In Case T‑77/20

ORDER OF THE GENERAL COURT (Seventh Chamber)

4February 2022 (*)

(Confidentiality– Challenge by an intervener)

In Case T‑77/20,

Ascenza Agro, SA, established in Setúbal (Portugal),

Industrias Afrasa, SA, established in Paterna (Spain),

represented by K.Van Maldegem and P.Sellar, lawyers, and by V.McElwee, Solicitor,

applicants,

supported by

European Crop Care Association (ECCA), established in Overijse (Belgium), represented by S.Pappas and A.Pappas, lawyers,

intervener,

v

European Commission, represented by F.Castilla Contreras and A.Dawes, acting as Agents,

defendant,

supported by

Kingdom of Denmark, represented by V.Jørgensen, M.Wolff and L.Teilgård, acting as Agents,

by

French Republic, represented by A.-L.Desjonquères, W.Zemamta and E.Leclerc, acting as Agents,

and by

Health and Environment Alliance (HEAL), established in Brussels (Belgium), represented by A.Bailleux, lawyer,

interveners,

APPLICATION under Article263 TFEU for annulment of Commission Implementing Regulation (EU) 2020/17 of 10January 2020 concerning the non-renewal of the approval of the active substance chlorpyrifos-methyl, in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No540/2011 (OJ 2020 L7, p.11),

THE GENERAL COURT (Seventh Chamber),

composed of R.da Silva Passos, President, I.Reine and L.Truchot (Rapporteur), Judges,

Registrar: E.Coulon,

makes the following

Order

Procedure

1By application lodged at the Registry of the General Court on 10February 2020, Ascenza Agro, SA and Industrias Afrasa, SA (‘the applicants’) brought an action seeking the annulment of Commission Implementing Regulation (EU) 2020/17 of 10January 2020 concerning the non-renewal of the approval of the active substance chlorpyrifos-methyl, in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No540/2011 (OJ 2020 L7, p.11) (‘the contested regulation’).

2The Kingdom of Denmark, the French Republic, and Health and Environment Alliance (HEAL) sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

3European Crop Care Association (ECCA) sought leave to intervene in the present proceedings in support of the form of order sought by the applicants.

4The applicants and the Commission each applied for confidential treatment of certain information contained in the application initiating proceedings, and in the annexes to that application, to the defence and to the reply.

5By orders of the President of the Seventh Chamber of 26November 2020, all the interveners were granted leave to intervene. In accordance with Article144(2) of the Rules of Procedure of the General Court, those orders provisionally limited the communication of the procedural documents to the interveners to their non-confidential versions, pending any objections to the applications for confidential treatment.

6By letter of 29January 2021, ECCA raised objections to the Commission’s application for confidential treatment in so far as it concerns the entire plea relating to the vote of the Standing Committee on Plants, Animals, Food and Feed (‘the SCoPAFF’) set out in paragraphs124 to 129 of the application initiating proceedings (‘the application for confidential treatment at issue’).

7By letter of 24September 2021, the Court requested the Commission to inform the Court whether it intended to maintain the application for confidential treatment at issue, in view of the fact that some of the information in respect of which that application was submitted was set out in other documents in the file which had been brought to the attention of the interveners. The Court also requested the Commission to state the legal basis for that application in the event of the latter intending to maintain its application.

8By letter of 11October 2021, the Commission withdrew most of the application for confidential treatment at issue, with the exception of certain information set out in paragraph127 of the application initiating proceedings.

9By letter of 12November 2021, the Court in essence asked ECCA whether it maintained its objections, in view of the fact that the Commission had withdrawn most of the application for confidential treatment at issue.

10By letter of 25November 2021, ECCA stated that it was maintaining its objections in respect of the part of the application for confidential treatment at issue which the Commission had not withdrawn (‘the remainder of the application for confidential treatment at issue’).

The application for confidential treatment

11In accordance with Article144(5) and (7), and Article19(2) of the Rules of Procedure, the President of the Seventh Chamber referred the decision on the application for confidential treatment to the Chamber.

12Under Article144(5) of the Rules of Procedure, ‘the President shall decide on the application to intervene as soon as possible, by order, and, where applicable, on the communication to the intervener of information which it is claimed is confidential’.

13In addition, Article144(7) of those rules provides 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 paragraph5’.

14That provision thus lays down the principle that interveners are to receive all the procedural documents 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 28January 2016, BSCA v Commission, T‑818/14, not published, EU:T:2016:75, paragraph22).

15In that regard, the party who makes an application for confidential treatment has the task of specifying the documents or information covered and of duly stating the reasons for which they are confidential (order of 8October 2009, Whirlpool Europe v Council, T‑314/06, not published, EU:T:2009:394, paragraph24).

16Furthermore, where a party makes an application for confidential treatment, the Court is to give a decision solely on the confidentiality of the documents and information in respect of which that application is disputed (order of 22February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph36).

17The intervener’s opposition to the confidentiality sought must relate to specific material which has been redacted in the procedural documents and must state the reasons for which the intervener takes the view that confidentiality with regard to that information should be refused. Therefore, an application for confidential treatment must be upheld in so far as it concerns material which has not been disputed by the intervener, or which has not been disputed expressly and in detail(see order of 5October 2012, Orange v Commission, T‑258/10, EU:T:2012:524, paragraph21 and the case-law cited).

18Furthermore, in so far as an application for confidential treatment is disputed, the Court has the task, first of all, of examining whether each of the documents and information the confidentiality of which is disputed and in respect of which an application for confidential treatment has been made is secret or confidential. (order of 22February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph38).

19Where its examination leads it to conclude that some of the documents and information the confidentiality of which is disputed are secret or confidential, the Court then assesses and weighs up the competing interests, for each document and piece of information (order of 22February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph42).

20Thus, where confidential treatment is requested in the interests of the applicant, the Court weighs in the balance, for each document or piece of information, the applicant’s legitimate concern to prevent serious harm to his or her interests and the equally legitimate concern of the interveners that they should have the information necessary for exercising their procedural rights (order of 22February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph44).

21Where confidential treatment is requested in the interests of a person not party to the dispute, this assessment leads the Court to weigh in the balance, for each document or piece of information, the interest of that person that the secret or confidential documents or information which concern him or her should be protected and the interest of the interveners in having them for the purpose of exercising their procedural rights (order of 22February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph45).

22In 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 he or she has decided to place on the file appear necessary for the exercise of the interveners’ procedural rights and, consequently, must be disclosed to them (order of 22February 2005, Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph46).

23It is in the light of the principles referred to in paragraphs14 to 22 above that the applications for confidential treatment submitted in the present case must be examined.

The information in respect of which confidential treatment has been requested and to which no objection has been raised

24In accordance with the principles referred to in paragraphs16 and 17 above, the applications for confidential treatment submitted by the applicants and the Commission and to which the interveners have not raised any objection must be granted.

The information in respect of which confidential treatment has been requested and to which an objection has been raised

25It must be noted that the remainder of the application for confidential treatment at issue concerns paragraph127 of the application initiating proceedings. In that paragraph, the following is stated:

‘The [contested regulation] was adopted following the examination committee procedure, requiring a qualified majority vote within the SCoPAFF. Because of the impending exit of the UK from the EU (“Brexit”), the UK representative did not participate in the 6December 2019 SCoPAFF meeting and, instead, gave a proxy vote to Finland. The vote cast by the Finnish proxy holder for the UK was to vote in support of the [contested regulation], while abstaining to vote at the same meeting on the non-renewal proposal for Chlorpyrifos, a substance presenting clear human health concerns (Annex A43). Questioned on why the UK voted against the renewal of CHP Methyl, while abstaining to vote on Chlorpyrifos, the UK unambiguously clarified that, because of Brexit, it had adopted a policy of supporting the Defendant in situations where its abstention or negative vote would lead to a blocking minority for any proposal the Defendant submitted to SCoPAFF (Annex A43). That was the case here, as two Member States voted against the [contested regulation] ([confidential] and [confidential]) and many Member States abstained during the vote ([confidential]). That pattern of voting meant that, without the UK’s positive vote, the [contested regulation] would not have been adopted.’

26It is apparent from the extract cited in paragraph25 above that the remainder of the application for confidential treatment at issue is now limited to the names of the Member States which voted against or abstained from voting on the draft contested regulation.

27In its application for confidential treatment, the Commission merely stated that that application concerned how the Member States voted and was based on the protection of the decision-making process.

28ECCA, in its letter of 29January 2021 (see paragraph6 above), stated, first, that how each of the Member States voted within the SCoPAFF was not confidential and that disclosure of how they voted would not undermine the decision-making process. It added that the Commission had not specified the legal basis justifying the confidentiality of how the Member States voted. It stated that Regulation (EU) No182/2011 of the European Parliament and of the Council of 16February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L55, p.13) did not confer any legal basis on the Commission’s application for confidential treatment. It also submitted that the fact that the Standard Rules of Procedure for Committees (OJ 2011 C206, p.11) could constitute such a legal basis was not decisive because, according to a position adopted by the European Ombudsman, that merely reflected a choice made by the Commission as to how to organise the work of committees.

29Secondly, ECCA relied on several provisions of the FEU Treaty, in particular Article15(2), according to which the European Parliament, and the Council when considering and voting on a draft legislative act, are to meet in public. EECA stated that, although that provision of the FEU Treaty concerned the legislative procedure, the same principle of transparency, which is necessary in a democratic system, must apply to the review by the Member States of the Commission’s exercise of implementing powers, unless a derogation is provided for in Regulation No182/2011.

30Thirdly, ECCA relied on Article41 of the Charter of Fundamental Rights of the European Union.

31Furthermore, ECCA stated that, in order properly to submit its observations in the context of the fifth plea in law relied on in the application initiating proceedings, it had to be in a position to assess whether a blocking minority situation could have occurred in respect of the vote on the draft contested regulation at the meeting of 6December 2019. There is nothing, at this stage of the proceedings, definitively to support the conclusion that knowledge of the names of the Member States which abstained or the names of those which voted against the draft regulation would not be necessary for the exercise of ECCA’s procedural rights.

32The Commission, in its reply to the letter of 24September 2021 (see paragraph7 above), merely referred to Article10(2) of the Standard Rules of Procedure for Committees.

33It is thus apparent that the Commission did not respond to all the objections raised by ECCA, in particular those relating to the adverse effect that its application for confidential treatment would have on the exercise of ECCA’s procedural rights.

34In accordance with the case-law cited in paragraphs19 to 22 above, it is for the Court to assess and weigh up the competing interests, for each document and piece of information the confidentiality of which is disputed.

35In the present case, even if the information set out in the remainder of the application for confidential treatment at issue were confidential, it must be concluded that, in the light of elements referred to in paragraphs27 to 33 above and given also the adversarial and public nature of judicial proceedings and the fact that that information appears necessary for the exercise of ECCA’s procedural rights, that information must be disclosed to ECCA.

36In the light of the foregoing, pursuant to Article144(7) of the Rules of Procedure, the remainder of the application for confidential treatment at issue must be rejected in so far as it concerns ECCA.

37In respect of the remaining matters, the applications for confidential treatment submitted by the applicants and by the Commission must be granted.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby orders:

1.The application for confidential treatment submitted by the European Commission vis-à-vis European Crop Care Association (ECCA), in so far as it concerns paragraph127 of the application initiating proceedings, is rejected.

2.The remainder of the Commission’s application for confidential treatment, and the application for confidential treatment submitted by Ascenza Agro, SA and Industrias Afrasa, SA are granted.

3.A non-confidential version of the application initiating proceedings, complying with points1 and 2 of the operative part of this order, shall be communicated by the Commission, and by Ascenza Agro and Industrias Afrasa, by the deadline indicated by the Registrar, and the latter shall ensure that it is served on ECCA.

4.The costs are reserved.

Luxembourg, 4February 2022.

*Language of the case: English.