procedural documents was sent to the interveners pending the submission of any observations on their part on the requests for confidential treatment.
8        By document lodged on 19 September 2023, the Federal Republic of Germany disputed the confidentiality of Annexes A.12, A.16 and A.17.
9        The Commission has not raised any objections to the request for confidential treatment of Annexes A.12, A.16 and A.17, as is clear from the document lodged on 18 September 2023.
10      The first and second groups of interveners did not lodge observations within the prescribed period.
The requests for confidential treatment
The request for confidentiality contested by the Federal Republic of Germany
11      Article 144(7) of the Rules of Procedure 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 [of that article].’
12      That provision lays down the principle that interveners are to receive a copy of every document served on the main parties, and it is only by way of derogation from that principle that certain secret or confidential documents or information may be excluded from that communication (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 14 and the case-law cited).
13      In that regard, in the first place, it is clear from settled case-law, the substance of which is reproduced in paragraph 182 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court, that the party submitting a request for confidential treatment must accurately identify the particulars or passages to be excluded, that that request must state the reasons for which each of those particulars or passages is regarded as confidential and that failure to provide such information may result in the request being refused by the Court (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 12 and the case-law cited).
14      The degree of reasoning required may vary depending on the actual nature of each document and item of information concerned, with some being inherently confidential, whereas for others specific reasons must be provided for their confidential nature (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 13 and the case-law cited).
15      In the second place, in so far as a request for confidential treatment submitted under Article 144(2) of the Rules of Procedure is disputed, the President of the Chamber before which the case is pending 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 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 17 and the case-law cited).
16      The requirement for the applicant to state reasons for the request for confidentiality is to be assessed in the light of the secret or confidential nature of each document and item of information concerned. 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 it is for the applicant to provide (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 18 and the case-law cited).
17      Thus, 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 inherently secret or confidential (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 19 and the case-law cited).
18      The applicants request confidential treatment of the following annexes to the application:
–        Annex A.12, namely the article by Pote, D.H., Daniel, T.C., Edwards, D.R., Mattice, J.D., and Wickliff, D.B., ‘Effect of Drying and Rainfall Intensity on Cyromazine Loss from Surface-Applied Caged-Layer Manure’, Journal of Environmental Quality, Volume 23, 1994, pages 101 to 104;
–        Annex A.16, namely the article by Wegmann, F., Cavin, L., MacLeod, M., Scheringer, M., and Hungerbühler, K., ‘The OECD software tool for screening chemicals for persistence and long-range transport potential’, Environmental Modelling & Software, Volume 24, 2009, pages 228 to 237;
–        Annex A.17, namely the report of 2 February 2022, ‘Melamine in the Environment’, prepared by Ramboll Deutschland GmbH for the European Melamine Producers Association (‘EMPA’).
19      The applicants argue that these annexes are unpublished reports which are proprietary information subject to copyright. In that respect, the applicants claim that they have no right to grant reproduction or distribution rights.
20      The Federal Republic of Germany disputes the request for confidential treatment of Annexes A.12, A.16 and A.17. In that regard, first, it contends that the request is not sufficiently substantiated. The applicants did not differentiate between the annexes or between parts of those annexes in order to justify their request for confidential treatment. Second, the articles submitted as Annexes A.12 and A.16 are published in specialist journals and are therefore not, by definition, confidential. As regards the report submitted as Annex A.17, the main parts are reflected in a study published and accessible free of charge on the internet. Third, the Federal Republic of Germany disputes that the applicants may rely on copyright protection in order to refuse disclosure of those three annexes.
21      In the first place, as regards the articles submitted as Annexes A.12 and A.16, it must be stated, as the Federal Republic of Germany has done, that those articles are accessible on the internet, because they can be purchased and downloaded in their entirety. It has already been held that confidential treatment of information which is already public or to which the general public or certain specialist circles have access cannot be justified (see, to that effect, order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 20).
22      The argument, relied on by the applicants in this regard, that the articles submitted as Annexes A.12 and A.16 are protected by copyright under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) cannot succeed.
23      First, the applicants explain that they have no right to grant reproduction or distribution rights for Annexes A.12 and A.16. By their argument, the applicants thus submit, in essence, that they may not exercise the exclusive rights owned by the holders of copyright in those annexes. Consequently, the applicants have not demonstrated on what grounds they are entitled to rely, before the Court, on the rights of the holders of copyright in Annexes A.12 and A.16.
24      Second, the transmission of articles protected by copyright as evidence in judicial proceedings cannot be equated to a public communication of those works (see, to that effect, judgment of 28 October 2020, BY (Photographic evidence), C‑637/19, EU:C:2020:863, paragraphs 33 and 34).
25      In that respect, the fact that interveners may be provided with documents protected by copyright in proceedings before the Court is not relevant.
26      The communication of documents protected by copyright to interveners is governed by the procedure set out in Article 144 of the Rules of Procedure and follows specific rules. In that regard, according to the rules governing the treatment of cases before the Court, parties are entitled to protection against the misuse of pleadings and therefore the parties to a case, whether the main parties or interveners, have the right to use the pleadings submitted by other parties to which they have been granted access solely for the purpose of defending their own legal position in the context of that case (see, to that effect, order of 15 October 2009, Hangzhou Duralamp Electronics v Council, T‑459/07, EU:T:2009:403, paragraph 13 and the case-law cited).
27      Consequently, without prejudice for the Court to omit, upon reasoned application or of its own motion, certain information from the documents relating to the case to which the public has access, pursuant to Article 66a of the Rules of Procedure, the copyright owned by third parties in respect of documents submitted by a main party to the proceedings before the Court does not, in principle, justify the confidentiality of such documents vis-à-vis interveners and a failure to communicate such documents to those interveners.
28      In the second place, as regards the report submitted as Annex A.17, the applicants argue, first, that this is subject to copyright. That argument must, however, be disregarded from the outset for the reasons set out in paragraphs 22 to 27 above.
29      Second, it should be noted that the applicants take the view that the report constitutes a valuable commercial asset for EMPA, of which LAT Nitrogen Piesteritz is a member. However, they provide no further explanations in that regard.
30      In accordance with the case-law referred to in paragraph 17 above, 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 regarded as being inherently secret or confidential.
31      In that respect, it follows from the case file that the report was commissioned by EMPA for the purpose of examining the prevalence of melamine and related substances in the environment, including drinking water sources, and focuses on data available from Germany and the Netherlands. In those circumstances, it does not appear that that report, which seeks to draw conclusions from the information available in Germany and in the Netherlands, contains business secrets relating to EMPA or to the applicants, or, more generally, information which may be regarded as being inherently secret or confidential.
32      It was therefore for the applicants to provide grounds designed to establish the secret or confidential nature of Annex A.17, something which they have failed to do. Accordingly, it must be held that the applicants have failed to give sufficient reasons for their request for confidential treatment so far as concerns Annex A.17.
33      It follows from all of the foregoing that the request for confidential treatment of Annexes A.12, A.16 and A.17 must be refused.
Disclosure to the interveners of Annexes A.12, A.16 and A.17
34      In the present dispute, the applicants did not request specific confidential treatment with regard to a particular intervener, but rather made identical requests with regard to all the interveners. Furthermore, following the present order no request for confidentiality is to be refused after weighing up the interests of the applicants with the particular interests of the Federal Republic of Germany, and no other specific ground justifies a distinction being drawn between the interveners in gaining access to the case file. On the contrary, it must be noted that it follows from the present order that Annexes A.12 and A.16 are not confidential items. As regards Annex A.17, the applicants have not put forward sufficient reasoning making it possible to understand how Annex A.17 was secret or confidential.
35      In the circumstances of the case, Annexes A.12, A.16 and A.17 must therefore be disclosed to all the interveners.
36      By contrast, since the Federal Republic of Germany has been the only intervener to find it necessary to have Annexes A.12, A.16 and A.17 available to it in order to substantiate its statement in intervention, it is justified to grant to the Federal Republic of Germany alone an additional time limit to supplement its statement in intervention.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The requests for confidential treatment made by LAT Nitrogen Piesteritz GmbH and Cornerstone Chemical Co. are refused.
2.      A non-confidential version of Annexes A.12, A.16 and A.17 shall be served by the Registrar on the interveners.
3.      The Registrar shall set a time limit for the Federal Republic of Germany to submit any observations supplementing its statement in intervention.
4.      The costs are reserved.
Luxembourg, 27 November 2023.
V. Di Bucci
J. Svenningsen
Registrar
President
*      Language of the case: English.
1      The list of the other interveners is annexed only to the version sent to the parties.