ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER
4 September 2014 (*)
(Confidentiality — Contested by one intervening party)
In Case T‑296/12,
The Health Food Manufacturer’s Association, established in East Molesey (United Kingdom),
Quest Vitamins Limited, established in Birmingham (United Kingdom),
Natures Aid Ltd, established in Kirkham (United Kingdom),
Natuur-en Gezondheidsproducten Nederland, established in Ermelo (Netherlands),
New Care Supplements B.V., established in Oisterwijk (Netherlands),
represented by B. Kelly and G. Castle, Solicitors, and P. Bogaert, lawyer,
applicants,
supported by
FederSalus, established in Rome (Italy),
Medestea biotech SpA, established in Turin (Italy),
and
Naturando Srl, established in Osio Sotto (Italy),
represented by E. Valenti and D. Letizi, lawyers,
interveners,
v
European Commission, represented by L. Flynn and S. Grünheid, acting as Agents,
defendant,
supported by
Council of the European Union, represented by I. Šulce and M. Moore, acting as Agents,
Bureau européen des unions de consommateurs (BEUC), established in Brussels (Belgium), represented by S. Pappas, lawyer,
European Parliament, represented by J. Rodrigues and L. Visaggio, acting as Agents,
and
French Republic, represented by D. Colas and S. Menez, acting as Agents,
interveners,
APPLICATION for annulment of Commission Regulation (EU) No 432/2012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2012 L 136, p. 1), and the purported decision of the Commission of 16 May 2012 adopting an ‘on-hold’ list of health claims,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT,
makes the following
Order
Procedure
1 By application lodged at the Registry of the General Court on 2 July 2012, the applicants, The Health Food Manufacturer’s Association, Quest Vitamins Limited, Natures Aid Ltd, Natuur-en Gezondheidsproducten Nederland and New Care Supplements B.V., brought an action for annulment of Commission Regulation (EU) No 432/2012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2012 L 136, p. 1), and the purported decision of the Commission of 16 May 2012 adopting an ‘on-hold’ list of health claims.
2 By document lodged at the Court Registry on 25 September 2012, the Czech Republic sought leave to intervene in support of the Commission.
3 By document lodged at the Court Registry on 26 September 2012, the Council of the European Union sought leave to intervene in support of the Commission.
4 By document lodged at the Court Registry on 28 September 2012, the Bureau européen des unions de consommateurs (‘the BEUC’) sought leave to intervene in support of the Commission.
5 By document lodged at the Court Registry of the Court on 28 September 2012, FederSalus, Medestea biotech SpA and Naturando Srl sought leave to intervene in support of the applicants.
6 By document lodged at the Court Registry on 2 October 2012, the European Parliament sought leave to intervene in the present proceedings in support of the Commission.
7 By document lodged at the Court Registry on 4 October 2012, the French Republic sought leave to intervene in support of the Commission.
8 By letters received at the Court Registry on 24 October 2012, the applicants requested, pursuant to Article 116(2) of the Rules of Procedure of the General Court, that certain confidential information in the annexes to the application should not be disclosed to the interveners, in the event that they were granted leave to intervene in the proceedings. The applicants produced, for the purpose of disclosure to the interveners, a non-confidential version of the procedural documents in question.
9 By order of 16 January 2013, the President of the First Chamber of the General Court granted leave to the Czech Republic, the Council of the European Union, the European Parliament, the French Republic and the BEUC to intervene in support of the Commission and to FederSalus, Medestea Biotech Spa and Naturando Srl to intervene in support of the applicants. Furthermore, the President reserved the decision as to whether the application for confidential treatment was well founded and, as a provisional measure, restricted the provision of procedural documents to those parties to a non-confidential version, pending the submission of any observations on the application for confidential treatment.
10 By letter received at the Court Registry on 7 February 2013, the BEUC raised objections to the applicants’ request for confidential treatment.
11 By document of 3 April 2013, the Czech Republic informed the General Court that it no longer intended to intervene in support of the Commission.
12 By order of 5 July 2013, the Czech Republic was removed from the register as an intervener in the present case.
13 After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was, accordingly, assigned.
14 As the President of the Chamber was prevented from attending, the President of the General court designated, in accordance with the order of precedence laid down in Article 6 of the Rules of Procedure, a first judge to replace the President of the Chamber and, pursuant to Article 32(3) of the Rules of Procedure, a second judge to complete the Chamber.
The application for confidential treatment
Subject-matter of the application
15 The application for confidential treatment submitted by the applicants relates to Annexes A.6, A.7 and A.8 to the application. In particular, the applicants seek confidential treatment in respect of the following:
– the figures in the table compiled by Quest Vitamins Limited detailing the costs of managing rejected health claims, in particular the figures in columns ‘Cost £’000’ and ‘Percentage Co. T/O’ (Annex A.6, page 229);
– the figures in the table compiled by Nature Aid Ltd detailing the costs of managing rejected or on-hold health claims, in particular the figures in columns ‘2011 Sales £’, ‘2012 Forecast Sales £’, ‘2013 Projected Sales £’, ‘Est.% Loss Sales’, ‘2013 Sales Revenue Loss £’ and ‘2013 Revised Sales’ (Annex A.7, pages 233 to 237);
– the figures in the table compiled by New Care Supplements B.V. detailing the costs of managing rejected or on-hold health claims, in particular the figures in columns ‘THT’, ‘Saldo’, ‘afzet 2011’, ‘vrd in maanden’ and ‘vrd in maanden totaal (VPM+GRP)’ (Annex A.8, pages 239 to 253);
– the comments and figures in the table compiled by New Care Supplement B.V. detailing the costs of managing rejected or on-hold health claims, in particular in relation to the section headed ‘Opmerking’ (remarks) (Annex A.8, page 239).
Whether the application for confidential treatment is well founded
16 Article 116(2) of the Rules of Procedure provides as follows:
‘If the President allows the intervention, the intervener shall receive a copy of every document served on the parties. The President may, however, on application by one of the parties, omit secret or confidential documents.’
17 That provision lays down the principle that interveners are to receive a copy of every document served on the parties and it is only by way of derogation from that principle that certain secret or confidential documents or information may be withheld from disclosure (orders of 4 April 1990 in Hilti v Commission, T‑30/89, EU:T:1990:27, paragraph 10; 22 February 2005 in Hynix Semiconductor v Council, T‑383/03, EU:T:2005:57, paragraph 18; and 18 November 2008 in Zhejiang Harmonic Hardware Products v Council, T‑274/07, EU:T:2008:508, paragraph 17).
18 In that regard, it should be borne in mind, first, that the party who makes an application for confidential treatment is required to specify the documents or information covered and to duly state the reasons why they are claimed to be confidential (see Hynix Semiconductor v Council, EU:T:2005:57, paragraph 31 and the case-law cited). The Practice Directions to Parties (OJ 2007 L 232, p. 7) restates those requirements in point 76, according to which ‘[a]n application must accurately identify the particulars or passages to be excluded and briefly state the reasons for which each of those particulars or passages is regarded as secret or confidential’. The first subparagraph of Article 6(2) of the Instructions to the Registrar of the General Court (OJ 2007 L 232, p. 1) provides that an application for confidential treatment must be made in accordance with, inter alia, point 76 of the Practice Directions to parties (see Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 18).
19 Second, when a party makes an application under the second sentence of Article 116(2) of the Rules of Procedure, the President is to give a decision solely on the documents and information the confidentiality of which is disputed (Hynix Semiconductor v Council, EU:T:2005:57, paragraph 36). In so far as an application is not contested, there is no need to give a decision on it.
20 Third, in so far as an application brought under the second sentence of Article 116(2) of the Rules of Procedure is contested, the President is required, first of all, to examine whether the documents and information the confidentiality of which is disputed, and for which an application for confidential treatment has been made, are secret or confidential (see, to that effect, Hynix Semiconductor v Council, EU:T:2005:57, paragraph 38; order of 11 June 2007 in Deutsche Post v Commission, T‑266/02, EU:T:2007:166, paragraph 21; and Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 19).
21 Where his examination leads him to conclude that some of the documents and information the confidentiality of which is disputed are secret or confidential, the President is required to go on to assess and weigh up the competing interests, for each document and piece of information (Hynix Semiconductor v Council, EU:T:2005:57, paragraph 42, and Zhejiang Harmonic Hardware Products v Council, EU:T:2008:508, paragraph 20).
22 In the present case, it should be noted, first, that the BEUC is the only intervener to have raised objections to the application for confidential treatment. On the other hand, the other parties granted leave to intervene in the proceedings, either in support of the form of order sought by the applicants or that sought by the Commission, have not objected to the application and, as a consequence, have by implication waived the right to challenge the claim that the case-file contains confidential information. It follows that there is no need to examine whether the applicants’ application is well founded in regard to those interveners (see, to that effect, order of 4 March 2005 in BUPA and Others v Commission, T‑289/03, ECR, EU:T:2005:78, paragraph 11) and that the present order must be confined to examining that application with regard to the BEUC.
23 Second, as regards the information forming the subject-matter of the application for confidential treatment, it is clear that it relates to figures concerning the costs incurred, according to Quest Vitamins Limited, Natures Aid Ltd and New Care Supplements B.V., as a result of those three companies being required to comply with Regulation No 432/2012. Those figures relate to those costs expressed as a percentage of those companies’ turnover, the sales figures for 2011, detailed forecast sales for 2012 and 2013, an estimate of those three companies’ losses in 2013 and the number of products which those companies have in stock.
24 As a consequence, it may be concluded from that examination that that information is secret or confidential by its very nature, and that there is a risk that disclosure of that information may affect the applicants’ commercial interests in relation to their competitors. Moreover, it is clear that the information in question is not in the public domain, is not made available to third parties and does not constitute historic information.
25 Third, in accordance with the case-law cited in paragraph 21 above, the President is required to go on to assess and weigh up the competing interests for each document and piece of information the confidentiality of which is disputed.
26 In the present case, the interests of the applicants in obtaining protection for their financial data vis-à-vis the remaining interveners must prevail over the concern expressed by the BEUC that it should have the opportunity to assess the costs of the health claims in its capacity as a consumer protection organisation. Moreover, it should be noted that the BEUC is in a position to submit its observations on all the applicants’ arguments and that the information covered by the application for confidential treatment does not appear to be necessary for the purpose of the BEUC’s exercise of its procedural rights.
27 Since the non-disclosure of that information will not affect the intervening parties’ ability to assert their rights and state their case before the General Court, the applicants’ application for confidential treatment must be granted.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application for confidential treatment submitted by The Health Food Manufacturer’s Association, Quest Vitamins Limited, Natures Aid Ltd, Natuur-en Gezondheidsproducten Nederland and New Care Supplements B.V. with regard to the Council of the European Union, the Bureau européen des unions de consommateurs (BEUC), the European Parliament, the French Republic, FederSalus, Medestea biotech SpA and Naturando Srl is granted.
2. The costs are reserved.
Luxembourg, 4 September 2014.
Registrar | | Acting President |