ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
1 March 2018 (*)
(Confidentiality — Challenge by an intervener)
In Case T‑185/17,
PlasticsEurope, established in Brussels (Belgium), represented by R. Cana, F. Mattioli and É. Mullier, lawyers,
applicant,
v
European Chemicals Agency (ECHA), represented by W. Broere, N. Herbatschek and M. Heikkilä, acting as Agents,
defendant,
supported by
The French Republic, represented by D. Colas, J. Traband and B. Fodda, acting as Agents,
and by
ClientEarth, represented by P. Kirch, lawyer,
interveners,
APPLICATION pursuant to Article 263 TFEU for annulment of the decision of ECHA of 4 January 2017 concerning the inclusion of 4,4’-isopropylidenediphenol (bisphenol A or BPA) on the list of substances identified 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, corrigendum OJ 2007 L 136, p. 3),
makes the following
Order
Procedure and subject matter of the application
1        On 12 January 2017, the European Chemicals Agency (ECHA) published on its website a decision of 4 January 2017 concerning the inclusion of bisphenol A in the ‘candidate list of substances’, namely the list of substances identified for 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, corrigendum OJ 2007 L 136, p. 3), as amended, on the ground that that substance had been identified as toxic for reproduction for the purposes of Article 57(c) of Regulation No 1907/2006 (‘the contested decision’).
2        On 21 March 2017, the applicant, PlasticsEurope, brought an action under Article 263 TFEU for annulment of the contested decision published on 12 January 2017.
3        By document lodged at the Court Registry on 10 July 2017, ClientEarth applied for leave to intervene in support of the form of order sought by ECHA.
4        That application to intervene was notified to the applicant and to ECHA, in accordance with Article 144(1) of the Rules of Procedure of the General Court.
5        By separate document, lodged at the Court Registry on 28 August 2017, the applicant requested, in accordance with Article 144(2) of the Rules of Procedure, that certain information contained in the application and in the annexes thereto not be notified to ClientEarth. For the purposes of that notification, it submitted a non-confidential version of the application.
6        The information in respect of which the applicant requested confidential treatment is the following:
–        the identity (names) of its members which are involved in marketing BPA, as mentioned in paragraphs 14, 34 and 35 of the application (pages 7 and 13 of the application);
–        the identity (name) of the company, which is a registrant of BPA, mentioned in the description of Annex A.9 in the Schedule of Annexes (page 32 of the application — entry A.9); that annex is a copy of a document indicating the scientific name of BPA, as well as the registration number of one of the applicant’s members;
–        the identity (name) of the member of the applicant which drew up the data sheet for BPA, a copy of which is attached to the application as Annex A.11, in so far as the name of that company was mentioned in the description of Annex A.11 in the Schedule of Annexes (page 32 of that application — entry A.11);
–        the registration number for BPA mentioned in Annex A.9 to the application (see page 138 of the annexes to the application), which was given to the dossier of one of the applicant’s members when that company registered BPA before ECHA in accordance with Regulation No 1907/2006;
–        the identity (name) of the registrant mentioned in Annex A.10 to the application (page 140 of the annexes to the application); that annex is a copy of a safety report on BPA;
–        Annex A.11 to the application, in its entirety (pages 151 to 166 of the annexes to the application); that annex is a copy of a data sheet concerning BPA, drawn up by one of the applicant’s members.
Whether the application for confidential treatment is well founded
7        Under Article 144(5) and (7) of the Rules of Procedure, if an application to intervene is granted, the intervener is to receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication by order of the President, at the request of one of the main parties.
8        Those provisions lay 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 confidential documents or information may be withheld from disclosure (order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 6 and the case-law cited).
9        In that regard, it should be borne in mind, first, that the party who makes an application for confidential treatment is required to specify the documents or information covered and to duly state the reasons why they are claimed to be confidential. The Practice Rules for the implementation of the Rules of Procedure of the General Court (OJ 2015 L 152, p. 1) restate those requirements in point 221, according to which ‘[a]n application for confidential treatment must accurately identify the particulars or passages to be excluded and state the reasons for which each of those particulars or passages is regarded as confidential’ (order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 7 and the case-law cited).
10      Secondly, if an application for confidential treatment brought under Article 144(5) of the Rules of Procedure is contested, it must be examined whether each of the documents and pieces of information the confidentiality of which is disputed, and for which an application for confidential treatment has been made, is confidential (see order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 8 and the case-law cited).
11      As regards the confidential nature of the documents and information covered by the application for confidential treatment, a distinction must be drawn between, on the one hand, information which is by nature 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 is for the applicant to furnish. 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 secret or confidential by its very nature (see order of 21 September 2015, Deloitte Consulting v Commission, T‑688/13, not published, EU:T:2015:745, paragraphs 16 and 17 and the case-law cited).
12      Thirdly, where the President’s examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are confidential, he is required to go on to assess and weigh up the competing interests, for each document and piece of information (order of 30 January 2017, Syngenta Crop Protection and Others v Commission, T‑451/13, not published, EU:T:2017:112, paragraph 11 and the case-law cited).
13      In that respect, it must be borne in mind that, where confidential treatment is requested in the interests of a third party or in the interests of the requesting party, this assessment will lead the President of the formation of the Court hearing the case to weigh up, in respect of each document or piece of information, that party’s legitimate concern to prevent serious harm to his interests and the interveners’ equally legitimate concern that they should have the necessary information in order to be fully in a position to assert their rights and to state their case before the Court (see order of 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 64 and the case-law cited).
14      In any event, the requesting party 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 13 April 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:712, paragraph 64 and the case-law cited).
15      The request for confidential treatment submitted in the present case must be examined in the light of those principles.
16      In this case, the request for confidential treatment meets the requirement of accuracy mentioned in paragraph 9 above.
17      As to whether the elements for which confidential treatment is sought may be deemed to be secret or confidential, the following must be noted.
The identity of members of the applicant as registrants of BPA
18      The applicant requests the redaction of the identity (names) of its members which are involved in the marketing of BPA and which are mentioned in paragraphs 14, 34 and 35 of the application (see the first indent of paragraph 6 above). In that respect, it must be noted at the outset that those companies are registrants of a chemical substance for the purpose of Article 3(7) of Regulation No 1907/2006.
19      Further to the general considerations set out in paragraph 11 above, it must be noted that, in accordance with the case-law, information which is available, if not to the public at large, at least to specialist circles, information of which the interveners are already or may already become aware legitimately and information which is largely apparent, or may be deduced, from information of which they are aware or which will be disclosed to them cannot be regarded as either secret or confidential (see order of 22 February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraphs 56 and 57).
20      In the present case, ClientEarth indicates four names of companies which it believes are the members of the applicant for which the latter has requested confidential treatment. In order to demonstrate the accuracy of its claims regarding the identity of those companies, ClientEarth submits, first, that the names of registrants of substances are published on ECHA’s website. Secondly, ClientEarth indicates that the names of the companies which are members of ‘PlasticsEurope’s PC/BPA group’ are publicly available on the internet. The names of those companies may be deduced from information available on three websites.
21      It should be noted that ClientEarth correctly identified the names of the four members of the applicant in respect of which the latter sought confidential treatment. In that respect, it must be pointed out that ClientEarth obtained the information relating to the names of the four companies by examining sources of information in the public domain, namely three websites which it mentions in the written pleading setting out its observations on the application for confidential treatment. The four companies may be identified through a combined reading of the information available on those sites and of Annex A.8 to the application, in respect of which confidential treatment was not sought.
22      In that respect, the applicant merely argues that communicating the identity of the four companies to ClientEarth would give rise to a ‘substantial risk’, namely the ‘high probability’ that those companies would be targeted by public campaigns, which could damage their reputation among the public and their customers.
23      In that respect, it must be borne in mind that ClientEarth itself identified the companies in question in this instance. ClientEarth could therefore carry out the public campaigns alleged in paragraph 22 above, whether or not the Court redacts the names of those companies.
24      In those circumstances, the applicant’s argument relating to the risk that ClientEarth will launch a public campaign against them must be rejected as ineffective.
25      It must therefore be concluded that it is not necessary to grant confidential treatment to the identity of the four members of the applicant mentioned in paragraphs 14, 34 and 35 of the application.
The identity of a member of the applicant mentioned in the description of Annex A.9 in the Schedule of Annexes
26      The applicant also requests confidential treatment for the identity of its member mentioned in the description of Annex A.9 in the Schedule of Annexes (see the second indent in paragraph 6 above).
27      According to 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 (see order of 13 September 2017, Fortischem v Commission, T‑121/15, not published, EU:T:2017:648, paragraph 38 and the case-law cited).
28      In the present case, it must be noted that the applicant failed to redact, or chose not to redact, the name of that registrant in footnote No 36 of the non-confidential version of the application. That footnote expressly refers to Annex A.9 and to the Schedule of Annexes. In those circumstances, ClientEarth has only to read that footnote in order to deduce which company is mentioned in the description of Annex A.9 in the Schedule of Annexes. It follows that a decision of the Court ordering the redaction of that description would not prevent ClientEarth from deducing which of the four companies holds the registration number set out in Annex A.9 of the application. In addition, it must be emphasised that the applicant has not requested confidential treatment in respect of the identity of the registrant mentioned in footnote No 36 of the application.
29      Given that the applicant has itself disclosed the identity of the company mentioned in the description of Annex A.9 in the Schedule of Annexes to the intervener, that information has lost its confidentiality with respect to the intervener and no longer warrants specific protection by the Court (see, to that effect, order of 13 September 2017, Fortischem v Commission, T‑121/15, not published, EU:T:2017:648, paragraph 36).
30      In the light of the foregoing, the request for confidential treatment in relation to the identity of the member of the applicant mentioned in the description of Annex A.9 in the Schedule of Annexes must be rejected.
The registration number for BPA granted to one of the registrants of that substance
31      The applicant also requests confidential treatment for the registration number for BPA mentioned in the description of Annex A.9 to the application (see the fourth indent in paragraph 6 above). That number was granted to one of the members of the applicant when that company registered BPA before ECHA, in accordance with the requirements set out in Regulation No 1907/2006.
32      As regards the registration number for BPA, the applicant submits that ECHA publishes such numbers, but that it does not link individual numbers to the identity of the registrant. Thus, each supplier of a substance can prevent its competitors from linking its identity to its registration number. Next, the applicant submits, in essence, that disclosure of the registration number would alter the correct functioning of the internal market for chemical products. The fact that a link may be made between the identity of a registrant and its registration number could entail financial consequences for the registrant in question.
33      First, it must be noted that, in the registration process for a substance, a registration number contained in a data sheet may indeed be given confidential treatment by ECHA, within the meaning of Article 119(2)(d) of Regulation No 1907/2006, read in conjunction with Article 10(a)(xi) of that regulation.
34      However, the applicant has not shown that the company whose name ought, in the applicant’s view, to be redacted has submitted a reasoned request as provided for in Article 10(a)(xi) of Regulation No 1907/2006.
35      In addition, the applicant has not raised, either before ECHA or before the Court, a ground such as those referred to in Article 10(a)(xi). Invoking, in general terms, a possible alteration of the correct functioning of the internal market for chemical products, and a risk that the company concerned will suffer unspecified financial consequences (see paragraph 32 above), does not suffice in that respect.
36      Secondly, according to point (d) of the first sentence of Article 118(2) of Regulation No 1907/2006, the disclosure of links between a manufacturer or importer and his distributors or downstream users is normally deemed to undermine the protection of the commercial interests of the concerned person. Such information may be disclosed by ECHA only under the conditions laid down in the second sentence of Article 118(2) of that regulation.
37      The registration number of a dossier is indeed part of the collection of elements from which a link between a registrant and its distributors or downstream users may, in certain cases, be inferred. Accordingly, the possibility that such a number may fall within the category of confidential information cannot be ruled out from the outset.
38      Nevertheless, it must be held that the applicant has not adduced concrete and verifiable evidence capable of demonstrating that, in the present case, disclosure of the registration number in question would effectively reveal a commercial relationship between the company concerned and one of its business partners.
39      Neither the reference to a possible alteration of the functioning of the internal market for chemical products nor the invocation, in general terms, of a risk of unspecified financial consequences (see paragraph 32 above) are capable of supporting to the requisite legal standard the applicant’s request in that respect. That is especially so since, first, ClientEarth is not a competitor of the company concerned which could use that information to the latter’s detriment and, secondly, ClientEarth is required to use the information obtained in the present case solely in order to exercise its procedural rights and related rights.
40      In those circumstances, the request for confidential treatment concerning the identity of the member of the applicant mentioned in Annex A.9 to the application cannot be granted.
The identity of the author of the data sheet and the data sheet itself
41      The applicant requests that the name of the company which drew up the data sheet concerning BPA, which was added to the file as Annex A.11 to the application, be redacted, in so far as the name of that company is mentioned in the description of Annex A.11 in the Schedule of Annexes. In addition, in order to protect the identity of that member, the applicant requests confidential treatment for Annex A.11 in its entirety (see the third and sixth indents of paragraph 6 above).
42      In support of its request, the applicant refers to the fact that, although it contains the same type of information for all operators, the safety data sheet is not a standardised document and differs from company to company. Consequently, the identity of the company could easily be ascertained, even by merely entering certain sentences in that data sheet into the search engine Google. The data sheet is annexed to the application as an example and that should not allow ClientEarth to identify one ‘specific’ member of the applicant.
43      It is true that, as noted in paragraphs 18 to 25 above, in the present case, the identity of four members of the applicant cannot be deemed confidential as regards ClientEarth. However, ClientEarth cannot, solely on the basis of the information that may be disclosed to it in accordance with paragraph 25 above, infer which of those four members ‘specific[ally]’ is the author of the data sheet added to the file as Annex A.11 to the application.
44      In that respect, it must be noted that the fact that a person is the author of a document concerning chemical products in the context of Regulation No 1907/2006 and, in particular, of a data sheet drawn up inter alia on the basis of Articles 14 and 37 of that regulation and the identity of the author of that document constitute pieces of information which are, in general, known by a limited number of people. Moreover, it cannot be ruled out, at the outset, that such information may be used commercially.
45      Nevertheless, the applicant has not demonstrated how the disclosure of the name of the company which drew up the data sheet, a copy of which was added to the file as Annex A.11 to the application, could harm the commercial interests of that company. Neither the reference to a possible alteration of the functioning of the internal market nor the reference to a risk that the company concerned will suffer unspecified financial consequences is sufficient to support the argument that the name of the author of the data sheet in question falls within the category of confidential information.
46      In addition, point 220 of the Practice Rules for the implementation of the Rules of Procedure of the General Court (OJ 2015 L 152, p. 1) state that an ‘application for confidential treatment must be limited to what is strictly necessary and may not in any event cover the entirety of a procedural document; only exceptionally may it extend to the entirety of an annexed document. It should usually be possible to furnish a non-confidential version of a procedural document and items in which certain passages, words or figures have been deleted without affecting the interests it is sought to protect.’
47      It follows from the foregoing that the request for confidential treatment concerning the identity of the author of the data sheet added to the file as Annex A.11 to the application, must be rejected. This applies both as regards the name of the member of the applicant, in so far as that name is mentioned in the description of Annex A.11 in the Schedule of Annexes, and as regards the redaction of Annex A.11 to the application in its entirety.
The safety report on BPA and the identity of its author
48      Lastly, the applicant requests confidential treatment for the identity of the registrant mentioned in Annex A.10 to the application, a request which is also — and exclusively — based on the interests of the author of that report in having its identity redacted (see the fifth indent of paragraph 6 above). In that respect, it should be noted that Annex A.10 to the application consists of a safety report on BPA which was drafted by one of the members of the applicant.
49      It is true that a non-negligible amount of the information in a safety report may constitute confidential information, or even trade secrets. The fact that a person is the author of a safety report on a substance, or the knowledge of that person’s identity, may also be used commercially.
50      However, the applicant does not specify, on the basis of concrete and verifiable evidence, how the commercial interests of the company which drafted that report would be negatively affected by the disclosure of that company’s identity. Consequently, the applicant has not demonstrated the existence of confidential information, supported by the reasoning which it is required to furnish, for the purposes of the case-law cited in paragraph 11 above.
51      Accordingly, the request for confidential treatment of the identity of the author of the safety report on BPA, added to the file as Annex A.10 to the application, must also be rejected.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The application for confidential treatment is dismissed.
2.      The costs shall be reserved.
Luxembourg, 1 March 2018.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.