ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
21 December 2022 (*)
(Confidentiality – Challenge)
In Case T‑258/22,
AAT Byelorussian Steel Works – management company of ‘Byelorussian Metallurgical Company’ holding (BSW – management company of ‘BMC’ holding), established in Zhlobin (Belarus), represented by N. Tuominen and L. Engelen, lawyers,
applicant
v
Council of the European Union, represented by E. Rebasti and A. Boggio-Tomasaz, acting as Agents,
defendant,
supported by
European Commission, represented by M. Carpus Carcea and J. Norris, acting as Agents,
intervener,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, AAT Byelorussian Steel Works – management company of ‘Byelorussian Metallurgical Company’ holding (BSW – management company of ‘BMC’ holding), seeks annulment of Council Decision (CFSP) 2022/356 of 2 March 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 67, p. 103) and Council Regulation (EU) 2022/355 of 2 March 2022 amending Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 67, p. 1) (together, ‘the contested measures’) in their entirety in so far as they concern the applicant.
Procedure
2        By letter of 4 July 2022, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council of the European Union.
3        By document lodged at the Registry of the General Court on 1 September 2022, the applicant lodged, in accordance with Article 144(2) of the Rules of Procedure of the General Court, a request for confidential treatment vis-à-vis the Commission concerning certain information in the application and in one of the annexes thereto.
4        By order of 14 September 2022, the Court granted the Commission leave to intervene and provisionally restricted disclosure of the documents to the non-confidential versions produced by the applicant, pending any observations by the Commission on the application for confidential treatment.
5        By document lodged at the Court Registry on 29 September 2022, the Commission contested the application for confidential treatment in its entirety.
Application for confidential treatment
Subject matter of the application
6        By its application for confidential treatment, relying on the presence of information covered by its business secrets, the applicant requests confidential treatment, vis-à-vis the Commission, of the following:
–        the first two sentences in paragraph 28 of the application;
–        paragraph 29 of the application;
–        Annex A.3.
The merits of the application for confidential treatment
Preliminary observations
7        Under Article 144(7) of the Rules of Procedure, ‘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’.
8        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 (order of 23 July 2021, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2021:506, paragraph 10 and the case-law cited).
9        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 23 July 2021, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2021:506, paragraph 12 and the case-law cited).
10      The challenging of the request for confidentiality by the intervening parties 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. Accordingly, a request for confidential treatment must be upheld in so far as it concerns items which have not been disputed, expressly and precisely, by those parties (order of 25 November 2019, Bilbaína de Alquitranes v Commission, T‑645/18, not published, EU:T:2019:844, paragraph 14 and the case-law cited).
11      In the present case, it should be noted that, in its challenge to the application for confidential treatment, the Commission objects to that application in its entirety.
12      Where the examination leads the President of the Chamber before which the case is pending to conclude that information in the case file in respect of which confidential treatment is expressly and precisely contested is in fact confidential, it is incumbent on the President to strike a balance between the legitimate interest of the party seeking to have that confidentiality preserved in not having those secrets disclosed and the equally legitimate concern of the parties seeking to have that confidentiality withdrawn in having the information necessary for the purpose of being fully in a position to assert their rights and to state their case before the EU Courts (order of 10 February 2020, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2020:69, paragraph 24).
13      Moreover, in accordance with settled case-law, 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).
14      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).
15      It is in the light of those principles that the applicant’s request for confidential treatment vis-à-vis the Commission must be examined.
The first two sentences in paragraph 28 of the application
16      As regards the first sentence in paragraph 28 of the application, it should be noted that the applicant’s business results for the period 2019-2021 are set out therein, with a reference to the exact figures for those results. First, in the fourth sentence in that paragraph of the application, which is not the subject of any request for confidential treatment, the applicant refers to those business results over the last three years without, however, disclosing the exact figures contained in the first sentence in that paragraph of the application. Second, the information relating to the business results over the last three years was also reproduced in paragraph 58 of the defence. Consequently, in accordance with the case-law cited in paragraph 13 above, the application for confidential treatment of the first sentence in paragraph 28 of the application must be rejected, with the exception of the request relating to the exact figures for the applicant’s business results relating to the period 2019-2021 which, in accordance with the case-law cited in paragraph 14 above, must be regarded as relating to the applicant’s business secrets.
17      As regards the second sentence in paragraph 28 of the application containing economic forecasts presented by the applicant, in the light of the case-law cited in paragraph 14 above, those data constitute business secrets, since they contain contemporaneous business and financial information which is not normally available to those not directly connected to the applicant. In that connection, the confidential treatment of those figures, along with the exact figures for the applicant’s business results for the period 2019-2021 in the first sentence in paragraph 28 of the application, is not such as to prevent the Commission from asserting its rights or setting out its arguments before the Courts of the European Union, inasmuch as those data do not appear to be decisive for the purposes of the arguments which the Commission might put forward before the Court. It follows that confidential treatment must be granted in respect of the second sentence in paragraph 28 of the application.
Paragraph 29 of the application
18      The first and third sentences in paragraph 29 of the application contain business information. Consequently, in the light of the case-law cited in paragraph 14 above, the applicant’s request for confidential treatment in that regard must be granted, without that conclusion being such as to prevent the Commission from asserting its rights or putting forward its arguments before the Courts of the European Union.
19      By contrast, as regards the second sentence in that paragraph of the application, containing general information on the consequences of Russian aggression in Ukraine for the applicant’s economic activity, it must be held that, even if that information could be classified as business secrets, which the applicant does not substantiate in any way, it is essentially reproduced in paragraph 58 of the defence. Consequently, in accordance with the case-law cited in paragraph 13 above, the application for confidential treatment must be rejected with regard to the second sentence in paragraph 29 of the application.
Annex A.3
20      As regards the request for confidential treatment of Annex A.3, it should be noted that this contains, first, a short-term temporary authority granted by the applicant’s General Director to its Deputy Director-General. Those senior posts within the applicant company cannot constitute business secrets. Moreover, the applicant does not explain how that short-term temporary authority formed part of its business secrets. Consequently, the application for confidential treatment of that information must be rejected.
21      Second, Annex A.3 contains a letter from the applicant to the Court. That letter contains, in addition to an introduction referring to the contested measures and the authority granted to its Deputy Director-General, referred to in paragraph 20 above, five recitals reproducing paragraphs 26 to 30 of the application, respectively. Since the applicant has not requested confidential treatment in respect of paragraphs 26, 27 and 30 of the application, in accordance with the case-law cited in paragraph 13 above, that treatment must be rejected as regards the elements containing those paragraphs of the application, namely recitals 1, 2 and 5 of the applicant’s letter, and as regards the citation of the contested measures and the authority examined in paragraph 20 above.
22      In so far as concerns the reproduction of paragraph 28 of the application in recital 3 of the applicant’s letter, it should be noted that that recital merely reproduces the first two sentences in that paragraph of the application. However, by analogy with the reasoning and conclusion set out in paragraphs 16 and 17 above with regard to the request for confidential treatment of that paragraph of the application, confidential treatment must be granted only in respect of the exact figures for the applicant’s business results relating to the period 2019-2021, set out in the first sentence in recital 3 of Annex A.3, and of the second sentence in that recital.
23      As regards recital 4 of Annex A.3, which reproduces the content of paragraph 29 of the application, it is appropriate to follow the same reasoning as that set out in paragraphs 18 and 19 above and to grant confidential treatment only in respect of the first and third sentences in that recital.
24      Third, Annex A.3 contains a list of the applicant’s customers. Such information constitutes business secrets of a commercial and competitive nature. Moreover, in the present case, the balance of interests does not justify the disclosure of that information, since the Commission cannot be prevented from asserting its rights and putting forward its arguments before the Courts of the European Union in the absence of information on the identity of the applicant’s customers. Accordingly, the request for confidential treatment of the list of the applicant’s customers must be granted.
25      Fourth, Annex A.3 contains a complete list of the goods manufactured by the applicant. That information constitutes business secrets. This is information of a commercial and competitive nature which is not usually available to those not directly connected to the applicant. Accordingly, the application for confidential treatment of that information must be granted without the Commission being prevented from asserting its rights or putting forward its arguments before the Courts of the European Union as a result.
On those grounds,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The application for confidential treatment made by the applicant vis-à-vis the Commission is hereby granted, in so far as concerns the following information:
–        the exact figures for the applicant’s business results relating to the period 2019-2021, redacted in the first sentence in paragraph 28 of the application;
–        the second redacted sentence in paragraph 28 of the application;
–        the first and third redacted sentences in paragraph 29 of the application;
–        the exact figures for the applicant’s business results relating to the period 2019-2021 set out in recital 3 of Annex A.3;
–        the second sentence in recital 3 of Annex A.3;
–        the first and third sentences in recital 4 of Annex A.3;
–        the list of the applicant’s customers set out in Annex A.3;
–        the list of products manufactured by the applicant set out in Annex A.3.
2.      The application for confidential treatment is dismissed as to the remainder.
3.      A non-confidential version of the items of evidence referred to above, complying with points 1 and 2 of the operative part, shall be communicated by AAT Byelorussian Steel Works – management company of ‘Byelorussian Metallurgical Company’ holding (BSW – management company of ‘BMC’ holding) within the time limit indicated by the Registrar, and the latter shall ensure that it is served on the Commission.
4.      The Registrar shall set a time limit for the Commission to submit any observations supplementing its statement in intervention lodged with the Registry of the General Court on 26 October 2022.
5.      The costs are reserved.
Luxembourg, 21 December 2022.
E. Coulon
R. da Silva Passos
Registrar
President
*      Language of the case: English.