ORDER OF THE PRESIDENT OF THE COURT
25 March 2021 (*)
(Appeal – Intervention – Confidentiality – Information which is publicly available)
In Case C‑119/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 February 2021,
PlasticsEurope, established in Brussels (Belgium), represented by R. Cana and E. Mullier, avocates,
appellant,
the other parties to the proceedings being:
European Chemicals Agency (ECHA),
defendant at first instance,
Federal Republic of Germany,
French Republic,
ClientEarth,
interveners at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal of S. Rodin, Judge-Rapporteur,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its appeal, PlasticsEurope seeks to have set aside the judgment of the General Court of the European Union of 16 December 2020, PlasticsEurope v ECHA (T‑207/18, EU:T:2020:623) by which the General Court dismissed its action for annulment of Decision ED/01/2018 of the European Chemicals Agency (ECHA) of 3 January 2018, by which the existing entry relating to bisphenol A on the list of identified substances with a view to their eventual inclusion in Annex XIV to 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, and corrigendum OJ 2007 L 136, p. 3), was supplemented to the effect that bisphenol A was identified as a substance with endocrine-disrupting properties that may have serious effects on the environment which give rise to an equivalent level of concern to those of other substances listed in Article 57(a) to (e) of that regulation, within the meaning of Article 57(f) thereof.
2        By a document lodged at the Court Registry on 25 February 2021, the appellant requested the Court to grant confidential treatment, vis-à-vis the French Republic, to information relating to the identity of its members as importers or manufacturers of bisphenol A, referred to on pages 84, 87 and 88 of the annexes to the appeal. The appellant points out that that information corresponds to the information which appeared in paragraphs 17, 34 and 35 of the application at first instance and in respect of which the General Court had granted, at the appellant’s request, by an order of 9 October 2018, confidential treatment vis-à-vis the French Republic, without prejudice to the ability of that Member State subsequently to oppose that request. It is apparent from the judgment under appeal that that request was not challenged by the French Republic.
3        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. Furthermore, 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 before the General Court.
4        However, where a party is requesting, in relation to a party which intervened before the General Court, confidential treatment in respect of material produced before the Court of Justice which has already been treated as confidential in relation to that same party in the proceedings at first instance, the 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 13 December 2016, Lundbeck v Commission, C‑591/16 P, not published, EU:C:2016:967, paragraph 5).
5        By contrast, if it appears that such material is, in fact, publicly available, confidential treatment of it would be unnecessary, with the result that the request for confidential treatment of that material serves no purpose (see, to that effect, order of the President of the Court of 25 October 2017, Sun Pharmaceutical Industries and Ranbaxy (UK) v Commission, C‑586/16 P, EU:C:2017:831, paragraph 12). There is therefore no need to maintain such treatment, granted by the General Court, once the Court of Justice has information that the material at issue is publicly available.
6        In the present case, as noted in the order of the President of the Court of 2 September 2020, PlasticsEurope v ECHA (C‑876/19 P, not published, EU:C:2020:667, paragraph 7), the information relating to the identity of the appellant’s members, which is the subject of the present request for confidential treatment, can be easily accessed by the public on the internet. Furthermore, since the appellant itself stated that the identity of those members had been mentioned in the application at first instance only ‘as an example’, such a reference cannot be regarded as being capable, as such, of harming their reputation.
7        It follows from the foregoing that the appellant’s request that the Court of Justice should treat as confidential, vis-à-vis the French Republic, the identity of its members as importers or manufacturers of bisphenol A, set out on pages 84, 87 and 88 of the annexes to the appeal, must be refused.
On those grounds, the President of the Court hereby orders:
1.      The request for confidential treatment vis-à-vis the French Republic is refused.
2.      The costs are reserved.
Luxembourg, 25 March 2021.
A. Calot Escobar
K. Lenaerts
Registrar
President
*      Language of the case: English.