ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
13 December 2023 (*)
(Confidentiality – Challenge by an intervener)
In Case T‑102/23,
SBK Art OOO, established in Moscow (Russia), represented by G. Lansky and P. Goeth, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz, acting as Agent, and by B. Maingain, lawyer,
defendant,
supported by
Republic of Croatia, represented by G. Vidović Mesarek, acting as Agent,
by
Kingdom of the Netherlands, represented by M.K. Bulterman, A. Hanje and C.S. Schillemans, acting as Agents,
and by
European Commission, represented by M. Carpus Carcea, C. Georgieva and L. Puccio, acting as Agents,
interveners,
makes the following
Order
1        By its action based on Article 263 TFEU, the applicant, SBK Art OOO, seeks the annulment (i) of Council Decision (CFSP) 2022/2477 of 16 December 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 322I, p. 466), and of Council Implementing Regulation (EU) 2022/2476 of 16 December 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 322I, p. 318) and (ii) of Council Decision (CFSP) 2023/572 of 13 March 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2003 L 75I, p. 134), and of Council Implementing Regulation (EU) 2023/571 of 13 March 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 75I, p. 1), in so far as those acts concern the applicant.
Procedure
2        The applicant lodged its application at the Registry of the General Court on 26 February 2023.
3        By document lodged at the Court Registry on 6 June 2023, the Republic of Croatia applied for leave to intervene in these proceedings in support of the form of order sought by the Council of the European Union.
4        By document lodged at the Court Registry on 21 July 2023, the applicant submitted an application for confidential treatment vis-à-vis the Republic of Croatia with respect to certain items of information in the application, the reply and several of their annexes.
5        On 21 August 2023, the applicant provided a non-confidential version of those documents covering the information to which the application for confidential treatment refers.
6        By order of 8 September 2023, the President of the First Chamber of the General Court granted leave to intervene to the Republic of Croatia.
7        In accordance with Article 144(5) and (7) of the Rules of Procedure of the General Court, that order provisionally restricted the communication of documents to the non-confidential versions produced by the applicant, pending the possible submission of observations by the Republic of Croatia on the application for confidential treatment.
8        By document lodged at the Registry of the General Court on 28 September 2023, the Republic of Croatia contested the application for confidential treatment in its entirety.
The application for confidential treatment
Principles
9        Article 144(7) of the Rules of Procedure states that ‘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’.
10      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 December 2022, Mostovdrev v Council, T‑259/22, not published, EU:T:2022:869, paragraph 8 and the case-law cited).
11      Article 144(2) of the Rules of Procedure in fact permits the main parties to apply for certain confidential information in the file in the case not to be communicated to an intervener. In such a case, Article 144(5) of those rules provides that the President is to decide as soon as possible, by order, on the communication to the intervener of information which it is claimed is confidential.
12      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 (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 15 and the case-law cited).
13      In the second place, the President of the Chamber before which the case is pending must make a ruling only on the confidentiality of the documents or items of information in respect of which that application is disputed (order of 21 December 2022, Mostovdrev v Council, T‑259/22, not published, EU:T:2022:869, paragraph 9 and the case-law cited).
14      In that context, the challenge to confidentiality brought by the interveners must relate to precise items of the procedural documents which have been redacted and indicate the reasons for which confidentiality with regard to those items should be refused. Consequently, a request for confidential treatment must be upheld in so far as it concerns items which have not been disputed, expressly and precisely, by the intervener (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 17 and the case-law cited).
15      In the third place, in so far as an application 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 (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 18 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 (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 19 and the case-law cited).
17      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 inherently secret or confidential (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 20 and the case-law cited).
18      The concept of business secrets covers, inter alia, information of a commercial, competition-related, financial or accounting nature which is not normally available to those not directly connected with the undertaking and which cannot, due to its age, be regarded as historic (order of 23 July 2021, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2021:506, paragraph 18 and the case-law cited).
19      Furthermore, several factors may lead to the conclusion that an application for confidential treatment of part of the file is unfounded. Consequently, when the same information is reproduced a number of times in the pleadings and a party neglects to request that each of the passages in which it appears be treated confidentially, so that that information will in any event be disclosed to the interveners, the request concerning it can only be refused, given that it is pointless (order of 5 March 2021, JCDecaux Street Furniture Belgium v Commission, T‑642/19, not published, EU:T:2021:135, paragraph 22 and the case-law cited).
20      In the fourth place, where his or her examination leads him or her to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President of the Chamber before which the case is pending is then to assess and weigh up the competing interests, for each document and piece of information (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 22 and the case-law cited).
21      Accordingly, where confidential treatment is requested in the interests of the applicant, the President of the Chamber before which the case is pending 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 (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 23 and the case-law cited).
22      In any event, the applicant 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 (order of 14 July 2020, Silgan Closures and Silgan Holdings v Commission, T‑415/18, not published, EU:T:2020:349, paragraph 24 and the case-law cited).
23      In addition, it should be observed that acceptance of an application for confidential treatment does not prevent an intervener from using the information concerned in the context of its intervention if it becomes apparent that that information appears elsewhere in the case file which it received (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 59 and the case-law cited). If an intervener lawfully became aware of such information by any other means, it may also use it, as appropriate, in order to support its position, under its own responsibility having regard to the limitations on using that information which may be imposed upon it, for example as a result of obligations arising from professional secrecy or confidentiality agreements (order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 22).
24      It is in the light of those principles that the applicant’s application for confidential treatment vis-à-vis the Republic of Croatia must be examined.
Challenge to the application for confidential treatment
25      The application for confidential treatment concerns certain information included in the application, the reply and several of their annexes thereto, namely:
–        information related to the Sberbank company’s sale of its shares in the applicant to the purchaser which appear (i) in paragraphs 58 and 59, 147 to 156 and 187 of the application and in Annexes A.24, A.25 and A.28 thereto and (ii) in paragraphs 80 and 82 of the reply and in Annexes C.2a and C.2b thereto;
–        information concerning the purchaser’s wealth given in paragraph 56 of the application and Annex A.18a thereto.
26      In support of its application for confidential treatment, the applicant submits that the abovementioned paragraphs in the application, the reply and their annexes, and for which it is requesting confidential treatment, contain sensitive information. The applicant also argues that that information may be used by the Government of the Republic of Croatia and the Croatian media in order to criticise the applicant and the purchaser. The applicant submits that the Republic of Croatia has an interest in discrediting it.
27      The Republic of Croatia disputes the application for confidential treatment in its entirety. First of all, it argues that it needs full access to all the documents produced by the applicant in order to adduce all the evidence in full in its intervention.
28      Next, the Republic of Croatia submits that the application for confidential treatment is not consistent with the Practice Rules for the Implementation of the Rules of Procedure of the General Court in so far as the parts of the documents referred to by the application for confidential treatment are not sufficiently selective. Furthermore, it argues that the applicant has not stated reasons as to the confidential nature of each passage for which it requests confidential treatment.
29      Lastly, the Republic of Croatia disputes the argument put forward by the applicant that it would misuse the information for which confidentiality has been requested. It submits that the Croatian authorities adhere to the obligation of professional secrecy in all proceedings.
30      In accordance with the case-law cited in paragraphs 15 and 20 above, it is necessary, as regards contested applications for confidential treatment, to examine, first of all, whether the information for which confidential treatment has been requested may be considered as secret or confidential vis-à-vis the intervener in question. It is only if that is the case that it is then necessary to weigh the legitimate interests of the applicant against those of the Republic of Croatia.
The information related to the sale by the Sberbank company of its shares in the applicant
31      In the first place, as regards paragraph 58 of the application, the applicant requests confidential treatment of part of that paragraph on the ground that it contains sensitive information on the sale by the Sberbank company of its shares in the applicant. That paragraph contains information on the terms of that sale, such as, inter alia, the price at which the sale took place, the purchase of a receivable, the schedule planned for the payment, and the selling price that was contemplated with other potential investors. That information must be considered as being connected with the applicant’s business secrets since it includes financial information which is not normally available to parties that are not directly connected with the applicant. However, some of the information is also reproduced in the defence submitted by the Council and in certain annexes produced by the applicant for which it has not sought confidential treatment. The nominal price for the sale included at the end of the third sentence of paragraph 58 and the fact that that sale includes the purchase of a receivable also appear in paragraphs 46 and 120 of the defence. Furthermore, the amount of that receivable included in parentheses in the penultimate sentence of paragraph 58 also appears on page 22 of Annex A.4 to the application (page 195 of the consecutive page numbering). Consequently, in accordance with the case-law cited in paragraph 19 above, the request for confidential treatment related to that information, which has already been disclosed, must be dismissed.
32      Weighing up the competing interests leads to the conclusion that the information appearing in paragraph 58 of the application, related to the sale in question, does not appear to be necessary for the exercise of the procedural rights of the Republic of Croatia. Consequently, the applicant’s request should be granted and confidential treatment should be accorded to paragraph 58 of the application, with the exception of the information on the nominal price for the sale at the end of the third sentence of paragraph 58, on the purchase of the receivable at the beginning of the fourth sentence of paragraph 58 and on the amount of that receivable appearing in parentheses in the penultimate sentence of paragraph 58.
33      In the second place, as regards paragraphs 147, 148 and 154 of the application, it should be observed, first, that paragraph 147 of the application contains information that details the reasons underlying the decision by the Sberbank company to sell its shares in the applicant while, second, paragraphs 148 and 154 of the application provide details as to why the purchaser acquired those shares. While those paragraphs do not include any detailed commercial information, they do describe the business strategy pursued by the Sberbank company and the purchaser in relation to the applicant. Accordingly, that information should be considered as being connected with the applicant’s business secrets since it contains details which are not available to third parties that are not connected with the applicant. In addition, in the context of the weighing up of the competing interests, it should be concluded that that information is not necessary for the exercise of the procedural rights of the Republic of Croatia. Consequently, the request for confidentiality concerning the information in paragraphs 147, 148 and 154 of the application should be upheld.
34      In the third place, paragraphs 59, 149, 151 and 152 of the application contain information on the financing used by the purchaser in the framework of that sale, including the obtaining of a loan from a Russian bank via another company (‘the AI company’) and, in particular, the guarantees associated with that loan. First of all, it should be observed that the information related to the use of that Russian bank and to the guarantees associated with the loan granted by it is set out in full in paragraph 125 of the defence and in part in paragraph 46 and the third indent of paragraph 130 thereof, for which the applicant has not requested confidential treatment. Consequently, in accordance with the case-law cited in paragraph 19 above, the request for confidential treatment related to paragraphs 59, 149, 151 and 152 must be dismissed.
35      Next, it should be observed that that same information concerning the guarantees associated with the loan granted by the Russian bank also appears in the third indent of Annex A.25 to the application. As a result, as is apparent from the preceding paragraph, that information has been disclosed in paragraph 125 of the defence, for which no application for confidential treatment has been submitted. Furthermore, Annex A.25 to the application includes other information for which the applicant has requested confidential treatment, such as the date of the grant of that loan or the fact that the bank financed that loan (first indent of Annex A.25), which are business secrets. In addition, the second indent of that annex concerns the purpose of the loan. However, it is apparent from paragraph 46 of the defence that that loan was granted in the framework of a transaction while the date of that transaction appears in paragraph 18 of the rejoinder, for which the applicant has not requested confidentiality. Consequently, in accordance with the case-law referred to in paragraph 19 above, the request for confidential treatment related to the second and third indents of Annex A.25 to the application must be dismissed while the request concerning the other redacted passages of that annex should be upheld.
36      Lastly, paragraph 80 of the reply also concerns the guarantees provided by the purchaser in the framework of the loan granted by the Russian bank. However, as is apparent from paragraph 34 above, those guarantees are also described in paragraph 125 of the defence, such that confidential treatment of paragraph 80 of the reply must be rejected.
37      In the fourth place, as regards paragraphs 150 and 153 of the application, it should be observed that paragraph 150 thereof includes information on the AI company, which was involved in the loan granted by the Russian bank, and on the use of that loan by the purchaser. In addition, the redacted part of paragraph 153 of the application details the economic interests of the Russian bank in the context of that loan. It must be held that those paragraphs contain information which is not available to third parties in respect of the applicant. Consequently, that information constitutes business secrets, in accordance with the case-law cited in paragraph 18 above. However, it should be observed that the principal amount of that loan, appearing in the second sentence of paragraph 150, is also included in paragraph 1.2.4 of the document on page22 of Annex A.4 (page 195 of the consecutive page numbering), for which the applicant has not requested confidentiality. Consequently, pursuant to the case-law cited in paragraph 19 above, the application for confidential treatment of that information, which has already been disclosed, must be rejected. It is therefore necessary to grant the request for confidentiality concerning paragraphs 150 and 153 of the application, with the exception of the information on the principal amount of the loan appearing in the second sentence of paragraph 150 and in footnote 64, which also concerns that amount.
38      In addition, it should be stated that paragraph 187, for which the applicant also requests confidential treatment, contains a reference to paragraph 150 et seq. of the application. Paragraph 187 in essence reproduces the content of paragraph 153, for which confidentiality has been granted. Consequently, it is also necessary to grant confidential treatment to paragraph 187.
39      In the fifth place, paragraph 82 of the reply contains information on the purchaser’s payment of interest in connection with the loan granted by the Russian bank. The applicant seeks confidential treatment solely in respect of the exact amount of interest already paid. As regards detailed financial information which is usually not accessible to third parties, that information constitutes a business secret. However, paragraph 82 of the reply has been reproduced in its entirety in paragraph 55 of the rejoinder, in respect of which the applicant has not submitted any request for confidentiality. Consequently, pursuant to the case-law cited in paragraph 19 above, it is necessary to reject confidential treatment in respect of the interest amounts paid by the purchaser as set out in paragraph 82 of the reply.
40      In addition, the applicant requests confidential treatment for Annex A.24 to the application and for Annexes C.2a and C.2b to the reply, which contain information on the interest payments referred to in the previous paragraph. Those annexes include banking documents, in particular the orders for payment of that interest. Those documents include the amounts in roubles of the interest paid by the purchaser, already disclosed in dollars in paragraph 55 of the rejoinder, for which no request for confidentiality has been made. However, the other information in Annexes C.2a and C.2b to the reply are covered by business secrecy, as defined in paragraph 18 above. Weighing up the competing interests leads to the finding that the banking information contained in those annexes related to the interest paid by the purchaser in the framework of the loan granted by the Russian bank does not appear to be necessary for the exercise of the procedural rights of the Republic of Croatia. Consequently, it is necessary to grant the request for confidential treatment concerning Annex A.24 to the application and Annexes C.2a and C.2b to the reply, with the exception of the interest amounts already disclosed in paragraph 55 of the rejoinder.
41      In the sixth place, as regards paragraphs 155 and 156 of the application, it should be observed, first, that paragraph 155 refers to the name of the applicant’s director. However, that information also appears in paragraphs 126 and 128 of the defence, for which no request for confidentiality has been submitted. Second, paragraphs 155 and 156 concern the applicant’s stance on the claim made by the Council, set out in the grounds for including the applicant on the lists annexed to Decision 2014/145 and to Regulation No 269/2014, that the Sberbank company exercises control over the applicant. Consequently, that paragraph does not contain any information of a commercial, competition-related, financial or accounting nature connected with the sale by the Sberbank company of its shares in the applicant and which may be classified inherently as business secrets, for the purposes of the case-law cited in paragraph 18 above. In addition, there is no substantiation for the reasoning put forward by the applicant to the effect that the Republic of Croatia would use the information for which confidential treatment has been requested in order to discredit the applicant or its purchaser. Consequently, the request for confidentiality concerning paragraphs 155 and 156 must be rejected.
42      In the same vein, Annex A.28 to the application is a statement by the applicant’s new director. That statement concerns control over the applicant and does not contain any information related to the sale by the Sberbank company of its shares in the applicant. However, the reasons for the applicant’s application for confidential treatment show that such treatment for that annex was requested in connection with the commercial terms of the sale by the Sberbank company of its shares in the applicant. Consequently, the applicant has not provided any reasoning capable of justifying confidential treatment of Annex A.28 to the application and the request for confidential treatment concerning that annex must be rejected.
Information on the purchaser’s wealth
43      First, paragraph 56 of the application includes information on the purchaser. More specifically, it refers to the assets owned by that person. That information is of a financial or commercial character and is not normally available to third parties. Consequently, pursuant to the case-law cited in paragraph 18, it constitutes business secrets.
44      In addition, that information on the assets of the purchaser is not such as to prevent the Republic of Croatia from asserting its rights or developing its arguments before the Courts of the European Union, with the result that the request for confidentiality with respect to the information in paragraph 56 of the application should be granted.
45      Second, Annex A.18a to the application is a statement on the net worth of the person purchasing the applicant. It contains detailed information on his assets and on various commercial and financial interests. Accordingly, that information may be considered to be a business secret. That information is not such as to prevent the Republic of Croatia from asserting its rights or putting forward its arguments before the Courts of the European Union. However, it must be observed that the total net worth of the purchaser shown on page 5 of Annex 18a (page 490 of the consecutive page numbering) also appears in paragraph 46 of the defence, in respect of which there has been no request for confidential treatment. Accordingly, pursuant to the case-law cited in paragraph 19 above, confidentiality in respect of that information must be rejected. Consequently, the request for confidentiality of Annex A.18a to the application should be granted with the exception of the total net worth of the purchaser appearing on page 5 of Annex 18a to the application (page 490 of the consecutive page numbering).
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The application for confidential treatment made by SBK Art OOO vis-à-vis the Republic of Croatia is granted, in so far as concerns the following information:
–        the redacted passages in paragraph 56 of the application;
–        the redacted passages in paragraph 58 of the application, with the exception of the information on the nominal price for the sale of the shares appearing at the end of the third sentence in paragraph 58, on the purchase of the receivable at the beginning of the fourth sentence in paragraph 58, and on the amount of that receivable in parentheses in the penultimate sentence in paragraph 58;
–        the redacted passages in paragraphs 147 and 148 of the application;
–        the redacted passages in paragraph 150 of the application, with the exception of the principal amount of the loan appearing in the second sentence of that paragraph and in footnote 64;
–        the redacted passages in paragraphs 153, 154 and 187 of the application;
–        the redacted passages in Annex A.18a to the application, with the exception of the total net worth of the purchaser appearing on page 5 of Annex A.18a, and the redacted passages in Annexes A.24 and A.25 to the application, with the exception of the final two indents of Annex A.25 to the application;
–        the redacted passages in Annexes C.2a and C.2b to the reply, with the exception of the interest amounts already disclosed in paragraph 55 of the rejoinder.
2.      The application for confidential treatment is dismissed as to the remainder.
3.      The Registrar shall set a time limit for SBK Art OOO to submit a non-confidential version of the application, the reply and their annexes, in accordance with points 1 and 2 of the operative part.
4.      The Registrar shall serve the non-confidential versions of the application, the reply and their annexes submitted by SBK Art OOO, in accordance with point 3 of the operative part, on the Republic of Croatia and shall set a time limit for the latter to submit any observations to supplement its intervention lodged with the Registry of the General Court on 6 November 2023.
5.      The costs are reserved.
Luxembourg, 13 December 2023.
V. Di Bucci
D. Spielmann
Registrar
President
*      Language of the case: English.