Case T‑136/19

Bulgarian Energy Holding EAD and Others

v

European Commission

 Order of the General Court (Fourth Chamber, Extended Composition), 14 March 2022

(Measure of inquiry – Article 103(3) of the Rules of Procedure – Production of non-confidential versions of documents)

1.      Judicial proceedings – Measures of inquiry – Production of documents submitted to the Commission in the context of proceedings under Article 102 TFEU – Application for confidentiality – Criteria for assessment

(Rules of Procedure of the General Court, Arts 91(b), 92(3) and 103)

(see paragraphs 4, 5, 8-10)

2.      EU law – Principles – Right to effective judicial protection – Scope – Principle of equality of arms and adversarial principle – Included – Compliance in the context of judicial proceedings – Scope – Determination of the treatment of confidential documents produced following a measure of inquiry – Taking into account of the relevance of items of information in order to rule in the case – Plea in law alleging infringement of the rights of the defence arising from the confidential treatment of those documents in the context of proceedings under Article 102 TFEU

(Arts 102 and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the General Court, Arts 91(b), 92(3) and 103(3))

(see paragraphs 6-8)

3.      Judicial proceedings – Treatment of cases before the General Court – Procedural rules applicable to confidential information or material produced following a measure of inquiry – Weighing of confidentiality against the requirements of the right to effective judicial protection – Determination of information to be communicated to the other party – Disclosure of the confidential version of a summary report drawn up by the representatives of that party – Access to confidential documents made subject to a non-disclosure undertaking during the administrative procedure – Circumstance having no decisive effect

(Art. 102 TFEU; Rules of Procedure of the General Court, Arts 91(b), 92(3) and 103; Council Regulation No 1/2003, Art. 27(1) and (2); Commission notice 2011/C 308/06, paragraph 98)

(see paragraphs 11, 20, 32, 33)

Résumé

By decision of 17 December 2018, (1) the European Commission found that Bulgarian Energy Holding EAD (‘BEH’), its gas supply subsidiary Bulgargaz EAD (‘Bulgargaz’) and its gas infrastructure subsidiary Bulgartransgaz EAD (‘Bulgartransgaz’) had abused a dominant position on the market for the supply of gas in Bulgaria consisting, between 30 July 2010 and 1 January 2015, in a refusal to grant third parties access to three gas infrastructures. Consequently, it imposed a fine on them.

By application lodged on 1 March 2019, BEH and its two subsidiaries (‘the applicants’) lodged an action with the Court seeking, principally, annulment of that decision and, in the alternative, a reduction of the amount of the fine imposed on them.

By order of 18 November 2019, the company Overgas Inc., which claims to be BEH’s main competitor on the market for the supply of natural gas in Bulgaria, was granted leave to intervene in support of the form of order sought by the Commission. In that regard, it was stated, first, that its position on the relevant market depends on access to BEH’s products and services, and second, that it had participated, as an interested third person, in the administrative procedure that led to the contested decision.

In support of their action against the contested decision, the applicants raised, in particular, a plea in law alleging that the Commission had infringed the principle of good administration and their rights of defence. In that regard, they state, in essence, that, in the context of the administrative procedure which led to the adoption of the contested decision, the Commission failed to give them access or, at least, sufficient access to documents which, in their view, contain exculpatory evidence. In the present case, those documents are the detailed minutes of eight meetings held by the Commission with Overgas, Overgas’ confidentiality claims relating to those minutes, the confidential versions of Overgas’ submissions following those eight meetings and the confidential version of the report drawn up by the applicants’ representatives in the context of a data room procedure on 28 June 2018 (‘the information report’).

By an order for measures of inquiry of 26 May 2021 granting a request made by the applicants to that end, the Court ordered the Commission to produce the documents at issue, stating that those documents would not be sent to the applicants at that stage. The Commission complied with that request on 17 June 2021 by lodging the documents at issue, while stating that some elements set out in those documents were confidential vis-à-vis the applicants.

By the present order, at the end of the in-depth analysis required in such circumstances by Article 103 of its Rules of Procedure, the General Court rules on the confidentiality of the elements referred to by the Commission in order to determine precisely the material and information to be communicated to the applicants. In that regard, it orders the Commission to lodge non-confidential versions, vis-à-vis the applicants, of various documents among those initially lodged, in which only the elements identified by the Court as having or preserving a confidential nature are redacted.

Findings of the Court

Article 103 of the Rules of Procedure of the General Court determines the treatment applicable to information and material produced following a measure of inquiry, where the party complying with that measure has requested confidential treatment, vis-à-vis the other main party, of some of the information set out therein. According to paragraph 1 of that article, in such a situation, it is for the Court to ascertain whether the information or material concerned is relevant in order for it to rule in the case and whether it is confidential. If, following that examination, it appears that some of the information or material concerned meets those two criteria, it is then for the Court to weigh that confidentiality against the requirements of the right to effective judicial protection, particularly the adversarial principle, in accordance with paragraph 2 of that article.

In that regard, the Court takes the view, at the outset, that the requirements relating to the right to effective judicial protection, reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union, are all the more significant in circumstances such as those in the present case. The documents at issue are those, placed in the administrative file after having been submitted to the Commission by Overgas, to which the applicants had previously been refused access, for reasons of confidentiality, during the administrative procedure. In those circumstances, the applicants have, in the context of their action relying, in particular, on a plea in law alleging infringement of their rights of defence, to defend their interests without having knowledge of those documents, unlike the other parties, namely the Commission and Overgas. In the light of the foregoing, the Court relies on the prerogatives conferred on it, as an EU Court, with a view to ensuring full compliance with the requirements arising, in particular, from the adversarial principle and the principle of equality of arms, in order to take the view that, in such circumstances, it is for the Court itself to give the applicants the widest possible access to the file, such as to enable them to put forward all available and relevant arguments in support of their action.

Applying the principle thus formulated in the context of the decision which it is called upon to give under Article 103(3) of the Rules of Procedure, the Court states that it is necessary to communicate all elements of documents produced following a measure of inquiry the analysis of which does not establish their confidential nature. It recalls, in this regard, that that is the case in particular where the information concerned is public or readily available by legal means, or may even be deduced from information of the same nature, including where it is apparent from other documents in the case file which have not given rise to any confidentiality requests to that end. Likewise, it is apparent from settled case-law that the confidentiality of information cannot, in principle, last longer than five years, other than in exceptional circumstances.

As regards, by contrast, documents that are confidential, the Court rules that it is for it at that stage to examine whether those documents are relevant in order to rule in the case.

In that regard, the Court recalls the margin of discretion conferred on it by Article 103 of the Rules of Procedure as regards confidential information or material, for the purpose of preserving, to the greatest extent possible, the procedural rights of the party vis-à-vis which confidentiality is claimed. Thus, if the interests protected by confidentiality do not allow the disclosure of the information concerned, even if accompanied by appropriate undertakings, the lack of disclosure must be accompanied by specifications relating to the procedures for protecting the other party’s procedural safeguards.

Applying the principles previously set out, the Court then proceeds with the detailed and individual analysis of each element described by the Commission as being confidential vis-à-vis the applicants when it lodged the documents referred to in the measure of inquiry adopted to that end on 26 May 2021, so as to determine the precise content of the information or material to be communicated to the applicants, to the extent required in order to safeguard their procedural rights.

Among the documents regarded, at the end of that analysis, as including elements that are relevant for a ruling in the case, and, accordingly, as being eligible to be placed on the file, the Court orders the Commission to lodge a non-confidential version, intended to be subsequently communicated to the applicants, in accordance with the precise and exhaustive instructions relating to the redaction of information the confidentiality of which it remains necessary to preserve, having regard to the protected interests. In that context, seeking to ensure compliance with the adversarial principle and with the principle of equality of arms inherent in the right to effective judicial protection, the Court decides, in particular, to communicate to the applicants, subject to the redaction of limited passages, the confidential information report that their lawyers had drawn up after receiving access to the confidential information in the detailed minutes, even though the granting of that access had been conditional on those lawyers undertaking not to disclose that information to the applicants. By contrast, the Court decides not to communicate to the applicants the precise reason why Overgas insisted that some information not be provided to them, in the light of the serious consequences that such disclosure could have in the present case for that party.

1      Commission Decision C(2018) 8806 final of 17 December 2018 relating to a proceeding under Article 102 TFEU (Case AT.39849 – BEH Gas) (‘the contested decision’).