CELEX: 62012TJ0341
Competition
Administrative procedure
European market for hydrogen peroxide and perborate
Publication of a decision finding an infringement of Article 81 EC
Rejection of a request for confidential treatment of information supplied to the Commission pursuant to its Leniency Notice
Obligation to state reasons
Confidentiality
Professional secrecy
Legitimate expectations

Background to the dispute
On 3 May 2006, the Commission of the European Communities adopted Decision C(2006) 1766 final relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, Eka Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret SA, Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/38.620 — Hydrogen Peroxide and Perborate) (‘the PHP Decision’).
In the PHP Decision, the Commission found, in particular, that Degussa AG, which became Evonik Degussa GmbH, the applicant, had participated in an infringement of Article 81 EC on the territory of the European Economic Area (EEA), with 16 other companies active in the hydrogen peroxide and perborate sector. As the applicant had been the first company to contact the Commission, in December 2002, in application of the Commission’s Notice on immunity from fines and reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
; ‘the 2002 Leniency Notice’) and had, on that occasion, fully cooperated and provided the Commission with all the information in its possession concerning the infringement, it was granted complete immunity from fines.
In 2007, a first non-confidential version of the PHP Decision was published on the website of the Commission’s Directorate-General (DG) ‘Competition’ (‘DG COMP’).
In a letter to the applicant dated 28 November 2011, the Commission informed the applicant that it intended to publish a new, more complete, non-confidential version of the PHP Decision, setting out the entire content of that decision apart from the confidential information. On that occasion, the Commission asked the applicant to identify the information in the PHP Decision in respect of which is proposed to request confidential treatment.
Being of the view that that more complete non-confidential version contained confidential information or business secrets, the applicant informed the Commission, in a letter of 23 December 2011, that it objected to the proposed publication. In support of its objection, the applicant claimed, more particularly, that that non-confidential version contained a significant amount of information which it had sent to the Commission under the leniency programme, and also the names of a number of its collaborators and information concerning its business relations. In the applicant’s contention, the proposed publication would thus fail to have regard, in particular, to the principles of protection of legitimate expectations and equal treatment and would be liable to have an adverse effect on the Commission’s investigations.
By letter of 15 March 2012, the Commission informed the applicant that it agreed to delete from the new non-confidential version to be published all the information that would directly or indirectly allow the source of the information communicated pursuant to the 2002 Leniency Notice, and likewise the names of the applicant’s collaborators, to be identified. On the other hand, the Commission considered that there was no reason to grant the benefit of confidentiality to the other information in respect of which the applicant had requested confidential treatment.
Taking advantage of the possibility provided for in Decision 2011/695/EU of the President of the Commission of 13 October 2001 on the function and terms of reference of the hearing officer in certain competition proceedings (
OJ 2011 L 275, p. 29
; ‘the decision on the function and terms of reference of the hearing officer’), the applicant referred the matter to the hearing officer, requesting him to exclude from the non-confidential version to be published all information supplied by the applicant pursuant to the 2002 Leniency Notice.
The contested decision
By Decision C(2012) 3534 final of 24 May 2012 (‘the contested decision), the hearing officer, acting on behalf of the Commission, rejected the applicant’s requests for confidential treatment and, in consequence, authorised publication of information communicated by the applicant to the Commission with a view to benefiting from the Commission’s leniency programme.
In the contested decision, the hearing officer first of all referred to the limits of his terms of reference, which enabled him only to consider whether information should be regarded as confidential and not to remedy an alleged breach of the applicant’s legitimate expectations of the Commission.
The hearing officer further noted that the applicant’s only reason for objecting to the publication of a new, more complete version of the PHP Decision was that it contained information supplied pursuant to the 2002 Leniency Notice and that the communication of such information to third parties was likely to be detrimental to it in the context of actions for damages brought before it before the national courts. In the hearing officer’s view, the Commission has a wide discretion to decide to publish more than the essential part of its decisions. In addition, references to documents in the administrative procedure are not in themselves business secrets or other confidential information.
The hearing officer took the view that the applicant had not shown that the publication of information which it had communicated to the Commission with a view to benefiting from leniency on the Commission’s part was likely to cause it serious harm. The interest of an undertaking on which the Commission has imposed a fine for an infringement of competition law in the details of the unlawful conduct of which it is accused not being disclosed to the public does not in any event merit special protection. The hearing officer observed, on that point, that actions for damages formed an integral part of EU competition policy and that, accordingly, the applicant could not claim a legitimate interest in being protected against the risk of being subject to such actions as a result of its participation in the cartel to which the PHP Decision related.
The hearing officer also considered that he was not competent to answer the applicant’s argument that disclosure to third parties of the information which it had communicated to the Commission in the context of the leniency programme would harm that programme, as such a question was outside the scope of his terms of reference. He observed, in that regard, that in accordance with the case-law it is for the Commission alone to assess the extent to which the factual and historical context of the impugned conduct must be brought to the knowledge of the public, provided that it does not contain confidential information.
Last, the hearing officer stated that, since his terms of reference under Article 8 of the decision on the function and terms of reference of the hearing officer were limited to assessing the extent to which information might constitute a business secret or should be given confidential treatment for some other reason, he was not competent to give a ruling on the applicant’s argument that publication of the information which it had communicated under the leniency programme would have constituted an unwarranted difference in treatment by comparison with the other participants in the infringement penalised in the PHP Decision and would thus have disregarded the principle of equal treatment.
Procedure and forms of order sought
By application received at the Court Registry on 2 August 2012, the applicant brought the present action.
By order of 16 November 2012 in Case T‑341/12 R
Evonik Degussa
v
Commission
, not published in the ECR, the President of the Court decided to suspend the operation of the contested decision and to order the Commission to refrain from publishing a version of the PHP Decision that was more complete, in relation to the applicant, than the version available on DG COMP’s website since 2007.
The composition of the chambers of the Court was altered and the Judge-Rapporteur was assigned to the Third Chamber, to which this case was therefore assigned.
On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, asked the Commission to produce a document. The Commission produced the requested document within the prescribed period.
The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 9 April 2014.
On the day of the hearing, the applicant lodged a copy of a letter from the Commission dated 11 February 2014 concerning arbitration proceedings pending in the United States of America. When invited by the President of the Third Chamber to comment on that new document within one week of the hearing, the Commission confirmed in a letter received at the Court Registry on 15 April 2014 that it objected to its being taken into consideration in these proceedings, as it had been lodged out of time.
The applicant claims that the Court should:
—
annul the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
The applicant raises, in essence, five pleas in support of its action. They allege, first, infringement of Article 8 of the decision on the function and terms of reference of the hearing officer and breach of the right to good administration and the right to be heard; second, failure to state sufficient reasons; third, breach of the professional secrecy protected by Article 339 TFEU and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and also of the confidentiality the information which the Commission proposes to publish; fourth, breach of the principles of legitimate expectations, legal certainty and equal treatment; and, fifth, breach of the ’specific purpose’ principle in Article 28(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (
OJ 2003 L 1, p. 1
), and also breach of paragraph 48 of the Commission’s Notice on the rules for access to the Commission file in cases pursuant to Articles [101 TFEU] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (
OJ 2005 C 325, p. 7
).
First plea, alleging infringement of Article 8 of the decision on the function and terms of reference of the hearing officer and breach of the right to good administration and the right to be heard
This plea consists, in essence, of two parts. In the first part, the applicant takes issue with the hearing officer for not having examined the substance of the arguments alleging breach of the principles of legitimate expectations and equal treatment which the applicant had submitted to him, or the argument that the publication proposed by the Commission would breach the principle set out in Article 28(1) of Regulation No 1/2003, that information collected pursuant to Articles 17 to 22 of that regulation is to be used only for the purpose for which it was acquired. In considering only whether the information which in the applicant’s submission cannot be published was or was not confidential, the hearing officer improperly restricted the scope of the control which he is supposed to carry out pursuant to Article 8 of the decision on the function and terms of reference of the hearing officer.
In the second part, the applicant maintains that, in refraining from ruling on some of the arguments which it had submitted, the hearing officer adopted the contested decision in breach of the applicant’s right to good administration, guaranteed in Article 41(1) of the Charter of Fundamental Rights of the European Union. That omission also constitutes a breach of the applicant’s right to be given a proper hearing in the context of an administrative procedure, enshrined in the first indent of Article 41(2) of the Charter of Fundamental Rights.
The Commission disputes those arguments.
As regards the first part, it should be observed, as a preliminary point, that by this first plea the applicant takes issue with the hearing officer, in essence, for having declined to answer three separate arguments which the applicant had raised before him, each of them being, in the applicant’s submission, capable of preventing the Commission’s proposed publication of a more complete non-confidential version of the PHP Decision. Those arguments relate, in the first place, to breach of the ‘purpose’ principle set out in Article 28(1) of Regulation No 1/2003, according to which information collected by the Commission pursuant to Articles 17 to 22 of that regulation can be used only for the purpose for which it was acquired; in the second place, to breach of the legitimate expectation which the applicant placed in the fact that the information at issue would not be published; and, in the third place, to breach of the principle of equal treatment owing to the fact that that publication would have the effect of putting the applicant in a less favourable situation than other addressees of the PHP Decision who had not cooperated with the Commission in the context of actions for damages brought by victims of the infringement of competition law penalised in that decision.
According to Article 1(1) of the decision on the function and terms of reference of the hearing officer, the powers and functions of hearing officers for competition proceedings are laid down in that decision.
Article 8(1) to (3) of the decision on the function and terms of reference of the hearing officer provides as follows:
‘1.   Where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by [DGCOMP]. A time-limit shall be fixed within which the undertaking or person concerned may submit any written comments.
2.   Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. If the hearing officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification.
3.   Paragraphs 1 and 2 shall apply
mutatis mutandis
to the disclosure of information by publication in the Official Journal of the European Union.’
As regards, first of all, the complaint that the hearing officer did not examine the argument relating to breach of the ‘purpose’ principle, if it may be considered that such an argument was specifically raised before him by the applicant in its request of 10 April 2012, the Court agrees with the Commission’s view that the contested decision does essentially answer that question. At paragraph 19 of the contested decision, the hearing officer stated that, subject to observing professional secrecy, it was for the Commission to determine which information it proposed to publish in addition to the essential content of the decisions which it adopted pursuant to Article 23 of Regulation No 1/2003. At paragraphs 20 and 21 of the contested decision, the hearing officer also rejected the applicant’s argument that such publication was precluded in the case of information which had been communicated to the Commission with a view to benefiting from its leniency programme.
Thus, without prejudice to the examination of the validity of that approach in the context of the fifth plea, it follows implicitly but necessarily from the contested decision that publication of information communicated by an undertaking seeking the benefit of the leniency programme, even where that undertaking has expressed its disagreement with such publication, does not constitute a breach of the principle set out in Article 28(1) of Regulation No 1/2003, that information obtained by the Commission during an investigation of an infringement of competition law can be used only for the purpose for which it was acquired.
As regards, next, the arguments relating to the fact that the hearing officer did not respond to the objections alleging breach of the legitimate expectation placed in the fact that the publication at issue would not take place and also breach of the principle of equal treatment, it should be observed that those arguments were indeed submitted by the applicant in its request to the hearing officer of 10 April 2012.
It is therefore necessary to determine whether the hearing officer was correct, at paragraphs 15 and 24 of the contested decision, to consider that he was not competent to rule on those arguments, in view of the limits of the terms of reference entrusted to him pursuant to Article 8 of the decision on the function and terms of reference of the hearing officer.
In that regard, it should first of all be observed that the Court has held that, where the hearing officer took a decision pursuant to the third paragraph of Article 9 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (
OJ 2001 L 162, p. 21
), which has been replaced by Article 8(3) of the decision on the function and terms of reference of the hearing officer, he was required not merely to examine whether the version of a decision penalising an infringement of Article 81 EC which he was required to examine contained business secrets or other information enjoying similar protection, but also to check whether that version contained other information which could not be disclosed to the public either on the basis of rules of Community law affording such information specific protection or because it was information of the kind covered by the obligation of professional secrecy (Case
T-198/03
Bank Austria Creditanstalt
v
Commission
[2006] ECR II-1429
, paragraph 34, and Case
T-474/04
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
[2007] ECR II-4225
, paragraph 66).
It also follows from the same case-law that those rules affording special protection to certain information include Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (
OJ 2001 L 8, p. 1
) and Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (
OJ 2001 L 145, p. 43
), which provide for exceptions to the right of access to documents of the institutions laid down in Article 2(1) of the latter regulation (judgment in
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
, paragraph 33 above, paragraph 64).
It should be pointed out, next, that at the time when the judgments in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, and in
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
, paragraph 33 above, were delivered, Article 9 of Decision 2001/462 referred only to the protection to be afforded to the business secrets of undertakings being investigated in connection with an infringement of competition law. That provision thus differed, on that point, from Article 8 of the decision on the function and terms of reference of the hearing officer, which replaces it, since Article 8 of the latter decision refers both to the business secrets of undertakings and to other confidential information.
As pointed out at paragraph 33 above, the Court none the less gave Article 9(3) of Decision 2001/462, in the case-law cited at that paragraph, an interpretation that went further than the wording of that provision, based on an analysis of its context and objectives.
Thus, the Court first of all observed that the aim of Article 9 of Decision 2001/462 was to provide, on a procedural level, for the protection required by Community law of information which has come to the knowledge of the Commission in the context of proceedings applying the competition rules (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 28). Referring in that regard to the protection of information which, by its nature, is covered by the obligation of professional secrecy pursuant to Article 20(2) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), the Court stated that, in accordance with the case-law, the sphere of information covered by the obligation of professional secrecy extended beyond business secrets of undertakings (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 29).
The Court then observed, first, that the first two paragraphs of Article 9 of Decision 2001/462 concerned the disclosure of information to persons, undertakings or associations of undertakings with a view to exercise by them of their right to be heard in the course of proceedings applying the competition rules and, second, that the procedure laid down in those two paragraphs only applied
mutatis mutandis
to the disclosure of information as a result of its publication in the Official Journal of the European Union, referred to in the third paragraph of that provision. That meant, in particular, that when the hearing officer took a decision under the third paragraph of Article 9 of Decision 2001/462 he must ensure compliance with the obligation of professional secrecy in relation to information not requiring protection as special as that afforded to business secrets, and particularly information that might be communicated to third parties having a right to be heard in respect thereof but the confidential nature of which prevented disclosure to the public (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 31).
The Court further justified its broad interpretation of Article 9 of Decision 2001/462 by referring to recital 9 in the preamble to that decision, which states that ‘[w]hen disclosing information on natural persons, particular attention should be paid to Regulation No 45/2001’ (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 32).
Such findings remain valid now that the decision on the function and terms of reference of the hearing officer is in force.
Like that of Article 9 of Decision 2001/462, the aim of Article 8 of the decision on the function and terms of reference of the hearing officer is to provide, on a procedural level, for the protection required by EU law of information which has come to the knowledge of the Commission in the context of proceedings applying the competition rules, now provided for in Article 28(2) of Regulation No 1/2003. Thus, Article 8 draws the same distinction as that referred to in paragraph 38 above between the protection of the confidentiality of information vis-à-vis third parties having the right to be heard in the course of proceedings applying the competition rules and the wider protection which must be observed when publication in the Official Journal is envisaged. In addition, recital 23 in the preamble to the decision on the function and terms of reference of the hearing officer substantially reproduces the content of recital 9 in the preamble to decision 2001/462, referring to the need for the hearing officer to take account, in particular, of Regulation No 45/2001 when disclosing information about natural persons.
In the present case, however, the principles of legitimate expectations and equal treatment, on which the applicant relied before the hearing officer, are not rules intended to afford specific protection against disclosure to the public of information such as that communicated to the Commission by the applicant in order to obtain leniency from the Commission.
Unlike, for example, the rules in Regulation No 45/2001 concerning the treatment of personal data by the EU bodies or institutions, or in Article 4 of Regulation No 1049/2001 concerning exceptions to the right of access to documents, such principles are not specifically intended to protect the confidentiality of information or documents. As those principles do not therefore come, as such, within the protection which EU law confers on information which came to the knowledge of the Commission in the context of proceedings applying the competition rules, they fall outside the framework of the task entrusted to the hearing officer under Article 8 of the decision on the function and terms of reference of the hearing officer.
It follows that the hearing officer was correct, in the present case, to decline competence to answer the objections to the publication at issue raised by the applicant on the basis of the principles of legitimate expectations and equal treatment.
As regards, moreover, the complaint that the contested decision is vitiated by a manifest error of assessment since none of the Commission’s services examined the applicant’s objections of principle to the publication of a more complete non-confidential version of the PHP Decision, submitted by the applicant in support of the first plea, it cannot succeed either.
As the Commission correctly maintains, that complaint rests on the wrongful premiss that the Commission generally failed to adopt a position in that respect.
Thus, in the letter sent to the applicant by DG COMP on 28 November 2011, the Commission stated that it had decided to publish a new, more complete non-confidential version of the PHP Decision, for reasons of transparency.
Furthermore, it is apparent from DG COMP’s letter to the applicant of 15 March 2012 that, when examining the objections of principle to the publication at issue, the Commission considered that it was incumbent on it to weigh up, in particular, the protection of the objectives of its investigations, referred to in the exception to the principle of transparency provided for in the third indent of Article 4(2) of Regulation No 1049/2001, with the legitimate interest of the parties. The Commission stated, moreover, that a document, such as a statement made by an undertaking, did not benefit from protection solely because it had been communicated to the Commission in the context of a leniency application and that the proposed publication did not harm the objectives of its investigations. It further emphasised that it was necessary to take into account, in this instance, Article 4(7) of Regulation No 1049/2001, under which the exceptions to the right of access to documents as laid down in the first three paragraphs of that article were to apply only for the period during which protection was justified on the basis of the content of the document. The Commission inferred that the publication at issue did not entail a breach of the applicant’s legitimate expectation.
Contrary to the applicant’s assertion, therefore, the Commission did indeed examine the objections of principle to the publication at issue formulated by the applicant.
Last, in the light of the findings made at paragraphs 30, 44 and 49 above, the second part of the plea, whereby the applicant maintains that the hearing officer’s refusal to respond to certain of its objections to the publication at issue entails a breach of the applicant’s right to good administration, guaranteed in Article 41(1) of the Charter of Fundamental Rights, and also of its right to be given a proper hearing in an administrative procedure, enshrined in Article 41(2)(a) of the Charter of Fundamental Rights, must also be rejected.
It follows that the first plea is unfounded and must be rejected.
Second plea, alleging failure to state sufficient reasons
The applicant takes issue with the hearing officer for not having stated sufficient reasons for the contested decision, contrary, first, to Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights, and, second, to Article 8(2) of the decision on the function and terms of reference of the hearing officer. Thus, in the applicant’s submission, the contested decision does not specify what, more than five years after the publication of a first non-confidential version of the PHP Decision, justifies the publication of a more complete non-confidential version of that decision. While the applicant acknowledges that the Commission referred to reasons of transparency in its letter to the applicant of 28 November 2011, that reference alone does not enable it to understand the reasons that led the Commission to consider that the first non-confidential version published on its website in 2007 did not satisfy that requirement, or no longer did so. A specific statement of reasons on that point, in the contested decision itself, was all the more necessary because the Commission’s decision to publish a more complete non-confidential version of the PHP Decision marked a departure from previous administrative practice.
The Commission contends that, seen in its context, the contested decision is sufficiently reasoned in that respect.
According to consistent case-law, the purpose of the obligation to give reasons for an individual decision is to enable the Courts of the European Union to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; however, the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted (Case
322/81
Nederlandsche Banden-Industrie-Michelin
v
Commission
[1983] ECR 3461
, paragraph 14, and Case
T-49/95
Van Megen Sports
v
Commission
[1996] ECR II-1799
, paragraph 51).
Thus, although, under Article 296 TFEU, the Commission is required to mention the elements of fact and of law that form the legal basis of the decision and the considerations that led it to its adoption, it is not necessary for the statement of reasons to specify all the relevant matters of fact and of law, since the question whether the statement of reasons on which a measure is based satisfies the requirement of that provision must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case
C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719
, paragraph 63 and the case-law cited; Case
T-53/12
CF Sharp Shipping Agencies
v
Council
[2012] ECR, paragraph 37). In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (Case T-465/08
Czech Republic
v
Commission
[2011] ECR II-1941
, paragraph 163).
That obligation to state reasons is implemented in Article 8(2) of the decision on the function and terms of reference of the hearing officer, read with paragraph 3 of that provision, as regards the decisions which the hearing officer is required to adopt on requests for the confidential treatment of certain information in proceedings applying the competition rules.
In the present case, it is apparent both from the applicant’s letter of 23 December 2011 to DG COMP and from its letter of 10 April 2012 to the hearing officer that the applicant maintained, during the administrative procedure, that the publication of a new version of the PHP Decision containing information which it had communicated voluntarily with a view to benefiting from the 2002 Leniency Notice would constitute a breach of its legitimate expectations and, moreover, would not be justified by any overriding public interest. It also follows from those letters that the applicant claimed that such publication would mark a departure from the Commission’s previous administrative practice, which consisted in not disclosing to third parties the information communicated to it by undertakings in the context of the leniency programme.
On that point, it should be observed that, although the hearing officer did not specifically respond on the substance to each of those arguments, his reason for not doing so was, as follows essentially from the examination of the first plea, in order to observe the limits of the terms of reference conferred on him by Article 8 of the decision on the function and terms of reference of the hearing officer.
However, as was already pointed out at paragraph 49 above, the contested decision was adopted following an administrative procedure during which the Commission was called upon to respond to the objections of principle to the proposed publication raised by the applicant, which were outside the competences of the hearing officer.
In those circumstances, and in order to ensure effective judicial protection for the applicant, it is appropriate to look at the contested decision in the context which led to its adoption and, accordingly, to consider that that decision includes implicitly, but necessarily, the positions adopted by the Commission concerning the proposed publication, expressed through DG COMP, in so far as those positions concern aspects not falling within the terms of reference of the hearing officer.
When seen in that light, the contested decision enables the applicant to understand the matters of fact and of law on which its legal justification depends.
Thus, in the first place, as already pointed out at paragraph 47 above, the Commission, in the letter sent to the applicant by DG COMP on 28 November 2011, justified its intention to publish a more complete non-confidential version of the PHP Decision by reference to an objective of transparency.
In the second place, while it is true that the hearing officer declined competence to examine a possible breach of the applicant’s legitimate expectations, on the ground that such an examination would have exceeded the limits of his terms of reference under Article 8 of the decision on the function and terms of reference of the hearing officer, the Commission, in its letter of 15 March 2012 to the applicant, none the less expressly answered the applicant’s argument that the publication at issue would constitute a breach of its legitimate expectations.
As already pointed out at paragraph 48 above, it is apparent from that letter, in essence, that when analysing the objections of principle to the publication at issue, the Commission considered that it must weigh up, in particular, the protection of the objectives of its investigations, referred to in the exception to the principle of transparency provided for in the third indent of Article 4(2) of Regulation No 1049/2001, with the legitimate interests of the parties. The Commission also stated that a document did not benefit from protection solely because it had been communicated in the context of a leniency application and that the proposed publication did not harm the objectives of its investigations. It also emphasised that it was appropriate to take into account, in this case, Article 4(7) of Regulation No 1049/2001, which provides that the exceptions to the right of access to documents as laid down in the first three paragraphs of that article were to apply only for the period during which the protection provided for therein was justified on the basis of the content of the document. The Commission inferred that the publication at issue did not entail a breach of the applicant’s legitimate expectation.
In the third place, the contested decision mentions a number of factors in support of the rejection of the applicant’s request for confidentiality. The hearing officer emphasised, as a preliminary point, that references to documents in the administrative file did not in themselves constitute business secrets or other confidential information. The rejection of the requests for confidentiality was then justified, first, by the wide discretion which the Commission enjoys to publish more than the essential part of the decisions which it adopted pursuant to Article 23 of Regulation No 1/2003; second, by the fact that the applicant had not shown that publication of the information which it had communicated to the Commission pursuant to the 2002 Leniency Notice might cause it serious harm; and, third, by the fact that, even on the assumption that such a risk were established, it followed from the case-law that the applicant’s interest in the details of its participation in an infringement not being made public was not worthy of protection. The hearing officer added that that case-law applied in the present case by analogy since, in spite of the fact that the applicant had not been ordered to pay a fine in the PHP Decision, its participation in the single and continuous infringement of Article 81 EC and of Article 53 of the EEA Agreement referred to in that decision had none the less been proved.
Last, the findings made in the preceding paragraph also lead the Court to reject the applicant’s argument that the contested decision does not explain what justifies the derogation in this case from the Commission’s previous administrative practice. Even on the assumption that the previous administrative practice to which the applicant refers, which is examined in the context of the fourth plea, were established, the contested decision, seen in the context in which it was adopted, provides sufficient information to enable the applicant to understand the reasons why the Commission decided to depart from it in the present case.
Accordingly, the applicant’s claim that the contested decision is insufficiently reasoned cannot be upheld and the second plea must be rejected as unfounded.
Third plea, alleging breach of professional secrecy and also breach of the confidentiality of information which the Commission proposes to publish
The applicant claims that in the contested decision the hearing officer disregarded the confidentiality of the information communicated voluntarily to the Commission during its investigation. For that reason, the contested decision infringes both Article 339 TFEU and Article 8 of the ECHR.
In the applicant’s submission, such confidentiality results first of all from the fact that the information originates in statements made by the applicant itself or by other undertakings under the leniency programme, indeed in documents sent voluntarily to the Commission during the investigation. Such information forms part of the applicant’s private activities, protected by Article 8(1) of the ECHR, independently even of their content. It follows from Case
145/83
Adams
v
Commission
[1985] ECR 3539
, moreover, that special protection must be afforded to information and documents communicated voluntarily to the Commission on condition that it would not disclose them.
The applicant maintains, next, that the information in respect of which it seeks confidential treatment are covered by the professional secrecy protected by Article 339 TFEU and also by Article 30(2) of Regulation No 1/2003, since it satisfies the three conditions identified for that purpose in the judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above. Thus, the information is known by only a limited number of persons, its disclosure would be likely to cause the applicant serious harm and the non-disclosure of the information is objectively required, even when contrary interests arguing in favour of its disclosure are taken into account.
The applicant observes, in that regard, that the information publication of which is proposed in the present case and which is not included in the provision non-confidential version of the PHP Decision published in 2007 reveals in detail not only the anti-competitive agreements and exchanges of information referred to in the PHP Decision, but also the way in which the applicant participated in them. That information is accompanied by numerous citations taken from the documents produced by the leniency applicants and also aids to interpretation supplied by the Commission. Such publication must be assimilated to the direct publication of the statements of the applicant and the other addressees of the PHP Decision who made leniency statements, of such a kind as to cause serious harm to the applicant’s reputation and to affect its position on the market. The applicant further maintains that the proposed publication would be more harmful to it than to the other undertakings that participated in the infringement penalised in the PHP Decision, since, in order to obtain immunity from a fine, it had no choice other than to acknowledge unreservedly its own participation in the infringement and, so far as possible, to help the Commission to shed light on the facts.
The applicant maintains that it also follows from the case-law that information relating to the business relations of companies, to the prices of their products, to the structure of their costs, to market shares or to similar matters, such as the information publication of which is envisaged in the present case, are part of the commercial interests of those companies and worthy of protection, even when they relate to conduct recognised as unlawful. In addition, the proposed publication would expose the applicant to a greater risk of being ordered to pay damages in actions before the national courts. The applicant emphasised at the hearing that it should be protected against such actions for damages.
The applicant claims, moreover, that the hearing officer’s rejection of its requests for confidentiality ignores the general presumption of illegality attaching to the publication of information originating in statements made by undertakings pursuant to the 2002 Leniency Notice and in documents voluntarily communicated to the Commission by those undertakings. It is necessary to ensure that the strict rules governing the treatment of information which the Commission obtains in the context of cartel proceedings, in particular the rules laid down in the 2002 Leniency Notice, are not rendered wholly ineffective by means of publications in the Official Journal. Likewise, the applicant emphasised at the hearing that the Commission cannot, by means of publication, render ineffective the protection against the disclosure of certain information afforded by Article 4 of Regulation No 1049/2001.
The applicant further observes that the contested decision does not refer to any overriding public interest that would justify the proposed publication, in spite of the confidential nature of the information at issue. As the public has already been sufficiently informed through the publication of a non-confidential version in 2007, such a public interest is in any event non-existent in the present case. As for any interest that the victims of the infringement penalised in the PHP Decision might have in the publication of a more complete version of that decision, it would be a strictly private interest. On the latter point, the applicant further submitted at the hearing that the contested decision did not in any way explain how the proposed publication would be necessary in order to ensure the right of the victims of the cartel referred to in the PHP Decision to an effective remedy.
The Commission disputes those arguments.
This plea consists, in essence, of three parts, alleging, first, breach of the applicant’s business secrets or at least of the confidentiality of business information relating to it; second, breach of the confidentiality of information communicated to the Commission under the leniency programme; and, third, breach of the right to protection of private life.
In that regard, the Court observes, as a preliminary point, that the arguments relating to a breach of the legitimate expectation which the applicant claims to have acquired under the 2002 Leniency Notice and the Commission’s previous practice, which are put forward in support of the third plea, are essentially identical the same as part of the argument developed in respect of the fourth plea. Those arguments will therefore be examined in that context.
It should next be borne in mind that, according to Article 339 TFEU, the members of the institutions of the Union, the members of committees, and the officials and other servants of the Union are to be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.
According to Article 28(1) of Regulation No 1/2003, without prejudice to Articles 12 and 15 of that regulation, information collected pursuant to Articles 17 to 22 is to be used only for the purpose for which it was acquired. Article 28(2) of Regulation No 1/2003, which supplements the rule of conduct laid down in Article 339 TFEU in the field of application of that regulation, states, in particular, that, without prejudice to the cooperation between the Commission and the competition authorities of the Member States and the possibility afforded to the addressees of a statement of objections to consult the investigation file, the Commission and those authorities, their officials, servants and other persons working under the supervision of those authorities, and also officials and civil servants of other authorities of the Member States, are not to disclose information acquired or exchanged by them pursuant to that regulation of the kind covered by the obligation of professional secrecy.
Furthermore, pursuant to Article 30(1) of Regulation No 1/2003, the Commission is to publish, inter alia, the decisions whereby it imposes fines on undertakings or associations of undertakings which it finds liable for an infringement of EU law relating to cartels. According to Article 30(2) of that regulation, that publication is to state the names of the parties and the main content of the decision, including any penalties imposed, but must have regard to the legitimate interest of undertakings in the protection of their business secrets.
Last, Article 16(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (
OJ 2004 L 123, p. 18
), provides, in essence, that the Commission is required not to make accessible or to communicate information, including documents, in the investigation file in so far as it contains business secrets or other confidential information of any person.
In the present case, the applicant does not deny having participated in the cartel referred to in the PHP Decision. It maintains, on the other hand, first, that the confidentiality of the information at issue results from the mere fact that it was communicated voluntarily to the Commission, in the context of the leniency programme, and that the proposed publication is thus likely to damage the protection of the objectives of the Commission’s investigations.
Second, it relies, first of all, on the fact that publication of the more complete non-confidential version of the PHP Decision proposed by the Commission would constitute an unwarranted interference with its business interests within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001, in so far as that version contains information relating to the price levels which the applicant charged, to proposed price increases, to its role at meetings between competitors, to the places where those meetings were held and also to the dates of the meetings, to the persons who participated in them and to what was discussed at them. In the applicant’s submission, the proposed publication would thus seriously harm its reputation and would increase the risk that it would face actions for damages brought by victims of the infringement penalised in the PHP Decision or actions for indemnity brought against it by other undertakings that participated in the infringement. It maintains, next, that the information at issue constitutes, in any event, business secrets or at least confidential business information, publication of which is prohibited under Article 28(2) and Article 30(2) of Regulation No 1/2003. It further claims that the protection of court proceedings enshrined in the second indent of Article 4(2) of Regulation No 1049/2001 precludes the publication at issue, in so far as such publication would have the effect of upsetting the equality of arms in the context of civil actions brought before the national courts, in breach of the principle of impartiality enshrined in Article 41 of the Charter of Fundamental Rights. Last, the confidentiality of the information at issue results from the fact that that information, voluntarily communicated to the Commission during the investigation, forms part of the applicant’s private activity and is therefore protected by Article 8(1) of the ECHR.
First part, alleging that the information at issue constitutes business secrets or at least confidential business information
It should be borne in mind that, according to settled case-law, information that was secret or confidential, but dates from five years or more ago and must for that reason be considered historical, is neither secret nor confidential, unless, exceptionally, the applicant shows that, in spite of its age, that information still constitutes essential elements of its commercial position or that of a third party (order in Joined Cases
T-1/89 to T-4/89 and T-6/89 to T-15/89
Rhône-Poulenc and Others
v
Commission
[1990] ECR II-637
, paragraph 23; see order of the President of the Fourth Chamber of the General Court in Case
T-383/03
Hynix Semiconductor
v
Council
[2005] ECR II-621
, paragraph 60 and the case-law cited; and orders of the President of the Eighth Chamber of the General Court of 8 May 2012 in Case T‑108/07
Diamanthandel A. Spira
v
Commission
, not published in the ECR, paragraph 65, and of 10 May 2012 in Case T‑354/08
Diamanthandel A. Spira
v
Commission
, not published in the ECR, paragraph 47).
In the present case, it is not disputed that the information at issue all dates from more than five years ago, most of it even dating from more than 10 years ago. It must be stated that the applicant has put forward no specific argument to show that, in spite of its age, that information still constitutes, now, essential elements of its commercial position or that of a third party. Thus, it has merely asserted that a large number of the passages in the PHP Decision which the Commission proposes to publish, while describing the facts constituting the infringement, contained information relating to the applicant’s business relations and its pricing policy, that the protection of business secrets was not excluded in the case of information relating to unlawful conduct and, last, that the protection to be afforded to business secrets cannot be limited to a strictly-defined period.
It follows that, even on the assumption that some of the information in the PHP Decision which the Commission proposes to publish for the first time may have constituted business secrets at a certain time, it must in any event be considered to be historical and that, moreover, it has not been shown how there would still be any reason to confer on them, exceptionally, the protection afforded on that basis by Article 30(2) of Regulation No 1/2003.
The first part of the plea is therefore unfounded and must be rejected.
Second part, alleging that information communicated to the Commission under the leniency programme is confidential
As the sphere of information covered by the obligation of professional secrecy extends beyond business secrets of undertakings (see, to that effect, judgments in
Adams
v
Commission
, paragraph 69 above, paragraph 34, and
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 29), it is appropriate to determine, without prejudice to the analysis of the merits of the fourth plea, whether, as the applicant maintains, information must be protected on that basis solely because it was communicated voluntarily by an undertaking to the Commission with the aim of benefiting from the leniency programme.
According to the second paragraph of Article 1 TEU, within the European Union decisions are to be taken as openly as possible. That principle is reflected in Article 15 TFEU, which, subject to certain conditions, grants citizens a right of access to documents of the institutions. In accordance with that principle, and in the absence of provisions explicitly ordering or prohibiting publication, the power of the institutions to make acts which they adopt public is the rule, to which there are exceptions in so far as EU law, in particular through provisions ensuring compliance with the obligation of professional secrecy, prevents disclosure of such acts or of information contained therein (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 69).
Neither Article 339 TFEU nor Article 28 of Regulation No 1/2003 expressly indicates what information, apart from business secrets, is to be covered by the obligation of professional secrecy. It cannot be inferred from Article 28(2) of Regulation No 1/2003 that that is the case for all information acquired under that regulation, with the exception of information whose publication is mandatory under Article 30 of that regulation. Like Article 339 TFEU, Article 28 of Regulation No 1/2003, which supplements that provision of primary law and implements it in the field of competition rules applicable to undertakings, prevents only the disclosure of information which is of the kind covered by the obligation of professional secrecy (see, by analogy, judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 70).
Furthermore, it is true that, according to paragraph 75 of the judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, and paragraph 64 of the judgment in
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
, paragraph 33 above, in so far as the confidentiality of certain information is protected by an exception to the right of access to documents laid down in Article 4 of Regulation No 1049/2001, such protection is relevant for the purpose of assessing the Commission’s compliance with the prohibition imposed on it by Article 28(2) of Regulation No 1/2003 of the publication of information which is of the kind covered by the obligation of professional secrecy.
However, after those judgments were delivered, the Court of Justice interpreted Article 4 of Regulation No 1049/2001 as leaving it open to the institutions to base their decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature. That interpretation is necessary where the legislation governing the proceedings also lays down strict rules as regards the treatment of information obtained or established in such proceedings (Case C‑404/10 P
Commission
v
Éditions Odile Jacob
[2012] ECR, paragraphs 108, 116 and 118). That is precisely the case of Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004, which lay down restrictive rules for the use of documents in the file relating to a proceeding under Article 101 TFEU (Case C‑365/12 P
Commission
v
EnBW Energie Baden-Württemberg
[2014] ECR, paragraph 86). In that context, if Article 4 of Regulation No 1049/2001 were to be taken into account as prohibiting the Commission from publishing any information to which it would be entitled to refuse access under that provision, in reliance on a general presumption, Article 30 of Regulation No 1/2003 would be rendered ineffective. Such an interpretation would deprive the Commission of the possibility of publishing even the essential part of its decision, in so far as that essential part must necessarily emerge from the material in the investigation file. Furthermore, it would also have the effect, in practice, of reversing the burden of proof, which, in respect of confidential treatment, is borne by the person requesting such treatment, since it would be sufficient for the latter to rely on the general presumption that the institutions may invoke in the circumstances described above and thereby require the Commission to show that the information at issue may be included in the published version of its decision.
Contrary to the applicant’s substantive contention, the disclosure of information relating to an infringement of EU competition law by publication of a decision penalising that infringement, on the basis of Article 30 of Regulation No 1/2003, cannot in principle be confused with access by third parties to documents in the Commission’s investigation file relating to such an infringement. Thus, in the present case, the publication of the information relating to the facts constituting the infringement which did not appear in the non-confidential version of the PHP Decision published in 2007, if it were to take place, would not result in the communication to third parties of requests for leniency submitted by the applicant to the Commission, of minutes recording oral statements made by the applicant pursuant to the leniency programme, or indeed of documents which the applicant voluntarily submitted to the Commission during the investigation.
It is by reference to principles that the Court must examine the three cumulative conditions that must be fulfilled in order for information to be of the kind to fall within the ambit of professional secrecy and thus to benefit from protection against disclosure to the public, namely, first, that the information must be known only to a limited number of persons; second, that its disclosure must be likely to cause serious harm to the person who provided it or to third parties; and, third, and last, that the interests liable to be harmed by disclosure must, objectively, be worthy of protection (judgments in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 71, and in
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
, paragraph 33 above, paragraph 65).
The Commission maintains that the first condition is not satisfied in the present case, on the ground that the information transmitted to it by the applicant during the investigation was in the file to which the other addressees of the PHP Decision had access.
That argument must be rejected. A distinction must be drawn, in that respect, between the protection that must be afforded to information covered by the obligation of professional secrecy in relation to persons, undertakings or associations of undertakings having a right to be heard in the context of proceedings applying the competition rules, and that which should be afforded to such information in relation to the general public (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 29; see also, by analogy, order of the Vice-President of the Court of Justice in Case C‑278/13 P(R)
Commission
v
Pilkington Group
[2013] ECR, paragraphs 56 and 57).
Thus, the obligation on officials and other servants of the institutions not to disclose information in their possession covered by the obligation of professional secrecy, laid down in Article 339 EC and implemented, in the field of competition rules applicable to undertakings, by Article 28(2) of Regulation No 1/2003, is mitigated in regard to persons on whom Article 27(2) of that regulation confers the right to be heard. The Commission may communicate to such persons certain information covered by the obligation of professional secrecy in so far as it is necessary to do so for the proper conduct of the investigation. In such circumstances, none the less, it must be considered that that information is known only by a restricted number of persons.
It follows that the rule laid down in Article 27(2) of Regulation No 1/2003, which enshrines the right of the parties concerned by the Commission’s investigation to access the administrative file, is without prejudice to the protection against disclosure to the public in general of the information communicated to the Commission during the investigation and covered by the obligation of professional secrecy.
As regards the second condition, the Court finds that it is also satisfied in the present case.
As pointed out at paragraph 83 above, the applicant maintains that the proposed publication would cause it serious harm owing to the damage it would do to its reputation and the increased risk to which such publication would expose it of being ordered to pay damages in actions brought by victims of the infringement penalised in the PHP Decision, or indeed in actions for indemnity brought against it by other undertakings that participated in the infringement.
In that regard, it is common ground that the information at issue, publication of which depends on the outcome of the case, consists essentially in the description of component elements of the infringement of Article 81 EC penalised by the Commission in the PHP Decision.
It must be held, first, as regards the applicant’s assertion that publication of the information at issue would be liable to damage its reputation and to affect its position in business relationships, that a number of passages in the PHP Decision publication of which is envisaged for the first time do shed significantly more detailed light than the non-confidential version of that decision published in 2007 on the applicant’s unlawful conduct. Thus, for example, the passages set out at recitals 115, 116, 123, 126, 130, 140, 147, 149, 150, 151, 169, 170, 188, 189, 201, 211, 233, 260 and 277 to the PHP Decision, publication of which is envisaged by the Commission, permit an understanding of the significant role played by the applicant not only in the initiation of the infringement of Article 81 EC referred to in that decision but also in the continuation of the infringement for almost seven years.
Second, although the Commission did not specifically refer to the objective of facilitating actions for damages before the national courts as one of the reasons on which the contested decision was based, it is none the less clear from the file that the publication of the more complete version of the PHP Decision envisaged by the Commission, in particular the part of that decision relating to the functioning of the cartel, would on the face of it be likely to enable third parties who consider that they have been harmed by the infringement of EU competition law found therein to establish more easily the civil liability of the applicant and other undertakings that participated in the infringement, and also, where appropriate, the extent of that liability.
As illustrated by the passages of the non-confidential version of the PHP Decision referred to at paragraph 102 above, publication of which is envisaged, that version reveals in detail the collusive contacts or anti-competitive agreements in which the applicant participated, mentioning in particular the names of products concerned by those contacts or agreements, figures relating to the prices charged and also the objectives pursued by the participants in terms of price and the allocation of market shares. Such information makes it easier for natural or legal persons claiming to be victims of the infringement of Article 81 EC penalised in the PHP Decision to prove the damage sustained and likewise the causal link between the infringement and the alleged damage.
Accordingly, without its even being necessary, at this stage of the reasoning, to rule on whether, as the applicant claims, the publication of the information at issue would place it at a disadvantage by comparison with other undertakings that participated in the infringement penalised in the PHP Decision, but which did not show the same spirit of cooperation, in any actions for damages, it must be taken as established that the disclosure of the information in respect of which the applicant sought confidential treatment would be of such a kind as to cause it serious harm.
As regards, last, the third condition, it should be borne in mind that it means that the assessment of the confidential nature of information requires the legitimate interests opposing disclosure of the information to be weighed against the public interest that the activities of the institutions take place as openly as possible (judgments in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 71, and in
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
, paragraph 33 above, paragraph 65).
In that regard, as concerns, first of all, the applicant’s argument that the proposed publication would damage its reputation and thus its commercial interests, it should be observed at the outset that the interest of an undertaking which the Commission has fined for an infringement of competition law in the details of the offending conduct of which it is accused not being disclosed to the public does not in principle warrant any particular protection, given the public interest in knowing as fully as possible the reasons behind any Commission action, the interest of the economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and in view of the fact that the undertaking which has been fined may seek judicial review of such a decision (judgments in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 78, and in
Pergan Hilfsstoffe für industrielle Prozesse
v
Commission
, paragraph 33 above, paragraph 72; see also, by analogy, judgment of the EFTA Court of 21 December 2012 in
DB Schenker
v
EFTA Surveillance Authority
, E-14/11, Report of the EFTA Court, p. 1178, paragraph 189).
It follows that the applicant cannot legitimately object to the publication by the Commission of information revealing in detail its participation in the infringement penalised in the PHP Decision on the ground that such publication is liable to alter the image which it enjoys in its business relationships and thus to damage its commercial interests.
As regards, next, the applicant’s argument that the proposed publication would constitute an unwarranted interference with pending or future civil proceedings, since it would deprive the national courts dealing with such actions of the possibility of themselves assessing the need to ask the Commission to transmit to them information such as that at the centre of the present dispute, in application of Article 15(1) of Regulation No 1/2003, it cannot be upheld either.
It must be stated that, by that argument, the applicant seeks, in essence, to protect itself against any order for damages made by a national court on account of its participation in an infringement of Article 81 EC. The interest of a company which has participated in an infringement of Article 81 EC in avoiding such actions is not an interest worthy of protection, particularly in the light of the right which any person has to claim damages for loss caused to him by conduct liable to restrict or distort competition (Case
C-453/99
Courage and Crehan
[2001] ECR I-6297
, paragraphs 24 and 26; Joined Cases
C-295/04 to C-298/04
Manfredi and Others
[2006] ECR I-6619
, paragraphs 59 and 61; and Case C‑199/11
Otis and Others
[2012] ECR, paragraph 41).
It also follows that the complaints which the applicant bases on a possible breach of the principle of impartiality referred to in Article 41 of the Charter of Fundamental Rights and of the principle of equality of arms in the context of national proceedings are unfounded and must be rejected.
Independently of the fourth plea, however, the applicant maintains, in essence, that, by deterring undertakings from reporting infringements of EU competition law of which they are aware and from cooperating with the Commission with a view to benefiting from its leniency programme, the contested decision is liable to harm the effectiveness of the policy of combating infringements of EU law relating to cartels. It submits that that interest is worthy of protection, since the leniency programme has an essential impact on the overall effectiveness of EU law relating to cartels. It further submits in that context, in essence, that since the information which the Commission proposes to publish concerns the applicant more than other undertakings which did not seek leniency, such publication would place it at a disproportionate disadvantage in the context of proceedings before the national court, which would jeopardise the effectiveness of the leniency programme.
In that regard, it should be observed, first, that the effectiveness of leniency programmes could be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities or the Commission were to grant the leniency applicant exemption, in whole or in part, from the fine which they could have imposed (see, by analogy, Case
C-360/09
Pfleiderer
[2011] ECR I-5161
, paragraph 26). A person involved in an infringement of competition law, faced with the possibility of such disclosure, might be deterred from taking advantage of the possibility afforded by such leniency programmes, in view, in particular, of the fact that the documents communicated to the Commission or the statements made to it in that respect are liable to be self-incriminating.
Second, the right to obtain compensation for the damage caused by a contract or by conduct liable to restrict or distort competition can make a significant contribution to the maintenance of effective competition in the European Union (see judgment in
Otis and Others
, paragraph 110 above, paragraph 42 and the case-law cited) and thus plays a part in the attainment of an objective of public interest (see, to that effect and by analogy, judgment in
DB Schenker
v
EFTA Surveillance Authority
, paragraph 107 above, paragraph 132).
It is in application of those principles that the Court of Justice, on a request to give a preliminary ruling in the context of disputes relating to requests by undertakings believing themselves to have been adversely affected by infringements of competition law for access to the investigative files held by national competition authorities, has invited the national courts hearing those disputes to weigh up the interests in favour of disclosure of the information supplied voluntarily by leniency applicants and the interests in favour of the protection of that information (judgments in
Pfleiderer
, paragraph 113 above, paragraph 30, and Case C‑536/11
Donau Chemie and Others
[2013] ECR, paragraphs 30 and 31).
The Court must evaluate the impact of that case-law in the present case.
As already pointed out at paragraph 93 above, the present case concerns not a challenge to a refusal of access to documents relating to a competition procedure, which was central to the cases giving rise to the judgments in
Pfleiderer
, paragraph 113 above, and
Donau Chemie and Others
, paragraph 115 above, but the Commission’s proposed publication of certain information contained in documents or statements submitted or made to it voluntarily by the applicant with a view to benefiting from the leniency programme.
In the present case, the applicant merely maintains, generally, that the publication of the information which it communicated voluntarily during the investigation in the hope of benefiting from the leniency programme would jeopardise the objective of the Commission’s investigations.
In those circumstances, it must be held that, even on the assumption that that assertion were true, it does not reveal the existence of a legal rule that the Commission would have breached merely because the proposed publication of the information supplied in connection with of leniency would have an impact on the implementation of the leniency programme with respect to future investigations. In addition, that particular argument involves the interest of the public in knowing as fully as possible the reasons for any action taken by the Commission, the interest of economic operators in being aware of conduct likely to incur penalties and, last, the interest of the Commission in maintaining the effectiveness of its leniency programme. Those particular interests are not specific to the applicant and it is therefore for the Commission to weigh up, in the circumstances of the case, the effectiveness of the leniency programme, on the one hand, and the interest of the public and economic operators in being aware of the content of its decision and acting in order to protect their rights, on the other.
That conclusion cannot be called into question by the applicant’s argument that, in essence, the information in respect of which it sought confidential treatment is not essential for an understanding of the operative part of the PHP Decision and is therefore not covered by the obligation to publish decisions imposed on the Commission by Article 30(2) of Regulation No 1/2003. Without there even being any need to consider whether that is the case, it is sufficient to state that, in the light of the finding made at paragraph 107 above, that provision is not intended to restrict the Commission’s freedom to publish, of its own volition, a version of its decision that is fuller than the minimum necessary and also to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 79).
As for the applicant’s reference to the Case
C-67/91
Asociación Española de Banca Privada and Others
[1992] ECR I-4785
, the analysis of its relevance in the present case relates to the fifth plea and is therefore examined under that head.
It follows that the second part of the plea is unfounded and must therefore be rejected.
Third part, alleging breach of the right to protection of private life
The applicant claims, last, that there has been a breach of its right to protection of its private life, as guaranteed in Article 8(1) of the ECHR and now enshrined in Article 7 of the Charter of Fundamental Rights.
In that regard, it should be observed, as the applicant submits, that it follows from the judgment in
Commission
v
Éditions Odile Jacob
, cited above, paragraph 76, that the Commission has accepted that the information submitted by undertakings which are parties to a merger must be regarded as relating to their private activity and as such are subject to compliance with the provisions of Article 8 of the ECHR.
However, although such compliance is also binding on the Commission, in principle, where it receives information from undertakings in the context of an investigation concerning an infringement of EU law relating to cartels, a person cannot, according to the well-established case-law of the European Court of Human Rights, rely on Article 8 of the ECHR in order to complain of a loss of reputation which is the foreseeable consequence of his own actions, such as the commission of a criminal offence (see Eur. Court HR, judgments of 27 July 2004 in
Sidabras and Džiautas v. Lithuania
, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII, p. 367;
Taliadorou and Stylianou v. Cyprus
, nos. 39627/05 and 39631/05, § 56, 16 October 2008; and
Gillberg v. Sweden
[GC], no. 41723/06, § 67, 3 April 2012).
It follows that, as the Commission correctly contends, the right to protection of private life guaranteed by Article 8 of the ECHR cannot prevent the disclosure of information which, like that whose publication is envisaged in the present case, concerns an undertaking’s participation in an infringement of EU law relating to cartels, established in a Commission decision adopted on the basis of Article 23 of Regulation No 1/2003 and intended to be published in accordance with Article 30 of that regulation.
The third part must therefore be rejected as unfounded and, accordingly, the third plea must be rejected in its entirety.
Fourth plea, alleging breach of the principles of legitimate expectations, legal certainty and equal treatment
The applicant maintains that the contested decision breaches the legitimate expectation — which it claims to have acquired on the basis of the 2002 Leniency Notice and a number of statements made by the Commission — that the information voluntarily communicated to the Commission in the context of the leniency programme would not be disclosed. The applicant’s legitimate expectation that the information which it communicated voluntarily to the Commission would be treated confidentially applied as much to direct access by third parties to documents or statements in the investigation file as to the disclosure of all or part of the content of such documents or statements by publication of a more complete version of the PHP Decision.
The Commission therefore failed to have regard to that legitimate expectation and its previous administrative practice when it took the decision to publish the information at issue several years after the closure of the procedure that led to the adoption of the PHP Decision. Such publication not only deters undertakings from cooperating voluntarily with the Commission in the context of the investigation and prosecution of infringements of Article 81 EC but, in addition, constitutes a breach of the principle of equality. It is irrelevant, in that regard, that the information at issue is more than five years old.
The applicant contends, moreover, that the legitimate expectation which it acquired in the information at issue not being published also follows from the fact that the Commission has already published on its website, in 2007, a non-confidential version of the PHP Decision and that that publication took most of its requests for confidentiality into account. It follows from that publication, therefore, that the Commission implicitly decided to grant the requests for confidentiality submitted by the applicant. In calling that implicit decision into question, the contested decision fails to have regard not only to the applicant’s legitimate expectation but also to the principle of legal certainty.
The Commission disputes those arguments.
In that regard, it should be emphasised, as a preliminary point, that, in accordance with the reasoning set out at paragraphs 58 to 60 above, the contested decision must be seen in the context of the administrative procedure leading to its adoption and that that decision therefore includes the positions adopted by the Commission concerning the proposed publication, in so far as those positions concern aspects not falling within the terms of reference of the hearing officer.
It follows that the mere fact that the hearing officer was not competent to rule on the arguments which the applicant based on a breach of the principles of legitimate expectations, legal certainty and equal treatment, which emerges in essence from the examination of the first plea, is without prejudice to the jurisdiction of the Courts of the European Union to rule on such arguments in the present action.
As regards the substance, it should be borne in mind that, in adopting rules of conduct such as those contained in the 2002 and 2006 Leniency Notices and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without justification, under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, to that effect and by analogy, Joined Cases
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I-5425
, paragraph 211, and Case
T-73/04,
Carbone-Lorraine
v
Commission
[2008] ECR II-2661
, paragraph 71).
It has also consistently been held that any individual whom an institution of the European Union has led to entertain legitimate expectations by giving him precise assurances may rely on the principle of the protection of legitimate expectations (Case
265/85
Van den Bergh en Jurgens and Van Dijk Food Products (Lopik)
v
EEC
[1987] ECR 1155
, paragraph 44, and Case
C-537/08 P
Kahla Thüringen Porzellan
v
Commission
[2010] ECR I-12917
, paragraph 63).
In the present case, in the first place, the Court must reject the applicant’s argument that the prohibition on the Commission’s making public in any circumstances information contained in applications for leniency or statements made pursuant to the leniency programme results from the 2002 Leniency Notice, or even from the 2006 Leniency Notice.
Admittedly, it follows from points 32 and 33 of the 2002 Leniency Notice that ‘[a]ny written statement made vis-à-vis the Commission [pursuant to that notice] may not be disclosed or used for any other purpose than the enforcement of Article 81 EC’ and that ‘[t]he Commission considers that normally disclosure, at any time, of documents received [in connection with an application for leniency] would undermine the protection of the purposes of inspections and investigations within the meaning of Article 4(2) of Regulation (EC) No 1049/2001’. Admittedly, too, the Commission stated in its 2006 Leniency Notice, which was adopted after the period during which the applicant cooperated in the investigation culminating in the PHP Decision, first, that the initiatives taken by certain undertakings to provide the Commission with their knowledge of a cartel, and of their role therein, ‘should not be discouraged by discovery orders issued in civil litigation’ (point 6) and, second, that ‘[o]ther parties such as complainants will not be granted access to corporate statements’ made in connection with an application for leniency (point 33).
As the Commission correctly observes, however, those various commitments relate only to the disclosure of documents submitted to it voluntarily by undertakings wishing to benefit from the leniency programme and to the disclosure of statements made by those undertakings in that connection. It is in the light of those commitments, moreover, that the Commission’s decision, to which it refers in its written submissions, to refuse EnBW Energie Baden-Württemberg AG access to all the documents in the administrative file relating to the proceedings in Case COMP/F/38.899 — Gas insulated switchgear must be understood.
In addition, those commitments shed light on the reason underlying the Commission’s decision to suppress, in the more complete non-confidential version of the PHP Decision which it proposes to publish, all information that might permit, directly or indirectly, identification of the source of the information communicated to it by the applicant with a view to benefiting from the leniency programme.
In the second place, it should be observed that the distinction reflected in paragraphs 136 and 139 above is not contradicted by the statements made or positions adopted by the Commission to which the applicant refers.
Thus, as regards, first of all, the extract from the letter from the Director General of DG COMP to a judge in the United States of America, reproduced in the newspaper article of 22 December 2011 produced by the applicant, it could not cause the applicant to entertain the legitimate expectation on which it relies. According to that extract, the Director General of DG COMP claimed that the disclosure, in proceedings pending before a court of the United States of America, of the confidential version of a decision whereby the Commission had found an infringement of Article 81 EC would harm the public interests of the European Union and significantly affect its ability to detect cartels and bring them to an end. It is common ground that such a confidential version, unlike the non-confidential version of the PHP Decision publication of which is envisaged in the present case, contains, in particular, indications of the source of the information voluntarily communicated to the Commission by undertakings with a view to benefiting from the leniency programme, and that such a version is therefore liable to reflect the self-incriminating statements made by those undertakings. Such a confidential version, moreover, is liable to contain the names of employees of the undertakings found to have participated in the infringement.
In those circumstances, it cannot be inferred from the extract from the letter from the Director General of DG COMP to which the applicant refers, cited in the newspaper article mentioned in the preceding paragraph, that it was the Commission’s policy to guarantee the confidentiality of any information voluntarily communicated by an undertaking wishing to take advantage of the leniency programme, in particular in the context of the publication of the decisions which the Commission adopts on the basis of Article 23 of Regulation No 1/2003.
The reasoning set out at paragraphs 141 and 142 above also applies by analogy to the letter relating to arbitration proceedings pending in the United States, sent by DG COMP to a law firm on 11 February 2014 and produced by the applicant on the day of the hearing. Without there even being any need to rule on the admissibility of that document, which is disputed by the Commission, it must be stated that, like the letter referred to at paragraph 141 above, that letter reflects only the Commission’s opposition to disclosure of the confidential version of a decision whereby it has found an infringement of EU law relating to cartels and penalised several undertakings in respect of that infringement. Furthermore, and in any event, the Court observes that that letter, dated 14 February 2014, is irrelevant for the purpose of determining whether the contested decision, adopted in May 2012, entails a breach of the applicant’s legitimate expectations.
Nor, next, can the observations submitted by the Commission as
amicus curiae
before the High Court of Justice (England & Wales) in November 2011, produced in the context of a measure of organisation of procedure, have caused the applicant to entertain a legitimate expectation that the Commission would not publish a more complete non-confidential version of the PHP Decision than that published in 2007.
In those observations, the Commission objected only to the disclosure to third parties, first, of the confidential version of a decision whereby it had established an infringement of EU competition law and, second, of documents which had been communicated voluntarily to it by undertakings in the context of the investigation leading to the adoption of that decision, with a view to benefiting from its leniency programme, and also of statements made in connection with leniency during that investigation. Thus, in so far as those observations relate to the disclosure of the confidential version of a decision finding an infringement of EU competition law, the reasoning set out at paragraphs 141 and 142 above is applicable
mutatis mutandis
. As for the opposition shown by the Commission to the disclosure to third parties of documents and statements voluntarily submitted to it by undertakings with a view to benefiting from the leniency programme, it cannot be inferred therefrom that the Commission has a policy of generally affording confidential treatment to all information relating to an infringement of EU competition law communicated by an undertaking seeking to benefit from the leniency programme.
In any event, it should be observed that, at recitals 20, 21 and 23 to the observations in question, the Commission supported its viewpoint that it would be disproportionate to disclose to third parties the confidential version of the decision concerned by the fact that that version contained little additional information relating to the functioning of the cartel in question in the United Kingdom by comparison with the non-confidential version of that decision that was accessible by the public. The Commission considered, in that particular case, that disclosure of the confidential version of the decision in question was not justified, in view of the very limited interest that such disclosure would have for the presumed victim of the cartel, who sought to obtain, before the courts of the United Kingdom of Great Britain and Northern Ireland, compensation for the damage which it claimed to have sustained.
By contrast, the present disputes concerns the publication by the Commission of a non-confidential version of the PHP Decision containing a large amount of detailed information on the functioning of the cartel penalised in that decision which was not in the version of the decision published on DG COMP’s website in 2007. As was emphasised at paragraph 103 above, such publication would on the face of it be liable to make it easier for third parties who consider that they have been adversely affected by the cartel to establish the civil liability of the applicant and other undertakings that participated in the cartel and likewise, where appropriate, the extent of that liability. It follows that the point of view expressed by the Commission in the observations cited at paragraph 144 above related to a situation so different from that forming the background to the present case that those observations could not in any event cause the applicant to entertain the legitimate expectation on which it relies.
As regards, moreover, the argument based on the notion put forward by the Commission in the context of the civil proceedings initiated in the United States, that undertakings which cooperated voluntarily with it by disclosing the existence of cartels cannot be placed, in such actions, in a less favourable position than other participants in the cartels which have not shown such a spirit of cooperation, it cannot be upheld either.
In that regard, first, since the interest of an undertaking on which the Commission has imposed a fine for an infringement of competition law in the details of the unlawful conduct of which it is accused not being disclosed to the public does not, in principle, warrant any particular protection (see paragraph 107 above), the applicant cannot claim such protection on the pretext that it must benefit from a special position before the national courts by comparison with undertakings which did not demonstrate the same degree of cooperation with the Commission. Next, in so far as the published decision sets out the facts on which each of its addressees was found to be liable for an infringement of Article 101 TFEU, the applicant is not placed at a disadvantage in that respect by comparison with the other participants in the infringement. Last, it must be borne in mind that the applicant’s cooperation with the Commission as described at paragraph 2 above led to complete immunity from a fine, which is the normal consequence according to the 2002 Leniency Notice. In any case, the applicant has adduced no evidence to show that the publication of the information in respect of which it seeks confidential treatment in the present case, which deals with the functioning of the cartel as a whole, would place it at a disadvantage by comparison with other undertakings to which the PHP Decision was addressed in the context of actions for damages. It follows that there is no inconsistency between the position thus adopted, which, moreover, is reflected in the observations submitted before the High Court of Justice in November 2011, referred to at paragraph 144 above, and the point of view put forward by the Commission in the present case.
As regards the applicant’s references to the point of view put forward by the Commission in the case giving rise to the judgment in Case T‑344/08
EnBW Energie Baden-Württemberg
v
Commission
[2012] ECR and the judgment in
Commission
v
EnBW Energie Baden-Württemberg
, paragraph 92 above, they are irrelevant in the present case, since, as the Commission rightly points out, that case concerned a decision rejecting a request for access to all the documents in a Commission file relating to an infringement of competition law. It follows that the point of view put forward by the Commission in that context was unable to cause the applicant to entertain a legitimate expectation that the Commission would refrain from bringing to the knowledge of the public any information which the applicant had voluntarily communicated to it during the investigation with a view to benefiting from the leniency programme.
Last, in the third place, the Court must examine the applicant’s argument that the breach of its legitimate expectation also has its basis in the Commission’s previous practice, which consisted in not disclosing information communicated to it voluntarily by undertakings in connection with applications for leniency and in respect of which those undertakings had sought confidential treatment. It submits that that practice is illustrated by the non-confidential version of the PHP Decision published in 2007, which largely takes into account requests for confidential treatment submitted by the applicant and, unlike other published versions of decisions penalising infringements of EU competition law, was not described as ‘provisional’ by the Commission.
In that regard, it should be observed that, even on the assumption that such a practice had been established, it would not have been capable of causing the applicant to entertain a legitimate expectation that the Commission would not alter it in the future.
Although compliance with the principle of legitimate expectations is among the fundamental principles of EU law, traders cannot have a legitimate expectation that an existing situation which is capable of being altered within the limits of the discretionary power of the EU institutions will be maintained (Case
245/81
Edeka
[1982] ECR 2745
, paragraph 27; see Case
T-29/05
Deltafina
v
Commission
[2010] ECR II-4077
, paragraph 426 and the case-law cited).
In the present case, it is apparent from the examination of the third plea, above, that the information to whose publication the applicant is opposed cannot be regarded, in view of the argument submitted by the applicant itself during the administrative procedure and in the context of these judicial proceedings, as being confidential in nature.
The Commission has a wide discretion to decide whether or not to publish such information. In the light of the principles set out at paragraphs 89 and 90 above, Article 30(2) of Regulation No 1/2003 must be interpreted as limiting the Commission’s obligation to publish to a reference to the names of the parties and the main content of the decisions referred to in Article 30(1), with a view to facilitating the Commission’s task of informing the public of the existence and the content of those decisions, having regard inter alia to the linguistic constraints connected with publication in the Official Journal. Conversely, that provision does not limit the Commission’s power to publish the full text or, at least, a very complete version of its decisions, if, resources permitting, it considers it appropriate to do so, without prejudice to the protection of professional secrecy and other confidential information (see, by analogy, judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 76).
While the Commission is therefore subject to a general obligation to publish only non-confidential versions of its decisions, it is not necessary, to ensure compliance with that obligation, to interpret Article 30(2) of Regulation No 1/2003 as conferring a specific right on addressees of decisions adopted on the basis of Articles 7 to 10 and Articles 23 and 24 of that regulation allowing them to prevent publication by the Commission in the Official Journal and, where relevant, on its website of information which, even though not confidential, is not essential for understanding the operative part of those decisions (see, by analogy, judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 77). Thus, the aim of Article 30(2) of Regulation No 1/2003 is not to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is fuller than the minimum necessary and also to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 79).
It therefore follows from that discretion that, in accordance with the case-law referred to at paragraph 153 above, on the assumption that the administrative practice to which the applicant refers were established, the applicant would not be able to acquire any legitimate expectation in its being maintained.
That conclusion is even more essential in the present case because the publication of detailed information relating to an infringement of EU law relating to cartels is liable to facilitate the establishment of the civil liability of the undertakings responsible for such an infringement and thus to reinforce the application of that law in the private domain. It is also appropriate to take account, in that regard, of the fact that the Commission makes clear, at point 31 of the 2002 Leniency Notice and point 39 of the 2006 Leniency Notice, that ‘[t]he fact that immunity or reduction in respect of fines [was] granted cannot protect an undertaking from the civil law consequences of its participation in an infringement of Article 81 EC’.
As for the applicant’s argument that its legitimate expectation that the Commission would not disclose the information communicated voluntarily during the investigation is based on the publication of a first non-confidential version of the PHP Decision in 2007, which took into account the requests for confidentiality which it had submitted, it cannot succeed either.
Admittedly, the Commission did not expressly describe that first non-confidential version of the PHP Decision, published in 2007, as ‘provisional’.
However, it should be borne in mind that, at that time, this Court had already interpreted Article 21(2) of Regulation No 17, which corresponds, in substance, to Article 30(2) of Regulation No 1/2003, as meaning that the aim of that provision was not to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is fuller than the minimum necessary and also to include information whose publication is not required, in so far as the disclosure of that information was not inconsistent with the protection of professional secrecy (judgment in
Bank Austria Creditanstalt
v
Commission
, paragraph 33 above, paragraph 79). In that context, the mere fact that the Commission published a first non-confidential version of the PHP Decision in 2007 and did not describe that version as provisional cannot be regarded as having given the applicant any precise assurance, within the meaning of the case-law referred to at paragraph 135 above, that a new, more complete non-confidential version of that decision would not be published subsequently.
In addition, the requests for confidentiality submitted by the applicant in July 2006 were based, in particular, on the fact that the confidential version of the PHP Decision revealed, according to the applicant, a significant amount of commercially sensitive information relating to it. At the time of publication of the first non-confidential version of the PHP Decision, it was already settled case-law that information which was secret or confidential, but which dates from five years ago or longer, is neither secret nor confidential and must therefore be regarded as historical, unless, exceptionally, the undertaking concerned shows that, in spite of its age, the information concerned still constitutes essential elements of its commercial situation or that of a third party (see the case-law cited at paragraph 84 above). Consequently, the applicant was in a position to understand, even then, that the possibly confidential nature of that information could not, in principle, be guaranteed indefinitely.
As, moreover, the applicant has adduced no evidence capable of establishing that the Commission gave any specific commitment to the applicant that it would not publish a non-confidential version of the PHP Decision containing more information than the version published on DG COMP’s website in September 2007, it cannot claim that the publication of that version alone caused it to entertain a legitimate expectation that the Commission would not do so.
Last, the complaints alleging breach of the principles of legal certainty and equal treatment must also be rejected, as the reasoning put forward by the applicant in support of those complaints is essentially the same as that alleging breach of the principle of legitimate expectations.
It follows that the fourth plea is unfounded and must therefore be rejected.
Fifth plea, alleging breach of the
‘purpose
’ principle enshrined in Article 28(1) of Regulation No 1/2003 and also breach of paragraph 48 of the notice on access to the file
The applicant maintains that, in so far as the contested decision entails the publication of statements and documents from applicants for leniency, it fails to have regard to the ‘purpose’ principle set out in Article 28(1) of Regulation No 1/2003. In accordance with that provision, information collected in proceedings pursuant to Articles 17 to 22 of Regulation No 1/2003 can be used only for the purpose for which it was acquired. The disclosure of information from the Commission’s file, by publication of a more complete non-confidential version of the PHP Decision, adopted several years ago, is inconsistent with the purpose for which that information was acquired. That conclusion is confirmed by paragraph 48 of the notice on access to the file, from which it follows that such access is to be granted only on condition that the documents obtained are used only for the purposes of judicial or administrative proceedings for the application of the EU competition rules at issue in the related administrative proceedings.
The Commission disputes those arguments.
In that regard, it should be observed, first of all, that the applicant cannot succeed where it means to base its criticism of the contested decision, under the present plea, on paragraph 48 of the Notice on access to the file.
As the Commission correctly observes, it follows from the wording of paragraph 48 of the Notice on access to the file that the prohibition which it lays down, concerning the use of documents in the file relating to the investigation for purposes other than judicial or administrative proceedings for the application of the EU competition rules at issue in the related administrative proceedings, is addressed to the persons, undertakings and associations of undertakings to whom the Commission has addressed a statement of objections and who benefit from access to that file, within the meaning of paragraph 3 of the Notice on access to the file. Paragraph 48 is therefore not intended to restrict the Commission’s use of statements or documents acquired in the context of an investigation relating to an infringement of Article 81 EC.
Next, as regards the complaint alleging breach of the ‘purpose’ principle laid down in Article 28(1) of Regulation No 1/2003, it should be borne in mind that, in the words of that provision, information collected pursuant to Article 17 to 22 of that regulation is to be used only for the purpose for which it was acquired, without prejudice to Articles 12 and 15 of that regulation, on the exchange of information with the competition authorities of the Member States and cooperation between the Commission and the courts of the Member States.
That complaint cannot succeed, however, without there even being any need to rule on the question, discussed by the parties, whether information voluntarily communicated to the Commission during an investigation falls within the scope of that provision, in spite of the fact that Articles 17 to 22 of Regulation No 1/2003 seek to restrict the Commission’s investigative powers.
In fact, the publication of decisions adopted by the Commission pursuant to Article 23 of Regulation No 1/2003 constitutes, in principle, as is clear from Article 30 of that regulation, the final stage in the administrative procedure whereby the Commission finds infringements of Article 81 EC and brings them to an end.
It follows that, without prejudice to the protection that must be afforded to the confidential information contained in the Commission’s investigation files, the publication by the Commission of a non-confidential version of such decisions, containing information communicated to it voluntarily by undertakings with a view to benefiting from the leniency programme, cannot be described as being outside the scope of the reason why the information was acquired.
That finding, moreover, enables the present case to be distinguished from the case giving rise to the judgment in
Asociación Española de Banca Privada and Others
, paragraph 121 above, cited by the applicant. Without there even being any need to recall the differences between Article 20(1) of Regulation No 17 and Article 28(1) of Regulation No 1/2003, it is sufficient to state that that judgment concerned the use by the national authorities, as evidence, of information obtained by the Commission from undertakings which had not been mentioned in a Commission decision penalising an infringement of competition law, published in the conditions provided for in Article 21 of Regulation No 17, and the Court held that such use was prohibited as it was outside the scope of the reason why such information had been acquired (judgment in
Asociación Española de Banca Privada and Others
, paragraph 121 above, paragraphs 35 to 38 and 47 to 54).
Accordingly, the fifth plea is unfounded and must be rejected and the action must likewise be dismissed in its entirety.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the Commission.

On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Evonik Degussa GmbH to pay the costs including those relating to the interim proceedings.

Papasavvas
Forwood
Bieliūnas
Delivered in open court in Luxembourg on 28 January 2015.
[Signatures]
(
*1
)	Language of the case: German.