C-236/81
ECLI:EU:C:1982:115
- Súd
- Súdny dvor Európskej únie
- IČS
- 61981CO0236
- Zdroj
- eur-lex.europa.eu ↗
ORDER OF T H E COURT 30 MARCH 1982'
Celanese Chemical Company Inc. v Council and Commission of the European Communities
Case 236/81
Procedure — Documents placed be/ore the Court relating to the business secrets o/under- takings — Confidential treatment
In Case 236/81
CELANESE CHEMICAL COMPANY INC., whose registered office is in Dallas, United States of America, represented by Willy Alexander and Clemens Ebbo Marie Van Nispen tot Sevenaer, Advocates, of The Hague, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34 B Rue Philippe-II, applicant, v
COUNCIL OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Gijs Peeters, acting as Agent, and COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Peter Gilsdorf, acting as Agent,
The Agents of the Council and of the Commission being assisted by Jeremy Lever QC, of Gray's Inn, and Robin Griffith, Solicitor, with an address for service in Luxembourg at the office of H.J. Pabbruwe, European Investment Bank, ICC Boulevard Konrad Adenauer, defendants, 1 — Language of the Case: English.
ORDER OF 31. 3. 1982 — CASE 236/81
APPLICATION for a declaration that the decision, contained in Council Regulation N o 1282/81 of 12 May 1981, to impose an anti-dumping duty on vinyl acetate monomer originating in the United States of America and imported by the applicant company is void,
T H E COURT,
composed of: J. Mertens de Wilmars, President, G. Bosco A Touffa.t and O Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A.O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,
Advocate General: S. Rozès Registrar: P. Heim
with regard to the request that certain data and documents produced by the applicant shall be treated as confidential,
makes the following
ORDER
Facts and Issues
On 26 August 1981 the Celanese Chemical Company Inc., whose registered office is in Dallas, USA, (hereinafter referred to as "Celanese") lodged an application for a declaration that a provision included m Counc.l Regulauon No P 8 2 / 8 1 of 12 May 1981 (Offic.al Journal L 129, p. 1), imposing a definitive anti-dumping dutv of 12.94<>/o on vinyl acetate monomer imported bv the applicant is void. On the same day the applicant lodged a second version of the same application, including a series of details and annexes which it claimed should be treated as confidential.
CELANESE v COUNCIL AND COMMISSION
2 By a letter of 10 September 1981 the Registrar of the Court informed Celanese that the Court could not accept the lodging of two different versions of the same application and consequently returned the confidential version to Celanese.
3 On 30 September 1981 Celanese lodged an additional application in which it set out the reasons for which it claimed confidential treatment for certain data and documents. On 22 October 1981 the Council and the Commission,- the defendants, responded to that application. They stated that they were not opposed in principle to the request for confidential treatment of certain aspeas of the action but that they had reservations with regard to the extensive application of the confidentiality claimed by Celanese.
4 Subsequently Celanese had discussions with the defendants with a view to agreeing with them as to the scope of the confidential treatment claimed. By a telex message of 20 January 1982 Celanese informed the Court that an agreement had been reached in this respect and it consequently sent to the Court the documents covered by that agreement.
Í On 5 February 1982 the parties were heard by the Judge-Rapporteur in the presence of the Advocate General.
6 It appeared from that hearing and from the documents produced that the confidential treatment claimed concerned five categories of information which Celanese regarded as forming a part of its business secrets and which concern: sales prices, the structure of production costs, the identity of certain customers, the quantities sold and market shares. The applicant stated that it had an interest in maintaining the confidential nature of these matters in relation both to its European competitors and to its competitors and customers on the United States market.
? The applicant drew particular attention to the fact that the question of confidential treatment gave rise to special considerations in the field of anti-
ORDER OF 30. 3. 1982 — CASE 236/81
dumping investigations because the undertakings under investigation were situated ex hypothesi outside the Community and for that reason were beyond the jurisdiction of the institutions. They could only be expected to cooperate on condition that the Community institutions gave them guarantees on confidential treatment of information relating to their business secrets.
s The defendant institutions replied that on this point they accepted the views put forward by the applicant and that they hád no objection to confidential treatment's being ensured for the information and documents for which such treatment was claimed by the applicant, at least as regards certain data used by the institutions in their defence and certain of the annexes thereto. On the other hand it appeared that no position had yet been adopted by the defendant institutions as regards the confidential version of the application itself, which the Court had refused to accept and which consequently had not been communicated to the defendants.
Decision
<· The request for confidential treatment put forward by the applicant is accepted. Protection of the business secrets of the undertakings under investigation in anti-dumping proceedings must take account of the special nature of such investigations. That need has been expressly recognized by Article 8 of Council Regulation No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports (Official Journal L 339, p. 1). That provision must be taken into account, with appropriate adjustments, in proceedings brought before the Court.
12 In this case it appears equitable to ensure confidential treatment for the documents and parts of documents for which such treatment has been claimed by the applicant and already accepted by the defendant institutions.
1 3 As regards the documents which have not yet been the subject of an exam- ination by both sides it will be for the applicant to examine them with the
CELANESE v COUNCIL AND COMMISSION
defendant institutions and to repon to the Court so as to enable it to arrive at a decision. In the event of confidential treatment's not being ensured to the full extent desired by the applicant the latter must have the opportunity if it desires to withdraw any documents and parts of documents to which such a refusal relates.
12 In accordance with the arrangements set out above all the material whose confidential nature has been recognized by the Court will be placed in a special file, which will only be disclosed to the principal parties and the officers of the Court. The onus will be upon the applicant to take all necessary steps to enable the Court Registry to assemble such a file.
1 3 The Court however reserves its decision as regards the use which it may need to make of documents of a confidential nature if respect for the confidential nature of such material should create a conflict with the duty imposed upon the Court by Anieles 33 and 34 of its Statute to state the reasons on which its judgments are based and to give such judgment in open coun, or with the duty imposed on the Advocate General by the second paragraph of Anicie 166 of the EEC Treaty to deliver an opinion in public. In the event of such a situation's arising the Coun must remain free to exclude from the file any documents or pans of documents which would make impossible a public statement of the reasons on which its judgment is based, and to take account of such exclusion when deciding the case.
On those grounds,
T H E COURT,
having heard the views of the Advocate General,
hereby orders as follows:
1. Confidential treatment shall be ensured for the documents and parts of documents whose confidential nature has been claimed by the applicant and accepted by the defendants.
ORDER OF 3C. 3. 1982 — CASE 236/81
2. The President of the Court shall decide upon any subsequent request for confidential treatment of documents or parts of documents after examining the documents and parts of documents in question and hearing the defendants. If such treatment is refused he shall fix a period within which the applicant may withdraw the documents or parts of documents to which the refusal relates.
3 Documents which have been recognized to be wholly or partly confidential shall be placed in a special file which shall only be disclosed to the principal parties and the officers of the Court. The applicant shall mark distinctly all documents or parts of documents whose confidential nature has been recognized and shall supply the Registry with the required number of copies.
4 The Court reserves the right to exclude from the file documents or parts of documents recognized as confidential if the use of such material should prove to be incompatible with the public nature of the statement of the reasons on which its decisions are based or of the opinions of the Advocate General. In that event the Court w.11 give its decision on the basis of the material contained m the file alter exclusion of the documents in question.
5. The costs are reserved.
Luxembourg, 30 March 1982. P. Pescatore J. A. Pompe Judge, Acting as President Deputy Registrar For the Registrar