ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
16 October 2018 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑383/17,
Hansol Paper Co. Ltd, established in Seoul (South Korea), represented initially by J.-F. Bellis, B. Servais and A. Tel, and subsequently by J.‑F. Bellis and B. Servais, lawyers,
applicant,
v
European Commission, represented by A. Demeneix, M. França and N. Kuplewatzky, acting as Agents,
defendant,
supported by
European Thermal Paper Association (ETPA), established in Zürich (Switzerland), represented by H. Hobbelen and J. Rivas Andrés, lawyers,
intervener,
APPLICATION for annulment of Commission Implementing Regulation (EU) 2017/763 of 2 May 2017 imposing a definitive anti‑dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2017 L 114, p. 3), in so far as it relates to the applicant,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Procedure
1        By application lodged at the Court Registry on 20 June 2017, the applicant, Hansol Paper Co. Ltd, brought the present action for annulment of Commission Implementing Regulation (EU) 2017/763 of 2 May 2017 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain lightweight thermal paper originating in the Republic of Korea (OJ 2017 L 114, p. 3) (‘the contested regulation’), in so far as it relates to the applicant.
2        By document lodged at the Court Registry on 4 October 2017, European Thermal Paper Association (‘ETPA’), a complainant in the procedure which led to the adoption of the contested regulation, applied for leave to intervene in support of the form of order sought by the Commission.
3        By documents lodged at the Court Registry on 24 October 2017 and 6 November 2017, the applicant requested, pursuant to Article 144(2) of the Rules of Procedure of the General Court, that certain information in the application, the defence and the reply be treated as confidential vis‑à-vis ETPA, if the latter were to be granted leave to intervene. To that end, the applicant submitted non-confidential versions of those documents.
4        By order of the President of the Seventh Chamber of the General Court of 27 November 2017, ETPA was granted leave to intervene in support of the form of order sought by the Commission. At that stage of the proceedings, only the non-confidential versions of the documents were sent to the intervener and the decision on whether the application for confidential treatment is well founded was reserved.
5        By document lodged at the Court Registry on 15 December 2017, the intervener objected to certain items of the application, the defence and the reply for which the applicant had requested confidential treatment.
6        By document lodged at the Court Registry on 7 January 2018, the applicant requested that certain parts of the rejoinder be treated as confidential vis-à-vis the intervener and submitted a non-confidential version of that document.
7        By document lodged at the Court Registry on 26 January 2018, the intervener objected to certain items of the rejoinder for which the applicant requested confidential treatment.
8        By document lodged at the Court Registry on 5 March 2018, the applicant requested that certain parts of its observations on the statement in intervention be treated as confidential vis-à-vis the intervener and submitted a non-confidential version of those observations.
9        By document lodged at the Court Registry on 30 March 2018, the intervener stated that it had no objection to the request for confidential treatment submitted by the applicant in respect of its observations on the statement in intervention.
10      By way of measures of organisation of procedure adopted pursuant to Articles 88 to 90 of the Rules of Procedure, the Court requested the applicant and the intervener to answer certain questions and to provide certain documents. The parties complied with those requests within the prescribed period.
The requests for confidential treatment
Considerations of principle
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.’
12      That provision lays down the principle that interveners are to receive a copy of every document served on the 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 (see order of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 13 and the case-law cited).
13      In that regard, the party which makes an application for confidential treatment is required to specify the documents or information covered and to state duly the reasons why they are claimed to be confidential (order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 12 and the case‑law cited).
14      Where a party makes an application under Article 144(2) of the Rules of Procedure, the President may confine his examination to the documents and information the confidentiality of which is disputed. Therefore, an application for confidential treatment may be allowed in so far as it relates to items the confidentiality of which has not been disputed by the intervener (orders of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 10, and of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 14).
15      In so far as an application made under Article 144(2) of the Rules of Procedure is disputed, the President of the formation of the Court 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 (orders of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraph 15, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 17).
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 (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 34, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 18).
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 (orders of 18 November 2008, Zhejiang Harmonic Hardware Products v Council, T‑274/07, not published, EU:T:2008:508, paragraph 25, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 19).
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. Information may in fact lose its confidential character where it is possible for the general public or specialists to have access to it. In general, data that is five or more years old is to be regarded as historic, unless there is some special interest at stake justifying the protection of its confidentiality (order of 18 April 2013, Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, not published, EU:T:2013:199, paragraph 13 and the case-law cited).
19      Where his examination leads him to conclude that some of the documents and information whose confidentiality is disputed are secret or confidential, the President of the formation of the Court is then to assess and weigh up the competing interests, for each document and piece of information (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 42, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 20).
20      Thus, where confidential treatment is requested in the interests of the applicant, the President weighs up, 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 (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 44, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 21).
21      In any event, an applicant for confidential treatment must, given the adversarial and public nature of the 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 them (orders of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 46, and of 27 September 2017, Changmao Biochemical Engineering v Commission, T‑741/16, not published, EU:T:2017:700, paragraph 22).
22      The requests for confidential treatment in the present case will be examined in the light of those principles.
Whether the requests for confidential treatment of certain information in the application and the annexes thereto are well founded
23      In the first place, as regards the application, the applicant requested the confidential treatment of certain passages:
–        in paragraphs 12, 47, 52, 55 to 58, 60, 61, 63, 66, 67, 93, 94, 114, 121, 168 to 170 and footnotes 57, 58, 60 and 74, in so far as they contain information on the applicant’s sales volumes and values;
–        in paragraphs 88 to 96 and footnote 74, in so far as they contain information on the types of products sold by the applicant;
–        in paragraph 116, in so far as it contains business information on the costs used for the purposes of calculating the injury margin.
24      In that regard, the intervener objected to the requests for confidential treatment in respect of passages in paragraphs 47, 56, 57 and 88 to 96 of the application.
25      Consequently, first of all, and in accordance with the case-law recalled in paragraph 14 above, the application for confidential treatment should be granted in respect of the items which have not been disputed by the intervener, namely the redacted passages in paragraphs 12, 52, 55, 58, 60, 61, 63, 66, 67, 114, 116, 121, 168 to 170 and footnotes 57, 58, 60 and 74.
26      Next, as regards paragraphs 47, 56 and 57 of the application, the intervener contended that the redacted information on the weighting of dumping margins was given in the form of ranges in the contested regulation. In response to the measure of organisation of procedure adopted by the Court, the applicant indicated that it shared the intervener’s view that the redacted information in paragraphs 47, 56 and 57, the confidentiality of which is in dispute, could have been given in the form of ranges. In those circumstances, the request for confidential treatment made by the applicant, in the form of redacting the data relating to the weighting of dumping margins in paragraphs 47, 56 and 57 of the application, must be refused. The applicant must produce a non-redacted version of those paragraphs by replacing the data in question with the ranges set out in the contested regulation.
27      With regard to paragraphs 88 to 96 of the application, the intervener contended that the product control numbers (‘PCNs’), which are redacted, were mentioned in several documents received during the administrative procedure. In the context of the measure of organisation of procedure adopted by the Court, the applicant submitted, in essence, that the fact that several PCNs are mentioned in the documents relied on by the intervener does not give any indication as to the nature of the PCNs mentioned in paragraphs 88 to 96 of the application.
28      On that point, it is sufficient to note that, since the information relating to the PCNs may, in conjunction with other information, be confidential in nature, it is for the intervener to explain how the information relating to the PCNs is necessary in the present case for the exercise of its procedural rights, which it has not done (see, to that effect, order of 27 September 2017, Yieh United Steel v Commission, T‑607/15, not published, EU:T:2017:698, paragraph 53). Furthermore, even if the intervener were aware of the PCNs used in the administrative procedure before the Commission, that fact has no bearing on the identification of the PCNs concerned in the applicant’s written submissions before the Court. It follows from the foregoing that the request for confidential treatment of the PCNs must be granted.
29      In the second place, as regards the annexes to the application, the applicant requested the confidential treatment of:
–        certain passages in Annexes A.6, A.9, A.10, A.16, A.17, A.20, A.22, A.24, A.26, A.28, A.29, A.30, A.31 and A.32;
–        certain passages in Annexes A.19, for the purposes of ensuring consistency between the document in that annex and that provided during the administrative procedure in its non-confidential version.
30      In that regard, first of all, it should be noted that the intervener does not dispute the applicant’s requests for confidential treatment relating to certain passages in Annexes A.6, A.9, A.10, A.16, A.17, A.20, A.22, A.24, A.26, A.28, A.29, A.30, A.31 and A.32 to the application. Consequently, and in accordance with the case‑law recalled in paragraph 14 above, the application for confidential treatment should be granted in respect of the redacted passages in those annexes.
31      Next, it should be noted that the intervener disputes the request for confidential treatment of pages 336, 337, 339, 340 and 358 of Annex A.19 to the application, in so far as certain passages redacted on those pages, referred to by the intervener in paragraph 6 of its objections of 15 December 2017 to the application for confidential treatment, were not redacted in the non-confidential version of that document produced before the Commission. In that regard, the applicant stated, in its response to the measure of organisation of procedure adopted by the Court, that it was withdrawing its requests for confidential treatment to that effect. Therefore, the applicant must produce a non-redacted version of pages 336, 337, 339, 340 and 358 of Annex A.19 to the application, in respect of the items specifically referred to by the intervener in paragraph 6 of its objections of 15 December 2017 to the application for confidential treatment.
32      Furthermore, the intervener also refers, in its objections of 15 December 2017 to the application for confidential treatment, to an item reproduced on page 361 of Annex A.19 to the application. However, it must be noted in that regard that the intervener does not dispute an item allegedly regarded as confidential by the applicant in the proceedings before the Court, but notes that an item treated as confidential in the procedure before the Commission is disclosed on page 361, namely the name of a company. Therefore, it must be held that the intervener does not dispute an item for which confidential treatment was requested on page 361 of Annex A.19 to the application. Consequently, there is no need to adjudicate in that regard in the present order. In any event, even if by stating that ‘there can be no objection to the disclosure of the identity of that company name generally’, the intervener is disputing the redaction of that company’s name in other parts of the applicant’s written submissions, such a statement is not sufficiently precise, or justified, to be accepted. Moreover, the intervener seems to have understood, in view of the item identified on page 361 of Annex A.19 to the application, and as it states in its objections of 15 December 2017 to the application for confidential treatment, the company to which the code used in the document produced before the Commission corresponds. Therefore, there is nothing to suggest that the intervener does not have the information necessary for exercising its procedural rights.
Whether the requests for confidential treatment of certain information in the defence are well founded
33      As regards the defence, the applicant requested the confidential treatment of passages:
–        in paragraphs 60, 92, 93, 129, 164, 172 and 173 and footnote 89, in so far as they contain information on the applicant’s sales volumes and values;
–        in paragraphs 92, 93, 141, 143, 146, 151, 152, 166 and 172 and footnote 89, in so far as they contain information on the types of products sold by the applicant;
–        in paragraphs 145, 146, 148 et 154 and footnotes 82 to 84 and 86, in so far as they contain confidential information submitted by the applicant in its response to the anti-dumping questionnaire.
34      The intervener disputes the request for confidential treatment solely in respect of paragraph 146 of the defence. The intervener submits that it seems inconsistent that the term ‘RLSALUR’ is not redacted in paragraph 56 of the application, while that term could also have been used in paragraph 146 of the defence, albeit redacted, in the non-confidential version. The intervener adds, in its response to the measure of organisation of procedure adopted by the Court, that ‘if this is the case, such redaction is unnecessary and inconsistent in light of the combined reading of the above paragraphs, and should not be accepted by your Court’. In that regard, it is sufficient to state that the intervener’s premiss is unfounded. Consequently, the intervener’s objection must be dismissed and the confidential treatment requested by the applicant for paragraph 146 of the defence must be granted.
35      In those circumstances, all of the requests for confidential treatment made by the applicant should be granted in respect of the defence.
Whether the requests for confidential treatment of certain information in the reply and the annexes thereto are well founded
36      In the first place, with regard to the reply, the applicant requested the confidential treatment of passages:
–        in paragraphs 15, 19, 20, 26, 28, 38, 39, 42, 45, 52, 53, 56, 58, 60, 61, 65 and 75 and footnotes 21, 34, 35 and 49, in so far as they contain information on the applicant’s sales volumes and values;
–        in paragraphs 15, 20, 36, 38, 40, 42, 44 and 45 and footnotes 42, 49 and 50, in so far as they contain information on the types of products sold by the applicant.
37      In that regard, first of all, it should be noted that the intervener does not dispute the applicant’s requests for confidential treatment in respect of paragraphs 19, 20, 26, 28, 39, 52, 53, 56, 58, 60, 61 and 65 and footnotes 21, 34, 35, 42 and 50 of the reply. Consequently, and in accordance with the case-law recalled in paragraph 14 above, the application for confidential treatment should be granted in respect of the redacted passages in those paragraphs and footnotes.
38      Next, the intervener disputes the requests for confidential treatment of paragraphs 15, 36, 38, 40, 42, 44 and 45 and footnote 49, in so far as the PCNs are redacted. For the same reasons as those set out in paragraph 28 above, the applicant’s requests for confidential treatment should be granted.
39      Furthermore, the intervener disputes the request for confidential treatment of paragraph 75 of the reply, in so far as that paragraph does not appear, in its view, to contain data relating to the applicant’s sales. In that regard, it is sufficient to note that the intervener’s premiss is unfounded. Consequently, the intervener’s objection must be dismissed and the confidential treatment requested by the applicant for paragraph 75 of the reply must be granted.
40      In the second place, as regards the annexes to the reply, the applicant requested confidential treatment in respect of page 2 of Annex C.1, in so far as it contains information relating to its affiliated companies. Since the intervener does not dispute this request for confidential treatment, it should be granted in accordance with the case-law recalled in paragraph 14 above.
Whether the requests for confidential treatment of certain information in the rejoinder are well founded
41      As regards the rejoinder, the applicant requested the confidential treatment of passages:
–        in paragraphs 18, 25, 26, 27, 59, 68, 70, 73, 79, 101 and 118 and footnotes 11 and 33, in so far as they contain information on the applicant’s sales volumes and values;
–        in paragraphs 25, 26, 67, 68, 70, 73, 78 and 79 and footnote 32, in so far as they contain information on the types of products sold by the applicant;
42      In that regard, first of all, it should be noted that the applicant, following the objection formulated by the intervener and in its response to the measure of organisation of procedure adopted by the Court, withdrew its request for confidential treatment in respect of paragraph 18 of the rejoinder. Therefore, the applicant must produce a non-redacted version of that paragraph.
43      Next, it should be noted that the intervener disputes the requests for confidential treatment submitted by the applicant only in so far as they related to the PCNs redacted in the rejoinder. In that regard, for the same reasons as those set out in paragraph 28 above, the applicant’s requests for confidential treatment should be granted.
Whether the requests for confidential treatment of certain information in the observations on the statement in intervention are well founded
44      With regard to the observations on the statement in intervention, the applicant requested confidential treatment in respect of certain items in paragraph 2 of those observations, in so far as it contains information on the applicant’s sales volumes.
45      Since the intervener does not dispute this request for confidential treatment, it should be granted in accordance with the case-law recalled in paragraph 14 above.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The applications for confidential treatment made by Hansol Paper Co. Ltd vis-à-vis European Thermal Paper Association (ETPA) are granted in so far as they concern the following items:
–        the redacted passages in paragraphs 12, 52, 55, 58, 60, 61, 63, 66, 67, 88 to 96, 114, 116, 121, 168 to 170 and footnotes 57, 58, 60 and 74 of the application;
–        the redacted passages in Annexes A.6, A.9, A.10, A.16, A.17, A.20, A.22, A.24, A.26, A.28, A.29, A.30, A.31 and A.32 to the application;
–        the redacted passages in Annex A.19 to the application, with the exception of those referred to in paragraph 3 of the operative part of the present order;
–        the redacted passages in paragraphs 60, 92, 93, 129, 141, 143, 145, 146, 148, 151, 152, 154, 164, 166, 172 and 173 and footnotes 82 to 84, 86 and 89 of the defence;
–        the redacted passages in paragraphs 15, 19, 20, 26, 28, 36, 38 to 40, 42, 44, 45, 52, 53, 56, 58, 60, 61, 65 and 75 and footnotes 21, 34, 35, 42, 49 and 50 of the reply;
–        page 2 of Annex C.1 to the reply;
–        the redacted passages in paragraphs 25, 26, 27, 59, 67, 68, 70, 73, 78, 79, 101 and 118 and footnotes 11, 32 and 33 of the rejoinder;
–        the redacted passages in paragraph 2 of the applicant’s observations on the statement in intervention.
2.      The applications for confidential treatment are dismissed as to the remainder.
3.      The Registrar shall set a date for Hansol Paper Co. Ltd to provide:
–        a non-confidential version of the application, including in paragraphs 47, 56 and 57 the ranges of the weighting of the dumping margins referred to in the contested regulation;
–        a non-confidential version of Annex A.19 to the application, including a non-redacted version of pages 336, 337, 339, 340 and 358, in respect of the items specifically referred to by the intervener in paragraph 6 of its objections of 15 December 2017 to the application for confidential treatment;
–        a non-confidential version of the rejoinder, including a non-redacted version of paragraph 18.
4.      The Registrar shall serve the non-confidential versions of the application, Annex A.19 to the application and the rejoinder, filed by Hansol Paper Co. Ltd in accordance with paragraph 3 of the operative part of the present order, on ETPA and shall set a date for the latter to submit any observations supplementing its statement in intervention lodged at the Court Registry on 23 January 2018.
5.      The costs are reserved.
Luxembourg, 16 October 2018.
E. Coulon
V. Tomljenović
Registrar
President
*      Language of the case: English.