CELEX: 62003TO0289
Language: en
Date: 2005-03-04 00:00:00
Title: Order of the President of the Third Chamber (extended composition) of the Court of First Instance of 4 March 2005. # British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd v Commission of the European Communities. # Intervention - Confidentiality. # Case T-289/03.

Case T-289/03
      British United Provident Association Ltd (BUPA) and Others
      v
      Commission of the European Communities
      (Intervention – Confidentiality)
      Order of the President of the Third Chamber (Extended Composition) of the Court of First Instance, 4 March 2005 
      Summary of the Order
      1.     Procedure – Intervention – Communication of pleadings to interveners – Derogation – Confidential treatment – Conditions –
            Application for confidential treatment – Statement of reasons – Examination by the President – Verification of secret or confidential
            nature – Weighing-up of  interests 
      (Rules of Procedure of the Court of First Instance, Art. 116(2); Instructions to the Registrar of the Court of First Instance,
            Art. 5(4), first para.)
      2.     Procedure – Intervention – Communication of pleadings to interveners – Derogation – Confidential treatment – Information provided
            by an insurer to a public authority entrusted by the national legislature with certain powers of supervising and applying
            national provisions governing private health insurance and required to make a report to the government – Information not capable
            of being regarded as confidential vis-à-vis the Member State concerned
      (Rules of Procedure of the Court of First Instance, Art. 116(2))
      3.     Procedure – Intervention – Communication of pleadings to interveners – Derogation – Confidential treatment – Whether application
            for confidential treatment vis-à-vis a Member State justified by a risk that the latter might communicate to another intervener,
            dependent upon it, information whose confidentiality the latter has not challenged – Risk not established, having regard to
            the inadmissibility of such conduct on the part of the Member State
      (Art. 10 EC; Rules of Procedure of the Court of First Instance, Art. 116(2))
      4.     Procedure – Intervention – Communication of pleadings to interveners – Derogation – Confidential treatment – Application for
            confidential treatment concerning information already widely reported in the media, particularly at the instigation of the
            applicant itself – Dismissal 
      (Rules of Procedure of the Court of First Instance, Art. 116(2))
      5.     Procedure – Intervention – Communication of pleadings to interveners – Derogation – Confidential treatment – Application for
            confidential treatment of information not capable of giving access to concrete economic information harmful to the applicants’
            commercial interests – Dismissal 
      (Rules of Procedure of the Court of First Instance, Art. 116(2))
      1.     The first sentence of Article 116(2) of the Rules of Procedure of the Court of First Instance lays down the principle that
         interveners are to receive a copy of every document served on the parties. It is only by way of derogation from that principle
         that the second sentence of that provision enables the Court to make certain documents in the case the subject of confidential
         treatment and thus to exclude them from the obligation of communication to the interveners.
      
      For the purpose of determining the conditions under which recourse may be had to that derogation, it is necessary to balance,
         in respect of each document or passage of a document on the Court’s file for which confidential treatment is claimed, the
         applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate
         concern to have the necessary information for the purpose of being fully in a position to assert their rights and to state
         their case before the Court. 
      
      As a general rule, an application for the confidential treatment of information which contains business secrets should be
         upheld.  Furthermore, a derogation from the principle set out in the first sentence of Article 116(2) of the Rules of Procedure
         can be made only after an examination of the confidentiality or otherwise of each document on the file for which an application
         for confidential treatment, duly reasoned, has been submitted.  It is particularly in order to allow such an examination that
         the first paragraph of Article 5(4) of the Instructions to the Registrar of the Court of First Instance provides that a party’s
         application for the confidential treatment of certain information on the file must specify the confidential matters or passages
         and explain why they are confidential.
      
      Therefore, when hearing an application for confidentiality, the President must first examine whether the matters in respect
         of which confidential treatment is requested are capable of being classified as business secrets or other confidential information
         vis-à-vis the intervener challenging the exclusion depriving it of certain information.  Only where that is the case will
         it have to balance the legitimate interests of the parties to the proceedings in accordance with the principles set out above.
      
      (see paras 22-26)
      2.     Information concerning the possible consequences for the applicant of a system for harmonising risk levels being implemented
         on the national sickness insurance market, which that party, being active in that market, has supplied in that regard to a
         State authority of that Member State, entrusted by the national legislature with certain powers of supervising and applying
         the national provisions governing private health insurance and with a role as government adviser on the matter and with a
         duty to gather, evaluate and communicate to the relevant minister all the essential facts relating to the functioning of the
         private health insurance market in order to judge the relevance of introducing that system, cannot be regarded as confidential
         vis-à-vis a Member State intervening in proceedings before the Court of First Instance. 
      
       (see paras 28-29)
      3.     The fact that a Member State and a body which is in some respects dependent on it might have concordant general positions
         on a given matter provides no ground for inferring that their respective interventions in proceedings before the Court of
         First Instance are necessarily perfectly in accord with each other, or that they are likely to exchange information between
         themselves, even if confidential, concerning the case in hand, or that information communicated to the Member State and the
         confidentiality of which in its regard the said body has not challenged, might nevertheless be made accessible to it by the
         Member State.
      
      The risk of such communication cannot therefore be regarded as making that information confidential vis-à-vis the Member State,
         especially as an exchange between the interveners of certain information which, after challenge by the opposing party, had
         been communicated to them by the Court of First Instance on an individual basis and solely for the purposes of defending their
         own legitimate interests in the proceedings would, in any event, be inadmissible and constitute a serious undermining of the
         requirements of the sound administration of justice and, to the extent that a Member State was involved, constitute a breach
         of the duty of loyalty under Article 10 EC.
      
      (see paras 31-32)
      4.     Applications for confidential treatment, in relation to an intervener, of information already widely reported in the media
         must be dismissed, since that information has lost its confidentiality and therefore no longer warrants specific protection
         by the Court of First Instance.
      
      (see paras 34-35)
      5.     Where it has not been conclusively established how, on the basis of aggregate data, which are, moreover, of a certain age,
         a third party might deduce concrete information harmful to the applicants’ commercial interests, as to turnover, accounts
         and, finally, current profitability, there is no need to allow their application for the exclusion of such data from the documents
         to be sent to an intervening party.
      
      (see para. 38)
ORDER OF THE PRESIDENT OF THE THIRD CHAMBER (EXTENDED COMPOSITION) OF THE COURT OF FIRST INSTANCE
      4 March 2005 (*)
      
      (Intervention – Confidentiality)
      In Case T-289/03,
      British United Provident Association Ltd (BUPA), established in London (United Kingdom),
      
      BUPA Insurance Ltd, established in London,
      
      and
      BUPA Ireland Ltd, established in Dublin (Ireland),
      
      represented by N. Green QC, K. Bacon and J. Burke, Barristers, and B. Amory, lawyer, 
      applicants,
      v
      Commission of the European Communities, represented initially by J. Flett and subsequently by N. Khan, acting as Agents, with an address for service in Luxembourg,
      
      defendant,
      supported by
      Kingdom of the Netherlands, represented by N. Bel, acting as Agent,
      
      Ireland, represented by D. O’Hagan, acting as Agent, assisted by G. Hogan SC and E. Regan, Barrister, with an address for service
         in Luxembourg,
      
      and
      Voluntary Health Insurance Board (VHI), established in Dublin, represented by D. Collins, G. FitzGerald and D. Clarke, solicitors,
      
      interveners,
      APPLICATION for the annulment of Commission Decision C(2003)1322 final of 13 May 2003, concerning a risk equalisation scheme
         in the Irish health insurance market (State Aid case N 46/2003-Ireland),
      
      
      THE PRESIDENT OF THE THIRD CHAMBER (EXTENDED COMPOSITION) OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
      Registrar: H. Jung,
      makes the following
      Order
       Facts and procedure
      1       By application lodged at the Registry of the Court of First Instance on 20 August 2003, the applicants brought an action for
         the annulment of Commission Decision C(2003)1322 final concerning a risk equalisation scheme (‘RES’) in the Irish health insurance
         market (State Aid case N 46/2003-Ireland).
      
      2       By that measure, the Commission decided not to raise any objections to the RES, taking the view that it did not contain any
         elements of State aid within the meaning of Article 87(l) EC. The contested decision shows that the scheme essentially provides
         for a system of parafiscal taxes designed to harmonise the level of risk encountered by operators in the complementary health
         insurance market, liberalised in Ireland since the beginning of the 1990s.
      
      3       By documents lodged at the Registry of the Court of First Instance on 27 November, 12 December and 17 December 2003, Ireland,
         the Kingdom of the Netherlands and the Voluntary Health Insurance Board (‘the VHI’) applied for leave to intervene in these
         proceedings in support of the defendant. The applications to intervene were notified to the applicants and the defendant.
      
      4       By letters of 4 December 2003 and 22 January 2004, the defendant stated that it had neither any observations nor any request
         for confidential treatment with regard to the intervention of Ireland and the Kingdom of the Netherlands. By letter of 7 January
         2004, the defendant told the Court of First Instance that it considered that the VHI should be allowed to intervene and that
         there was no need to exclude anything from the file in relation to that party.
      
      5       By letters of 5 January and 22 January 2004, the applicants stated that they had no observations concerning the applications
         to intervene by Ireland and the Kingdom of the Netherlands. By letter of 3 February 2004, however, the applicants contended
         that the application of the VHI to intervene should be dismissed. 
      
      6       By separate documents lodged at the Registry of the Court of First Instance on 5 January, 22 January and 3 February 2004,
         the applicants made an application under Article 116(2) of the Rules of Procedure for confidential treatment vis-à-vis the
         three interveners in relation to certain information contained in the application including its annexes, the content of those
         applications being, essentially, identical.
      
      7       By orders of 3 February and 2 April 2004 (order of the President of the Third Chamber (Extended Composition) of the Court
         of First Instance of 2 April 2004 in Case T‑289/03 BUPA and Others v Commission, not published in the ECR) the President of the Third Chamber, Extended Composition, of the Court of First Instance respectively
         allowed, first, Ireland and the Kingdom of the Netherlands and, secondly, the VHI to intervene in these proceedings in support
         of the defendant. The President further ordered that the interveners be set a time-limit within which to submit any observations
         they might have on the applications for confidential treatment and reserved a decision on their merits (paragraph 3 of the
         operative part of the respective orders).
      
      8       By letters of 5 April 2004, the Registrar of the Court of First Instance served upon each of the interveners, inter alia,
         the non-confidential version of the application and its annexes and invited them to submit by 28 April 2004 any objections
         they might have in relation to the applications for confidential treatment of the information provisionally excluded.
      
      9       By letter of 27 April 2004, the VHI informed the Court of First Instance, in relation to the application for confidential
         treatment brought by the applicants in its regard, that it had no objection to the documents concerned being excluded from
         the file. The Kingdom of the Netherlands did not react to the letter from the Registrar of the Court of First Instance of
         5 April 2004.
      
      10     By letter of 28 April 2004, Ireland expressed objections concerning the application for confidential treatment formed by the
         applicants, and asked the Court of First Instance to send it a complete set of all the procedural documents.
      
       The applications for confidential treatment 
      11     The VHI and the Kingdom of the Netherlands have refrained, either expressly or tacitly, from challenging the exclusion of
         certain information from the file in relation to them. There is therefore no further need to rule, by way of an order, as
         to whether the applicants’ applications for confidential treatment in their regard are well founded. This order will therefore
         be confined to examining the application for confidential treatment raised in respect of Ireland.
      
      12     The applicants apply for confidential treatment vis-à-vis Ireland of certain passages in their application and its annexes,
         which, they maintain, contain confidential information and sensitive business secrets, particularly vis-à-vis their sole competitor,
         the VHI. They consider that those passages should be excluded from the file to be sent to Ireland because they contain:
      
      –       details of confidential discussions with the Health Insurance Authority (‘the HIA’), the Irish authority entrusted under the
         Health Insurance Acts 1994-2003 with certain supervisory and executive powers, and with advising the Irish Government in connection
         with national legislation on private sickness insurances,
      
      –       information based on an estimate of charges potentially incurred by BUPA Ireland on account of the RES by reference to the
         profits of its operations in Ireland,
      
      –       information revealing the possibility of BUPA Ireland having to leave the Irish market and its probable commercial strategy
         following the implementation of the RES.
      
      13     According to the applicants, the particular passages in question are the following:
      –       The whole of paragraph 11 of the application, pages 6 to 7;
      –       The last sentence of the first paragraph of the summary of the application, page 58;
      –       The last sentence of paragraph 150 of the application, page 44;
      –       The section of paragraph 94 beginning with ‘To that end, …’ and ending with ‘cost of claims’, and paragraphs 95 and 96 of
         the witness statement of Mr Martin O’Rourke, Annex 22 to the application, pages 1392 and 1393;
      
      –       The last sentence of paragraph 99 of Mr O’Rourke’s witness statement, page 1394;
      –       The first indent of section 4.5 of the report of Nera Economic Consulting (‘the NERA report’) beginning with ‘Impact on BUPA
         ...’ and ending with ‘monopoly provider’, Annex 23 to the application, page 1425;
      
      –       The last sentence of the second indent of section 4.5 of the NERA report beginning with ‘Like BUPA ...’ and ending with ‘the
         Irish market’, page 1425;
      
      –       The last sentence of section 4.6 of the NERA report, beginning with ‘In meetings ...’ and ending with ‘cost of claims’, page 1427;
      –       The part of section 5.2 of the NERA report beginning with ‘Foreign PMI providers ...’ and ending with ‘efficient competitor
         of the VHIB’, a quotation from the witness statement of Mr O’Rourke, page 1430.
      
      14     The applicants further request confidential treatment of tables 2.1 and 2.2 of the NERA report, page 1404, on the ground that
         they contain details concerning BUPA Ireland’s revenue and claims frequency.
      
      15     Ireland does not accept that the information contained in the above documents is of an essentially sensitive or confidential
         nature from the commercial point of view. It further maintains that access to that information is essential for it to be able
         effectively to state its point of view on the essential questions raised by the present dispute and to refute the allegations
         of the applicants.
      
      16     First, concerning the ‘likely’ commercial strategy of BUPA Ireland in response to the implementation of the RES, Ireland argues
         that that strategy, being uncertain and dependent on a future decision of BUPA Ireland, cannot constitute a confidential element.
         Moreover, the applicants did not make an application for confidential treatment in relation to the defence, paragraph 16 of
         which refers to a position adopted on that subject. Finally, Ireland argues, the impact of the RES on the applicants’ business
         has already been widely reported upon, following public statements by the applicants themselves, in the Irish media, such
         as in articles in the Irish Independent, of 24 June 2002, in the Irish Medical News, of 29 October 2002, and in the press release of BUPA Ireland itself, of 30 June 2003, published on its internet site.
      
      17     Secondly, concerning the alleged confidentiality of BUPA Ireland’s profits, Ireland argues that certain figures relating to
         its financial results were already divulged by the communication to the interveners of paragraph 16 of the Commission’s defence,
         which the applicants did not oppose. Ireland further considers that access to only the revenue figures of BUPA Ireland, in
         the absence of information on its outgoings including claims and administrative costs, would in any event not be sufficient,
         given that the profitability of BUPA Ireland and, even more, its claims history, are essential factors in the present case.
         More particularly concerning Annex 23 to the application (p. 1404), that is to say tables 2.1 and 2.2 of the NERA report,
         Ireland argues that the profits of BUPA Ireland have already been communicated to the Irish authorities.
      
      18     Thirdly, concerning BUPA Ireland’s estimates of the potential magnitude of its liability after the implementation of the RES,
         Ireland points out that the latter have already been revealed on the internet site www.bupaireland.ie//whatsnew/papers and published in an article in the Sunday Business Post of 18 January 2004. Moreover, given that the substance of the present dispute concerns questions such as the proportionality
         of the RES and its impact on competition, the interveners must at least have access to the limited financial information about
         BUPA Ireland as set out in the application.
      
      19     Finally, concerning the information which formed the subject-matter of discussions between BUPA Ireland and the HIA, Ireland
         argues that that information has already been made public in the press or in the defence, and does not therefore call for
         special protection. Moreover, making information accessible concerning BUPA Ireland’s previous discussions with the HIA has
         no bearing on the candour of any future discussions which BUPA Ireland might have with it.
      
      20     Ireland concludes that the information covered by the request for confidential treatment should be communicated to it in its
         entirety. 
      
      21     Article 116(2) of the Rules of Procedure provides:
      ‘If an intervention for which application has been made within the period of six weeks prescribed in Article 115(1) is allowed,
         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.’
      
      22     The first sentence of Article 116(2) of the Rules of Procedure thus lays down the principle that interveners are to receive
         a copy of every document served on the parties. It is only by way of derogation from that principle that the second sentence
         of that provision enables the Court to make certain documents in the case the subject of confidential treatment and thus to
         exclude them from the obligation of communication to the interveners (order of the Court of First Instance in Case T-30/89
         Hilti v Commission [1990] ECR II-163, publication by extracts, paragraph 10).
      
      23     For the purpose of determining the conditions under which recourse may be had to that derogation, it is necessary to balance,
         in respect of each document or passage of a document on the Court’s file for which confidential treatment is claimed, the
         applicant’s legitimate concern to prevent substantial damage to its business interests and the interveners’ equally legitimate
         concern to have the necessary information for the purpose of being fully in a position to assert their rights and to state
         their case before the Court (see, for example, Hilti, paragraph 11; order in Case T-66/94 Auditel v Commission [1995] ECR II-239, paragraph 31; order in Case T-102/96 Gencor v Commission [1997] ECR II-879, paragraph 12). 
      
      24     It has also been consistently held that, as a general rule, an application for the confidential treatment of information which
         contains business secrets should be upheld (see, for example, order in Joined Cases T-7/93 R and T‑9/93 R Langnese Iglo v Commission [1993] ECR II-131, paragraph 15; order in Case T-74/97 Büchel & Co. Fahrzeugteilefabrik v Council, not published in the ECR, paragraph 8).
      
      25     Furthermore, a derogation from the principle set out in the first sentence of Article 116(2) of the Rules of Procedure can
         be made only after an examination of the confidentiality or otherwise of each document on the file for which an application
         for confidential treatment, duly reasoned, has been submitted. It is particularly in order to allow such an examination that
         the first paragraph of Article 5(4) of the Instructions to the registrar of the Court of First Instance of 3 March 1994 (OJ
         1994 L 78, p. 32, last amended on 5 June 2002 (OJ 2002 L 160, p. 1)) provides that a party’s application for the confidential
         treatment of certain information on the file must specify the confidential matters or passages and explain why they are confidential
         (order in Case T-168/01 Glaxo Wellcome v Commission, not published in the ECR, paragraphs 36 and 37).
      
      26     The Court must therefore first examine whether the matters in respect of which confidential treatment is requested are capable
         of being classified as business secrets or other confidential information vis-à-vis Ireland. Only if that is so will it be
         necessary to balance the legitimate interests of the parties to the proceedings in accordance with the principles set out
         above.
      
       The alleged confidentiality of the discussions with the HIA and the information concerning the business of BUPA Ireland
      27     Since the discussions between BUPA Ireland and the HIA, as described in the application and its annexes, refer in particular
         to information concerning the business of BUPA Ireland and the effects which a possible introduction of the RES would have
         on that business, these two aspects of the request for confidential treatment should be considered together. 
      
      28     Concerning the alleged confidentiality and the alleged need to ensure the candour of discussions between BUPA Ireland and
         the HIA, it should be noted by way of preliminary observation that the HIA is an Irish authority, established under the Health
         Insurance Acts 1994-2003, entrusted by the national legislature with certain powers of supervising and applying the national
         provisions governing private health insurance and with the role of adviser to the Irish Government on the matter. It is also
         undisputed that, in accordance with the national legislation referred to above, the HIA has specific powers concerning the
         introduction and implementation of the RES. That comprises its duty to gather, evaluate and communicate to the relevant minister,
         in the form of a report, all the essential facts relating to the functioning of the private health insurance market in order
         to judge the relevance of introducing the RES. In addition, as is shown in particular by the passages of the application in
         respect of which the applicants ask the Court of First Instance for confidential treatment vis-à-vis Ireland, it is precisely
         in the context of exercising those regulatory and administrative functions, namely the possible introduction of the RES, that
         the HIA has held informal meetings with BUPA Ireland in order to discuss the impact of the new system on the latter. 
      
      29     Since the HIA, as a State authority, is responsible vis-à-vis Ireland for the sound administration of the national legislation
         in question, it follows from the above that neither the existence as such of informal contacts with the HIA, nor the information
         supplied on that occasion by BUPA Ireland concerning the possible consequences which implementation of the RES might have
         for it can be regarded as confidential matters vis-à-vis Ireland.
      
      30     Moreover, it is apparent from the application for confidential treatment with regard to Ireland, which is broadly identical
         to the applications concerning the VHI and the Kingdom of the Netherlands, that the applicants are seeking to protect the
         confidentiality of certain matters on the file particularly vis-à-vis the VHI, their only competitor in the Irish private
         health insurance market, rather than with regard to Ireland itself.
      
      31     As the President of the Third Chamber, Extended Composition, of the Court of First Instance has already stated in his order
         in this case of 2 April 2004 (see paragraph 7 above), it is true that statutory links exist between the Irish State and the
         VHI in that, in particular, the Irish health minister has a decisive influence on the composition of its board and may require
         from it any information in connection with its activities. One cannot therefore exclude a certain alignment of the general
         management of the VHI with the political guidance issued by the competent Irish minister and, as a consequence, a certain
         concordance of the general positions between the VHI and Ireland. Nevertheless, that provides no ground for inferring that
         the respective interventions in these proceedings by Ireland and the VHI are necessarily perfectly in accord with each other
         (see order in BUPA v Commission, paragraph 9), and that, therefore, the interveners are likely to exchange between themselves, in that regard, any information,
         even if confidential, concerning the case in hand. Moreover, apart from the fact that the VHI constitutes a body under a certain
         amount of control by the Irish State, the applicants have not provided any relevant evidence to support the conclusion that
         the VHI or its board would be able to have access to sensitive information which might be communicated to Ireland in the context
         of this case.
      
      32     It should be added in that respect that, if the interveners did exchange certain information which, after challenge by the
         opposing party, had been communicated to them by the Court of First Instance on an individual basis and solely for the purposes
         of defending their own legitimate interests in the present proceedings, that would, in any event, be inadmissible and constitute
         a serious undermining of the requirements of the sound administration of justice and, to the extent that a Member State was
         involved, constitute a breach of the duty of loyalty under Article 10 EC.
      
      33     Therefore, the application for confidential treatment of the passages revealing the content of discussions between BUPA Ireland
         and the HIA, including the information concerning BUPA Ireland’s business and communicated by the latter to the HIA at those
         meetings, must be dismissed. It is therefore not necessary to rule as to whether some of that information has in any event
         already lost its confidentiality following publication in the Irish media and the mentioning of that information by the Commission
         in its defence, paragraph 16, the communication of which to Ireland the applicants did not oppose. 
      
       The alleged confidentiality of the information concerning the possibility of BUPA Ireland having to leave the Irish market
            and concerning its likely commercial strategy after the implementation of the RES
      34     Concerning the alleged danger of BUPA Ireland having to leave the Irish market after the introduction of the RES, Ireland
         has rightly argued that that risk has been widely reported in the Irish media, notably at the instigation of BUPA Ireland
         itself, as is confirmed by articles which appeared in the Irish Independent on 24 June 2002 and the Irish Medical News on 29 October 2002. In fact, the relevant passages in the application and its annexes essentially accord, in their substance,
         with the statements reproduced in the Irish press. Those statements have therefore lost their confidentiality in any event,
         and no longer warrant specific protection by the Court of First Instance. The same applies to the applicants’ statements as
         to their envisaged commercial strategy after the introduction of the RES, since that strategy consists precisely in the possibility
         of leaving the Irish market.
      
      35     Therefore, the applications for confidential treatment of the statements concerning the risk of BUPA Ireland having to leave
         the Irish market and its likely commercial strategy after the implementation of the RES must be dismissed.
      
       The alleged confidentiality of the information contained in tables 2.1 and 2.2 of the NERA report
      36     Concerning the information reproduced in tables 2.1 and 2.2 of the NERA report, the applicants essentially maintain that it
         falls within the category of ‘extensive information of an operational nature’, including details concerning BUPA’s revenues
         and claims frequency, the divulging of which, ‘taken with other information’ might allow its profitability to be estimated.
      
      37     As a preliminary remark, it should be noted that it is not clear from the documents on file whether the information contained
         in the abovementioned tables has already formed the subject-matter of exchanges of views between BUPA Ireland and the HIA,
         in which case they would in any event have lost their confidentiality vis-à-vis Ireland (see above, paragraph 26 et seq.).
         Further, it cannot be denied that the data treated by NERA in those tables fall within the commercial activity of BUPA Ireland
         on the Irish private health insurance market, and are therefore capable in principle of constituting business secrets.
      
      38     However, it is clear that those tables contain only aggregate data, reproduced in the form of graphs, concerning BUPA Ireland’s
         commercial activities in 2002, such as the average age of persons insured with BUPA Ireland, the premiums paid for ‘BUPA plans’
         and the frequency of claims. The applicants have not conclusively established how, on the basis of those aggregate data, which
         are, moreover, of a certain age, it is conceivable that a third party might deduce concrete information, harmful to their
         commercial interests, as to the turnover, accounts and, finally, current profitability of BUPA Ireland (see also the order
         of the Court of First Instance of 19 June 1996 in Joined 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 NMH Stahlwerke and Others v Commission [1996] ECR II-537, paragraph 24). Nor, finally, have the applicants explained to what extent the combining of that information
         ‘taken with other information’, the possible content of which they do not specify, might enable a third party to reconstitute
         the profitability of BUPA Ireland’s current commercial activity.
      
      39     In those circumstances, the applicants’ request to exclude tables 2.1 and 2.2 of the NERA report from the file documents to
         be communicated to Ireland must be dismissed. As regards the argument by Ireland that even wider access to information concerning
         BUPA Ireland’s economic performance is necessary for the purposes of these proceedings, that argument clearly has no connection
         with the application for confidential treatment that is the subject-matter of this order, and cannot therefore be accepted.
      
       Costs
      40     Costs are reserved.
      On those grounds,
      THE PRESIDENT OF THE THIRD CHAMBER (EXTENDED COMPOSITION) OF THE COURT OF FIRST INSTANCE
      hereby orders:
      1.      There is no need to rule on the merits of the applicants’ applications for confidential treatment of 22 January and 3 February
            2004 in relation to the Kingdom of the Netherlands and the VHI.
      2.      The applicants’ application for confidential treatment in relation to Ireland is rejected.
      3.      A complete set of the procedural documents, as communicated by the applicants to the Court of First Instance, shall be served,
            under the authority of the registrar, on Ireland.
      4.      The interveners will be set a time-limit, under the authority of the registrar, for the submission of a statement in intervention.
      5.      Costs are reserved.
      Luxembourg, 4 March 2005.
      
               H. Jung
            
             
            
                     M. Jaeger
            
         
               Registrar
            
             
            
                     President
            
         * Language of the case: English.