1

By application lodged at the Registry of the General Court on 1 March 2019, the applicants, Bulgarian Energy Holding EAD, Bulgartransgaz EAD and Bulgargaz EAD, brought an action seeking that Commission Decision C(2018) 8806 final of 17 December 2018 relating to a proceeding under Article 102 TFEU (Case AT.39849 – BEH Gas), in which it was found that they had abused a dominant position on several markets and a fine was for that reason imposed on them (‘the contested decision’), be, principally, annulled and, in the alternative, varied.

2

In support of their action, the applicants have raised seven pleas in law. By their first plea, the applicants submit that, in the administrative procedure leading to the adoption of the contested decision, the European Commission infringed in several respects the principle of good administration and their rights of defence. The applicants claim, in essence, that they did not have access, or that they did not have sufficient access, to documents which, in their view, contain exculpatory evidence.

3

By order of 26 May 2021, the General Court (Fourth Chamber), granting a request set out in the application, ordered the Commission, in accordance with Article 91(b) of its Rules of Procedure, and regard being had to the safeguards provided for in Article 103(1) thereof, to produce the detailed minutes of eight meetings held by the Commission with Overgas Inc. (‘the detailed minutes’), Overgas’ confidentiality claims relating to those minutes, the confidential versions of Overgas’ submissions following those eight meetings (‘the follow-up submissions’) 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’). The Commission complied with that request on 17 June 2021 by placing on the file the annexes numbered X.1 to X.16.

4

In accordance with Article 103(1) and (2) of the Rules of Procedure, where it is necessary for the General Court to examine, on the basis of the matters of law and of fact relied on by a main party, the confidentiality, vis-à-vis the other main party, of certain information or material produced before it following a measure of inquiry referred to in Article 91(b) of the Rules of Procedure, it is for the Court to ascertain whether that information or material is relevant in order for it to rule in the case and whether it is confidential.

5

Next, in accordance with Article 103(2) of the Rules of Procedure, where the General Court concludes in the examination provided for in Article 103(1) of those rules that certain information or material produced before it is relevant in order for it to rule in the case and is confidential vis-à-vis the other main party, it is to weigh that confidentiality against the requirements linked to the right to effective judicial protection, particularly the adversarial principle.

6

In the present case, during the proceeding under Article 102 TFEU, information or material which Overgas had submitted to the Commission was claimed to be confidential vis-à-vis the applicants. It is on that basis that the applicants allege that their rights of defence were infringed, as is apparent from paragraph 2 above. The documents in question are known both to the Commission, a main party to the present proceedings, and to Overgas, an intervener in support of the Commission. By contrast, the applicants, who are adversely affected by the contested decision, have to defend their interests vis-à-vis the Commission and Overgas without having knowledge of that information in the administrative file, despite having the status of main parties before the Court.

7

In such circumstances, the adversarial principle and the principle of equality of arms, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, observance of which is ensured by the EU Courts, require that, where a contested act is subject to judicial review, the applicants are given the widest possible access to the file in order to enable them to put forward all available and relevant arguments in support of their action.

8

It also follows, in such circumstances, that, in the analysis provided for under Article 103(1) and (2) of the Rules of Procedure, it must first of all be examined whether the information or material produced before the General Court following a measure of inquiry is confidential and, if it is not, to communicate it to the applicants. By contrast, if that information or material is confidential, it is for the Court to then carry out a two-fold examination, also as regards the question whether the particulars at issue are relevant in order for it to rule in the case.

9

It should be borne in mind, in this regard, that the confidential treatment of an item of information in the file is not justified in the case, for example, of information which is already public or to which the general public or certain specialist circles have access, information featuring also in other passages or documents in the case file in respect of which the party seeking to preserve the confidential nature of the information in question neglected to make a request to that effect, information which is not sufficiently specific or precise to reveal confidential data, or information which is largely apparent or may be deduced from other information which is legitimately available to the interested parties (see order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 20 and the case-law cited).

10

Likewise, it must be recalled at this point that it is settled case-law that information which was confidential, but which is at least five years old, must for that reason be considered historical and be communicated to the other parties, unless, exceptionally, in spite of its age, that information still constitutes essential secrets, such as industrial or commercial secrets, disclosure of which would harm a party or a third party (see, to that effect, order of 11 April 2019, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2019:250, paragraph 19 and the case-law cited).

11

Lastly, it must be borne in mind that, in accordance with Article 103(3) of the Rules of Procedure, after having weighed up the matters referred to in Article 103(2) thereof, as set out in paragraph 5 above, the General Court may decide to bring the confidential information or material to the attention of the other main party, making its disclosure subject, if necessary, to specific undertakings, or it may decide not to communicate such information or material, specifying, by reasoned order, the procedures enabling the other main party, to the greatest extent possible, to make his or her views known, including ordering the production of a non-confidential version or summary of the information or material.

12

On 18 January 2018, Overgas informed the Commission, by email, that it took the view that the detailed minutes should be treated as confidential. Overgas reiterated and expanded on that claim on 20 February 2018.

13

It is apparent from Overgas’ letter of 20 February 2018 to the Commission that Overgas feared, in essence, that the disclosure of certain particulars in the detailed minutes could have significant negative economic, administrative or judicial consequences.

14

Accordingly, in the particular context of the case, Overgas’ reasons given to justify the confidential treatment of the detailed minutes are themselves sensitive and must therefore be regarded as confidential.

15

Nevertheless, the reasons put forward by Overgas in support of its claim for confidential treatment to the Commission are relevant for the purpose of ruling in the case. In the part of their first plea relating to the fact that the Commission had not given them access to the detailed minutes, the applicants submit, in particular, that they were not aware of the reasons given by Overgas to justify the confidential treatment of those minutes, with the result that that complaint raises the question whether the Commission could legitimately grant Overgas’ claims for confidential treatment without infringing the applicants’ rights of defence.

16

Thus, the Court is required to weigh, as referred to in Article 103(2) of the Rules of Procedure, the confidentiality of the claims in question against the requirements of the right to effective judicial protection, particularly the adversarial principle.

17

In that regard, in the light of, first, what is at stake in the case, and second, the fact that it cannot be ruled out that disclosure of the reasons given to justify the confidential treatment of the detailed minutes combined with the disclosure of certain particulars contained therein could have significant economic, administrative or judicial consequences, it is appropriate, pursuant to Article 103(3) of the Rules of Procedure, which makes it possible to reconcile the conflicting interests of the parties, inter alia by producing a non-confidential version of the information or material containing the essential content thereof, to order the Commission to lodge the claim of 18 January 2018, numbered X.9(1), provided that it redacts the passage between the words ‘additional repercussions’ and the words ‘in case the non-confidential content’.

18

As a preliminary point, it must be noted that, during the administrative procedure, the Commission organised, in total, eight meetings with Overgas. Those meetings took place on 13 October 2010, 13 January, 17 March and 15 December 2011, 17 June 2013, 13 October 2015, and 17 March and 20 October 2016.

19

Furthermore, it is apparent from the file that, for each of the meetings organised with Overgas, the Commission drew up, first, detailed minutes, and second, short notes.

20

It must also be observed that the applicants obtained the short notes of the eight meetings and that, on 28 June 2018, the applicants’ external representatives had access to the detailed minutes in the context of a data room procedure. According to that procedure, provided for in paragraph 98 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), a party’s external representatives may have access to confidential documents, under the supervision of a Commission official and in a room at the Commission’s premises. The representatives may make use of the information made available to them in the room for the purpose of defending their client, but may not disclose any confidential information to that client.

21

In the context of the data room procedure, the applicants’ external representatives drew up a confidential version of the information report in which they, inter alia, expressed their views on the information contained in the detailed minutes. That report constitutes the annex numbered X.16.

22

The applicants’ external representatives also drew up a non-confidential version of that report with the Commission’s approval and communicated it to the applicants.

23

However, the applicants submit that that non-confidential version was devoid of value for their defence, whereas the detailed minutes, examined in the data room, contained information that was not only non-confidential but also contained exculpatory evidence.

24

Consequently, in their first plea, the applicants submit that the Commission could not, by means of the data room procedure, prevent them from personally acquainting themselves with the detailed minutes and that their rights of defence have thereby been infringed.

25

In accordance with paragraph 8 above, it is necessary to examine whether the information report contains particulars which must in fact be treated as confidential.

26

It must be observed at the outset in that regard that the statements made by the applicants’ external representatives, on pages 396 to 398 and 400 to 403 of the consecutive numbering, concerning the particulars they regarded as exculpatory, do not contain, as such, confidential information which would preclude their disclosure.

27

Next, the following particulars, in any event, are not confidential or, as the case may be, are no longer confidential, and there is therefore nothing precluding their disclosure:

28

By contrast, the following particulars are confidential and it is therefore necessary, as is apparent from paragraph 8 above, to conduct an analysis also as to whether they are relevant for the purpose of ruling in the case:

29

In the light of all of the foregoing, in order to enable the applicants themselves, to the greatest extent possible, to make their views known, it is necessary to order the Commission to lodge a new version of the information report, annex numbered X.16, subject to the redaction of:

30

As has already been stated in paragraphs 23 and 24 above, the applicants submit, in their first plea in law, that the detailed minutes contain information that was not only non-confidential but also contained exculpatory evidence.

31

However, it follows from paragraphs 13 to 17 above that Overgas was entitled to claim that disclosure of certain particulars in the detailed minutes could have serious consequences. Consequently, those minutes, taken as a whole, must, in principle, be regarded as confidential.

32

Furthermore, it has been concluded in paragraph 29 above that it is appropriate to grant the applicants access to the information report, subject to the redaction of two short items of information which are irrelevant for the purpose of ruling in the case. It must therefore be borne in mind that, in that report, the applicants’ external representatives described the content of the detailed minutes and identified the particulars therein which, according to them, are exculpatory.

33

Consequently, in view of the fact that Article 103(3) of the Rules of Procedure expressly envisages the lodging of a non-confidential summary of the documents at issue and the fact that the information report can be likened to such a summary, including with the redactions listed in paragraph 29 above, an appropriate balancing of the interests in question will be achieved by taking the view that there is no need to disclose to the applicants the detailed minutes themselves, corresponding to Annexes X.1 to X.8.

34

Overgas drew up and lodged follow-up submissions, in which it expanded on the arguments which it had raised during its meetings with the Commission.

35

The applicants had access only to non-confidential versions of most of the follow-up submissions.

36

Therefore, in accordance with paragraph 8 above, it is necessary to examine whether the follow-up submissions did in fact contain particulars that are confidential, next, to ascertain, as the case may, whether they are relevant for the purpose of ruling in the case, and lastly, to weigh their confidentiality against the requirements linked to the right to effective judicial protection, particularly the adversarial principle, in accordance with paragraph 11 above.

37

As regards the follow-up submissions on the meeting of 13 October 2010, constituting the annex numbered X.10, it should be noted that the following particulars are not confidential or, in any event, are no longer confidential:

38

By contrast, following the examination referred to in paragraph 8 above, it is apparent that, while the following particulars in the annex numbered X.10 are still confidential, they are irrelevant for the purpose of ruling in the case:

39

In the light of all of the foregoing, in order to enable the applicants themselves, to the greatest extent possible, to make their views known, it is therefore necessary to order the Commission to lodge a new version of the follow-up submissions on the meeting of 13 October 2010, constituting the annex numbered X.10, subject to preserving the redactions:

40

As regards the follow-up submissions on the meeting of 13 January 2011, constituting the annex numbered X.11, the following particulars are not confidential or, in any event, are no longer confidential:

41

By contrast, in the light of the examination referred to in paragraph 8 above, it appears that the passages redacted on page 171 of the consecutive numbering in the bullet point that begins with the words ‘Overgas recently also sent a letter’ and the passage redacted in the paragraph on page 172 of that numbering that begins with the words ‘already during our meeting on January 13, 2011’ are confidential, inasmuch as they can be linked to the serious consequences which Overgas fears in the event that the detailed minutes, on which the follow-up submissions expand, should be disclosed. Nevertheless, the content of those passages is irrelevant for the purpose of ruling in the case, inasmuch as it does not contain any assessment of the applicants’ conduct.

42

In the light of the foregoing, it is therefore appropriate to order the Commission to lodge a new version of the follow-up submissions on the meeting of 13 January 2011, numbered X.11, subject to preserving the confidentiality, on page 171 of the consecutive numbering, of the redacted passages in the bullet point that begins with the words ‘Overgas recently also sent a letter’ and, on page 172 of that numbering, of the passage redacted in the paragraph that begins with the words ‘already during our meeting on January 13, 2011’.

43

As regards the follow-up submissions on the meeting of 17 March 2011, constituting the annex numbered X.12, it must be noted that the following particulars are not confidential:

44

By contrast, the following must be considered to be confidential:

45

In the light of the foregoing, it is therefore appropriate to order the Commission to lodge a new version of the follow-up submissions on the meeting of 17 March 2011, numbered X.12, subject to preserving the redaction of the names of the third-party companies cited on page 193 of the consecutive numbering and of the tables on pages 201 and 202 of that numbering.

46

As regards the follow-up submissions on the meeting of 15 December 2011, constituting the annex numbered X.13, it should be noted that the following particulars are not confidential:

47

By contrast, the following must be considered to be confidential:

However, that information is irrelevant for the purpose of ruling in the case, in so far as it is sufficient for the applicants to know that it concerns undertakings active in the gas sector or an end user, as is apparent from the context.

48

Accordingly, it is appropriate to order the Commission to lodge a new version of the follow-up submissions on the meeting of 15 December 2011, numbered X.13, subject to preserving the redaction of the names of the third-party companies cited on pages 205 and 206 of the consecutive numbering and of the passage which describes one of them in the second bullet point on page 205 of that numbering.

49

As regards the follow-up submissions on the meeting of 17 June 2013, constituting the annex numbered X.14, it must be stated that the allegedly non-confidential version which was communicated to the applicants during the administrative procedure did not contain any redactions.

50

Accordingly, since the applicants have already had access to that annex as such, their request seeking disclosure of the follow-up submissions is devoid of purpose as regards that annex and there is no need to order that it be disclosed again.

51

As regards the follow-up submissions on the meeting of 20 October 2016, constituting the annex numbered X.15, it must be noted that nothing has been communicated to the applicants, even in a non-confidential version.

52

However, it is sufficient to note that those submissions concern the development of the gas market in Bulgaria and the alleged attitude of Bulgargaz and Bulgartransgaz at the time when the submissions were drawn up, on 16 November 2016, that is to say, after the end of the infringement period on 1 January 2015. More specifically, those submissions by Overgas concerned practices connected, in particular, with prices and the lack of development of the infrastructure which Overgas considered to be necessary for the development of competition in Bulgaria.

53

In view of the commercial relations between Overgas and the applicants, the follow-up submissions on the meeting of 20 October 2016, which refer to developments of the Bulgarian market that were alleged to still be necessary and which date back only to 2016, can be considered to be still commercially sensitive and therefore confidential.

54

That being so, the Commission rightly states, in its response to the measure of inquiry of 17 June 2021, that the complaints set out by Overgas in the follow-up submissions of 16 November 2016 were not taken into account in the contested decision.

55

It is true that the Commission referred to events which occurred in 2016, noting, in the contested decision, that the Romanian pipeline 1 was the only viable route for bringing gas to Bulgaria, at least until April 2016, and that the 2005 commercial agreement granting Bulgargaz exclusive use of that pipeline had been terminated on 30 September 2016. However, it must be pointed out that those two items of information merely refer to the state of the market before the meeting of 20 October 2016, to which the follow-up submissions of 16 November 2016 relate, and not to developments that would still be necessary. In addition, the Commission found that Overgas had already obtained access to that infrastructure on 1 January 2015, the date which it set as the end of the infringement, including for practices relating to the Bulgarian transmission network.

56

As regards the Chiren storage facility, the Commission established 23 September 2014 as the date on which all unlawful conduct ended as a result of access being granted to a third-party operator.

57

On those grounds, Annex X.15 is irrelevant for the purpose of ruling in the case.

58

In the light of the conclusions set out in paragraphs 17, 29, 33, 39, 42, 45, 48, 50 and 57 above, it is necessary to:

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby orders: