T-102/96

GENCOR v COMMISSION

ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER ( EXTENDED COMPOSITION ) OF THE COURT OF FIRST INSTANCE

3 June 1997 *

In Case T-l 02/96,

Gencor Ltd, a company incorporated under South African law, established at Johannesburg (Republic of South Africa), represented by K. P. E. Lasok QC , and D . H . Hall, Solicitor, London, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

applicant,

APPLICATION for annulment of the Commission decision of 24 April 1996 declaring a concentration to be incompatible with the common market and the functioning of the Agreement on the European Economic Area (Case No IV/M.619 — Gencor/Lonrho), adopted pursuant to Article 8(3) of Council Regu­ lation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p . 1),

THE PRESIDENT OF THE FIFTH CHAMBER ( EXTENDED COMPOSITION ) OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

1 By applications lodged on 26 November and 6 December 1996 respectively, the Federal Republic of Germany, represented by Ernst Roder and Bernd Kloke, act­ ing as Agents, with an address for service at the Bundesministerium für Wirtschaft (Federal Ministry for Economic Affairs), D-53107 Bonn, and the United Kingdom of Great Britain and Northern Ireland, represented by Stephanie Ridley, acting as Agent, with an address for service in Luxembourg at the British Embassy, 14 Bou­ levard Roosevelt, sought leave to intervene in Case T-102/96 in support of the form of order sought by the defendant.

2 Those applications for leave to intervene were served on the parties by the Regis­ try of the Court of First Instance.

6 The applications for leave to intervene were submitted pursuant to the first para­ graph of Article 37 of the EC Statute of the Court of Justice, which is applicable to the procedure before the Court of First Instance under the first paragraph of Article 46 of that Statute, and were made in accordance with Article 115 of the Rules of Procedure of the Court of First Instance. The Federal Republic of Ger­ many and the United Kingdom must therefore be given leave to intervene in the case in support of the form of order sought by the defendant.

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ORDER OF 3. 6.1997 — CASE T-102/96

The requests for confidential treatment

Subject-matter of the requests and observations of the defendant

7 The applicant requests that, as against the interveners, the following information be treated as confidential:

— paragraph 2.13: delete the two figures in the last sentence (combined plati­ num and rhodium market shares held by the parties to the merger at Com­ munity level);

— paragraph 2.14: delete the two figures in the second sentence (volumes of platinum sold by the parties to the merger in the Community and the European Economic Area);

— paragraph 2.15: delete, in the last sentence, the reference to the place of incorporation of Lonrho's marketing subsidiary;

— paragraph 4.10: delete, in the fifth line, the reference to the place of incor­ poration of Lonrho's marketing subsidiary;

— paragraph 4.28: delete the two figures in the second sentence (combined platinum and rhodium market shares held by the parties to the merger at Community level);

— paragraph 7.4: delete the figures in the first sentence (platinum market shares held by Gencor and Lonrho at world level, as used by the Commis­ sion) and the second sentence (platinum market shares held by the parties to the merger at Community level);

(a) Annex 1 : substitute the non-confidential version of the contested decision for the confidential version;

(b) Annex 3: delete the extract from the purchase agreement concerning the conditions to which that agreement was subject;

(c) Annex 4: delete the letter of 21 May 1996 from Lonrho Pic concerning the extension of the deadline for fulfilment of the conditions to which the merger agreement was subject;

(d) Annex 6:

— paragraph 6.1.7: in the last sentence, delete the figure relating to the margin of error in the calculation of demand for platinum group metals ('PGMs') in the Community;

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— paragraph 7.1: delete all the figures in the tables (total sales of platinum — in terms of value and volume — in the Community);

— paragraph 7.2: delete all the figures in the tables (sales of platinum — in terms of value and volume — effected by Gencor and Lonrho in the Community);

— paragraph 7.3.2: delete the figures relating to the market shares of Amplats and Almaz (shares of the PGMs market held by Amplats and Almaz, the main competitors of Gencor and Lonrho, in the Community);

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ORDER OF 3. 6. 1997 — CASE T-102/96

(f) Annex 8: delete the entire extract (discussion concerning LPD's commer­ cial strategy in relation to its possible future expansion);

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GENCOR v COMMISSION

— paragraph 18: in the third line, delete the figure relating to the level of out­ put which the parties were willing to maintain pursuant to the commitment offered to the Commission;

— paragraph 21: delete the dates for fulfilment of the conditions to which the merger agreement was subject;

— paragraph 22: at the end of the final sentence, delete the date for fulfilment of the conditions to which the merger agreement was subject;

— paragraph 60: delete the two figures appearing in the third and last sen­ tences respectively and all the figures in footnote 4 (combined market shares which the parties to the merger would have held at world level if it had taken place, and short-term forecast by the Commission of changes in those shares);

(1) Data appearing in the application:

— in paragraph 2.3 and Annexes 3 and 4;

— in paragraph 2.9;

— in paragraphs 2.12, 2.13, 2.14, 4.28 and 7.4, and paragraphs 6.1.8, 6.1.10 and 6.1.11 of Annex 6; the information in question is indeed of a confidential nature and should be replaced by approximate ranges, as in the public ver­ sion of the decision (the Commission nevertheless questions whether sales figures of a purely historical nature should be treated as confidential);

— in paragraph 8.11;

— in Annexes 3, 4 and 6;

— Gencor's market share and sales volume figures, given in paragraphs 12, 14 and 60 (only the first figure in the latter paragraph): those data, which are indeed of a confidential nature, should be replaced by approximate ranges, as in the public version of the decision;

— the figure appearing in the first line of paragraph 14 (publicly available data);

— the figure in paragraph 15, which merely constitutes an assessment by the Commission of the market shares of the parties to the merger in the near future should the merger take place;

— the dates referred to in paragraphs 21 and 22;

— the figures in paragraph 60 (to which the same remarks apply as in the case of paragraph 15 — see above).

Findings of the President

13 In the present case, it is necessary, before considering the merits of the application for confidential treatment, to examine the applicant's argument that, in the light of its binding confidentiality agreement with Lonrho, the Court should allow that application, at least as regards information relating to the latter company.

14 That agreement was relied on by the applicant in its letters of 11 December 1996 and 3 January 1997 requesting confidential treatment, but it has not been pro­ duced.

15 Nevertheless, having regard to the considerations set out below, it does not appear necessary to require its production.

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GENCOR v COMMISSION

16 According to the applicant, Lonrho has always regarded the information provided in connection with the Commission's administrative procedure as private and con­ fidential information, the disclosure of which could cause irreparable harm to its business. Accordingly, at the outset of the proceedings, it required the applicant and those advising it in connection with the merger to undertake to use relevant information solely in connection with the Commission's procedure and not to make any unauthorized disclosure. Those restrictions remain in force, and Lonrho has informed the applicant's advisers that it is not prepared to waive them in the event of any intervention in the proceedings pending before the Court. They relate to 'detailed information concerning the business and properties of [Lonrho's] operations'.

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ORDER OF 3. 6.1997 — CASE T-102/96

20 Since the items of data in issue possess different characteristics, it is necessary to divide them into several distinct categories and to examine each of those categories in turn.

A — Paragraph 2.3 of, and Annexes 3 and 4 to, the application and paragraphs 21 and 22 of the defence

21 The applicant requests that confidential treatment be accorded to the deadlines for fulfilment of the conditions to which the merger agreement was subject and the position adopted by the parties with regard to the possible extension of those deadlines.

22 As the Commission has rightly observed, that information is fundamental to any examination of the objection of inadmissibility raised by it, on which the interven­ ers should have the opportunity to comment; it also relates to past events, the commercial significance of which has not, moreover, been established.

26 That request must be interpreted as seeking to obtain confidential treatment for the purchase agreement itself. It cannot be regarded as seeking only to conceal the fact that a copy of the agreement has been lodged at the Registry. Such a request would be manifestly inadmissible: the Court cannot conceal from the interveners the existence of certain documents in its files, since Article 116(2) of the Rules of Procedure provides that the interveners are to receive a copy of every document served on the parties, apart from secret or confidential documents.

27 As a commercial agreement, the purchase agreement itself qualifies, in principle, for the protection accorded to confidential information (see, in particular, the order of the President of the Fourth Chamber, Extended Composition, of the Court of First Instance of 26 February 1996 in Case T-322/94 Union Carbide Cor- poration v Commission, not published in the European Court Reports, paragraph 32). Apart from the passages discussed in paragraphs 21 to 23 above, it has no particular relevance to the outcome of the case. The Commission has not, more­ over, contested the application made in respect of it. That agreement may therefore be regarded as confidential.

C — Paragraph 2.9 of the application

28 The applicant requests that the passage in paragraph 2.9 of the application con­ cerning the day-to-day management of LPD and the agreement known as 'the Principals' Agreement' be regarded as confidential.

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ORDER OF 3. 6.1997— CASE T-102/96

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GENCOR v COMMISSION

34 The application for confidential treatment of that information must therefore be rejected.

D — Paragraphs 2.12, 2.13, 2.14, 4.28 and 7.4 of the application, paragraphs 6.1.7, 6.1.8, 6.1.9, 6.1.10 and 6.1.11 of Annex 6 to the application, paragraphs 12, 14 (apart from the figure relating to Almaz) and 60 of the defence, and paragraph 7.2 of Annex 7 to the application

35 The applicant requests that confidential treatment be accorded to certain of the figures given, in particular the market shares, sales volumes and turnover of the parties to the merger and of its main competitor, Amplats.

36 Those data, which contain information relating to the competitive positions of the principal undertakings operating on the market, may indeed be regarded as secret or confidential within the meaning of Article 116(2) of the Rules of Procedure (see the order of the President of the First Chamber, Extended Composition, of the Court of First Instance of 19 May 1995 in Case T-290/94 Kaysersberg v Commis- sion, not published in the European Court Reports, paragraph 12). Nevertheless, as the Commission has suggested, those figures must be replaced by approximate ranges, as in the public version of the contested decision, so that the interveners can properly present their arguments before the Court .

39 The applicant requests that confidential treatment be accorded to the figures for total European consumption of platinum, in terms of volume and value, and for the approximate market shares held by Amplats and Almaz in the Community.

40 As for the figures relating to total European consumption of platinum, these are aggregated figures which do not fall within the category of information qualifying for the protection accorded to secrets and other confidential information under Article 116(2) of the Rules of Procedure (see the order of the Court of First Instance in Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NHM Stahlwerke and Oth- ers v Commission [1996] ECR II-537, paragraph 24).

41 As regards the figures in respect of the market shares held by Amplats and Almaz at Community level, these are expressed, as the Commission has pointed out, in the form of a very broad range, and cannot therefore qualify for confidential treatment.

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GENCOR v COMMISSION

42 It follows that this part of the application for confidential treatment cannot be allowed.

— table 3.1 (data concerning turnover and market shares — subject to the inser­ tion of approximate ranges);

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ORDER OF 3.6.1997 — CASE T-102/96

— certain commercial information in paragraph 3.2.1, to be specified by the appli­ cant.

46 This part of the application for confidential treatment must therefore be allowed.

47 As regards figure 3.1 (cost figures in respect of the exploitation of individual plati­ num mines by South African producers), NERA has itself stated (footnote 7 to the report) that it based its findings on published information. Before the Court can rule on that part of the report, the applicant must be requested to state whether or not those data are confidential.

51 Those data constitute aspects of the applicant's commercial policy concerning the future development of its mining operations and its establishment policy. Conse­ quently, they may be regarded as business secrets or confidential information within the meaning of Article 116(2) of the Rules of Procedure..

H — Paragraphs 8.2 and 8.5 of the application and paragraphs 18, 80 and 81 of the defence

52 The applicant requests that confidential treatment be accorded to certain data con­ cerning the current production of various mine shafts, the increase in output envis­ aged in the commitment offered to the Commission during the administrative pro­ cedure, and the name of the mine to be developed.

53 The Commission has not submitted any observations in this connection.

54 The figures contained in paragraphs 8.2 and 8.5 of the application and paragraph 18 of the defence constitute sensitive commercial information relating to the appli­ cant's expansion prospects. They may be regarded as business secrets.

55 In contrast, the application in respect of the name of the mine to be developed in the context of the commitment referred to in paragraphs 80 and 81 of the defence does not prima facie constitute a business secret or confidential information, par­ ticularly since — especially in paragraphs 8.2 and 8.5 of the application — the applicant itself has not sought the deletion of that information.

59 As the Commission has observed, the applicant has not explained why the fact that Lonrho disassociated itself from one expert's report on the likely trend of plati­ num sales on the world market should constitute a business secret or sensitive information.

60 The same remark applies to the applicant's forecast of likely market trends.

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GENCOR v COMMISSION

61 In any event, and in accordance with the case-law of the Court of First Instance (order in Union Carbide Corporation v Commission, paragraphs 44 and 46), assess­ ments of that kind cannot be confidential in nature as against interveners. More­ over, those assessments form part of the applicant's arguments regarding the Com­ mission's analysis of market trends contained in the contested decision, on which the interveners must be allowed to comment.

62 It follows that this part of the application for confidential treatment must be rejected.

K — Annex 1 to the application

66 Lastly, the applicant requests that the confidential version of the decision (Annex 1 to the application) be replaced by the non-confidential version.

67 Since the items treated confidentially by the Commission in the non-confidential version of the decision have been regarded above as indeed meriting the same treatment under Article 116(2) of the Rules of Procedure, this part of the applica­ tion must be allowed.

On those grounds,

THE PRESIDENT OF THE FIFTH CHAMBER ( EXTENDED COMPOSITION ) OF THE COURT OF FIRST INSTANCE

hereby orders:

— paragraphs 2.12, 2.13, 2.14, 4.28 and 7.4 of the application;

— paragraphs 6.1.7, 6.1.8, 6.1.9, 6.1.10 and 6.1.11 of Annex 6 to the appli- cation;

— paragraphs 12, 14 (apart from the figure relating to Almaz) and 60 (apart from the figure mentioned in the last sentence) of the defence;

— paragraph 7.2 of Annex 7 to the application;

— in Annex 9 to the application (NERA report), the business information and figures contained in the following:

— footnote 8;

— the place of incorporation of Lonrho's marketing subsidiary, referred to in paragraphs 2.15 and 4.10 of the application;

— the figures and the name of the mine appearing in paragraphs 8.2 and 8.5 of the application and paragraph 18 of the defence;

— the name of the mine appearing in paragraphs 80 and 81 of the defence.

3. As regards the NERA report (Annex 9 to the application), the applicant is requested to indicate to the Court whether it accepts the Commission's pro- posal, stating the commercial data contained in paragraph 3.2.1 of the report in respect of which it requests confidential treatment, or whether it wishes to request confidential treatment for other detailed data. In the latter case, it shall provide a non-confidential version of the report, duly supported by a statement of reasons.

In addition, the applicant shall state whether or not it regards the data con- tained in figure 3.1 of the NERA report, relating to the costs of the opera- tion of individual platinum mines by South African producers, as confiden- tial in nature.

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Luxembourg, 3 June 1997.

H. Jung R. Garcia-Valdecasas

Registrar President

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