CELEX: 62012TJ0465
Competition
Administrative procedure
European automotive glass market
Publication of a decision finding an infringement of Article 81 EC
Rejection of a request for confidential treatment of information the Commission intends to publish
Obligation to state reasons
Confidentiality
Obligation of professional secrecy
Leniency programme
Legitimate expectations
Equal treatment

)
Background to the dispute
On 12 November 2008 the Commission of the European Communities adopted Decision C(2008) 6815 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement, in which it found against a number of automotive glass (carglass) manufacturers, including the applicants: AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH, (Case COMP/39.125 — Car glass) (‘the carglass decision’).
The Commission found, inter alia, that the addressees of the carglass decision had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, over various periods between March 1998 and March 2003, in a set of anticompetitive agreements and concerted practices in the automotive glass sector in the EEA.
According to the carglass decision, the infringement in question was a single and continuous infringement consisting in the concerted allocation of contracts relating to the supply of carglass pieces and/or car sets, generally consisting of a windscreen, rear window and sidelights, to the major car manufacturers in the EEA. According to the Commission, that concerted action took the form of the coordination of pricing policies and customer supply strategies designed to maintain an overall stability of the position of the parties to the cartel on the market concerned. That stability was ensured, in particular, by corrective measures implemented when the concerted action had not produced the desired results.
By letter of 25 March 2009, the Commission’s Directorate-General (DG) for Competition informed the applicants, inter alia, of its intention to publish, in accordance with Article 30 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] of the Treaty (
OJ 2003 L 1, p. 1
), a non‑confidential version of the carglass decision on its website in English, French and Dutch, the authentic languages of the case. DG Competition also asked the applicants to identify any information that was confidential or which constituted business secrets and to give reasons for their assessment in that regard.
In December 2011, following an exchange of correspondence with the applicants, DG Competition adopted the non-confidential version of the carglass decision to be published on the Commission website. It is apparent from the correspondence in question that DG Competition did not act on the applicants’ requests for the redaction of information contained in 246 recitals of the carglass decision and 122 footnotes thereto.
According to DG Competition, that information can be divided into three categories. The first contains customer names, descriptions of the products concerned and any information that could enable an individual customer to be identified (‘Category I information’). The second contains the number of parts supplied, the allocation of quotas to each of the car manufacturers, price agreements, pricing calculations and price changes and, last, the numbers or percentages involved in the allocation of customers between the cartel members (‘Category II information’). The third contains purely administrative information consisting of references to documents in the file (‘Category III information’).
The applicants referred the matter to the Hearing Officer on 20 January 2012 in accordance with 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
), objecting to the publication of the Category I and Category II information and the publication of part of a sentence in recital 726 of the carglass decision. By letter of 21 May 2012, the applicants withdrew their request with respect to the Category II information.
The contested decision
The Hearing Officer ruled on the applicants’ request by Commission Decision C(2012) 5719 final of 6 August 2012 on the rejection of a request for confidential treatment submitted by the applicants, adopted pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case COMP/39.125 — Car glass) (‘the contested decision’).
In the form of a number of preliminary points, the Hearing Officer stated, first, that the Commission Notice on immunity from fines and reduction of fines in cartel cases (
OJ 2006 C 298, p. 17
; ‘the 2006 Leniency Notice’) does not mean that the applicants had a legitimate expectation preventing the Commission from publishing information not covered by professional secrecy. Furthermore, the applicants’ interest in the non-disclosure of details of their conduct not covered by professional secrecy did not warrant any particular protection. The Hearing Officer stated moreover that he was not competent to decide whether it was appropriate to publish non-confidential information or to take a position as regards any adverse effects that might have been brought about by the Commission’s general policy in that regard (recitals 12 to 14 and 19 of the contested decision).
As a second preliminary point, the Hearing Officer rejected the argument that the Commission was bound by its previous practice relating to the extent of the publication. The Hearing Officer also noted that the intended publication did not mention the source of the leniency statements or other documents submitted in that connection, but pointed out that he was not competent to rule on the extent of the intended publication in the light of the principle of equal treatment, taking into consideration the applicants’ status as applicants for leniency (recitals 16 to 18 of the contested decision).
It is apparent from recital 21 of the contested decision that that decision essentially rests on the examination of two arguments put forward by the applicants. The first argument, examined in recitals 22 to 35 of the contested decision, relates to the inherently confidential nature of the information at issue and the second argument, examined in recitals 36 to 45 of the contested decision, relates to the protection of the identity of natural persons.
As regards the first argument, the Hearing Officer found first that, given the specific characteristics of the carglass market, the Category I information, consisting in customer names and descriptions of the products concerned, was by its very nature known outside the applicants, second, that it was historical, and, third, that it referred to the very essence of the infringement, and, moreover, the interests of the persons harmed required its disclosure (recitals 24 to 29 of the contested decision). Furthermore, to the extent that the applicants had raised specific arguments seeking to establish that the information was confidential notwithstanding its general characteristics as described above, the Hearing Officer concluded, following an analysis which took account of three cumulative conditions, that the Category I information was not covered by the obligation of professional secrecy (recital 30, last sentence, to recital 35 of the contested decision).
As regards the second argument, the Hearing Officer relied on Article 5 of 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 2000 L 8, p. 1
) and accepted that the information contained in recitals 115, 128, 132, 252 and 562, and in footnote 282, of the carglass decision should be given confidential treatment (recitals 36 to 45 and Article 2 of the contested decision).
The Hearing Officer also accepted that confidential treatment should be given to part of a sentence in recital 726 of the carglass decision (recital 8 and Article 1 of the contested decision).
The Hearing Officer refused the applicants’ request as to the remainder (Article 3 of the contested decision).
Procedure and forms of order sought by the parties
By application lodged at the Court Registry on 19 October 2012, the applicants brought the present action.
By order of 27 November 2013, the President of the Third Chamber of the General Court refused the applications lodged by four insurance companies active in the carglass sector for leave to intervene in support of the forms of order sought by the Commission.
The applicants claim that the Court should:
—
annul Article 3 of the contested decision;
—
order the Commission to pay the costs;
—
take any other measures considered appropriate.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicants to pay the costs.
Law
In support of their action, the applicants rely on six pleas in law, claiming, respectively:
—
infringement of Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (
OJ 2011 L 275, p. 29
);
—
breach of the principle of the protection of legitimate expectations;
—
breach of the principle of equal treatment and of the obligation to state reasons;
—
breach of the principle of good administration;
—
infringement of the provisions on public access to documents of the EU institutions;
—
infringement of the provisions on the protection of professional secrecy.
It is appropriate to examine first the sixth plea in law.
The sixth plea in law: infringement of the provisions relating to the protection of professional secrecy
[omissis]
The first plea in law: infringement of Article 8 of Decision 2011/695
The applicants claim that, by refusing, in recitals 14, 17 and 19 of the contested decision, to examine whether the intended publication was in compliance with the principles of the protection of legitimate expectations and equal treatment, the Hearing Officer failed to exercise the powers conferred on him by Article 8 of Decision 2011/695. In any event, since the Hearing Officer explicitly denied that he had such powers, the contested decision is vitiated by a failure to state sufficient reasons with regard to those principles.
In that regard, it must first be observed that, as is clear from the analysis carried out in relation to the sixth plea in law, the contested decision is not vitiated by illegality as regards its findings relating to the confidentiality of the information at issue.
It is clear, next, from recitals 14, 17 and 19 of the contested decision that the Hearing Officer made a distinction between the applicants’ arguments based on the confidentiality of the information at issue, on the one hand, and their arguments based on breach of principles which are not linked to the obligation of professional secrecy, such as the principle of equal treatment and the principle of the protection of legitimate expectations, on the other.
In that regard, the Hearing Officer correctly concluded, in recital 14 of the contested decision, that the arguments concerned related by definition to information which could be published taking into account the limits imposed on the action of the Commission by Article 30(2) of Regulation No 1/2003 and Article 8 of Decision 2011/695, namely information which was not covered as such by the obligation of professional secrecy. It must be recalled that, as is stated in Article 8(1) of Decision 2011/695, the procedure which may give rise to the intervention of a hearing officer is triggered ‘[w]here the Commission intends to disclose information which may constitute a business secret or other confidential information’. In that context, the Hearing Officer was also correct to emphasise the discretion enjoyed by the Commission when that institution identified non‑confidential information which might be published.
It is important moreover to note that, as is clear from Article 8(2) of Decision 2011/695, the Hearing Officer must specify, in his decision, the date after which the information at issue ruled not to be confidential will be disclosed, that date not to be more than one week after notification. It follows from that provision that the intervention of the Hearing Officer consists in applying the rules which protect undertakings by reason of the confidentiality of the information concerned. The publication by DG Competition of information covered by the obligation of professional secrecy definitively nullifies the specific protection granted to that kind of information. The intervention of the Hearing Officer serves therefore to add a phase of supplementary review by a body independent of DG Competition. That body is, in addition, obliged to defer the date when its decision takes effect, thereby giving the undertaking concerned the opportunity to bring a case before the judge responsible for hearing applications for interim relief in order to have the decision suspended when the relevant conditions are met. Consequently, a distinction must be made between the application of legal rules relating to the confidentiality of the information as such, on the one hand, and the legal rules relied on with the objective of obtaining confidential treatment of the information irrespective of whether that information is inherently confidential, on the other. In that regard, as contended by the Commission, even if the publication of an item of information not covered by the obligation of professional secrecy might constitute an infringement of a rule falling within the second of the two abovementioned categories, that does not render the protection conferred by the rules relating to professional secrecy illusory. Such an infringement, if it were to be established, can give rise to adequate remedies, such as damages, if the conditions governing non‑contractual liability of the Union are met. Accordingly, an analysis of the substance of the arguments relating to that category of rules is outside the objectives pursued by the terms of reference conferred on a hearing officer under Article 8 of Decision 2011/695 (judgment of 28 January 2015 in
Evonik Degussa
v
Commission
, T‑341/12, ECR,
EU:T:2015:51
, paragraph 43), and consequently the findings in recitals 14, 17 and 19 are not vitiated by illegality.
In any event, finally, in recitals 12, 13 and 16 of the contested decision, the Hearing Officer stated that the applicants could not rely on any legitimate expectation or other legitimate interest to prevent the Commission from publishing non‑confidential information, even where that information was not part of the main content of the decision finding the infringement. Further, the Hearing Officer stated, in recital 18 of the contested decision, that the Commission had agreed to eliminate any reference which might identify the source of the statements produced within the leniency procedure or documents submitted as part of that procedure, in order to take due account of the applicants’ status as undertakings which had cooperated. That being the case, it is clear that the Hearing Officer made an assessment of the arguments related to breach of the principles of protection of legitimate expectations and equal treatment, and consequently the contested decision is not, in any event, vitiated by an inadequate statement of reasons.
Consequently, the first plea in law must be rejected.
The second and third pleas in law: breach of the principle of the protection of legitimate expectations, the principle of equal treatment and the obligation to state reasons
The applicants claim that both the 2006 Leniency Notice and the 2002 Leniency Notice contain provisions which create a legitimate expectation, for all undertakings falling within their scope, that information voluntarily provided will remain confidential, as far as possible, even at the stage of publication of the Commission’s decision. Further, those notices give precise assurances as to the fact that published information will have the result that undertakings which cooperated, such as the applicants, will be less exposed to the risk of civil actions being brought against them than undertakings which did not cooperate. That expectation, which is also based on Article 4(2) of Regulation No 1049/2001, covers not only documents submitted as part of a leniency procedure but also the information contained in those documents. The contested decision authorises publication of the identity of the applicants’ customers, that is to say, information given to the Commission under the leniency programme. That publication, which is not necessary for the purposes of applying Article 101 TFEU, is therefore in breach of the applicants’ legitimate expectations and puts them at a disadvantage as compared with undertakings which did not cooperate. That gives rise to an infringement of the provisions relating to the protection of professional secrecy.
The applicants also maintain that, as the sole applicants for leniency, their situation is different from that of the other addressees of the carglass decision. In relation to publication of the identity of the customers concerned, the contested decision allows the Commission to adopt a common approach with regard to all the addressees of the carglass decision. That disproportionately harms the applicants, since the references to the car manufacturers concerned by the cartel are mostly to their own customers. Those circumstances also amount to a breach of the obligation of professional secrecy, the findings of the Hearing Officer being in addition vitiated by a manifest error of assessment and failure to state adequate reasons.
Those arguments cannot be accepted.
It must first be observed that the findings set out in paragraph 59 above are without prejudice to the powers of the Courts of the European Union to rule on pleas in law claiming a breach of the principle of protection of legitimate expectations or of the principle of equal treatment.
In that regard, first, the 2002 and 2006 Leniency Notices contain no provision which supports the applicants’ arguments. In particular, it is clear from points 3 to 7 of the 2002 Leniency Notice and from points 3 to 5 of the 2006 Leniency Notice that the sole aim of those notices is to establish the conditions under which an undertaking may obtain either immunity from a fine or a reduction in the amount of the fine. As contended by the Commission, the notices concerned do not provide for any other advantage which an undertaking can claim in exchange for its cooperation. The rules stated in points 8 to 27 of the 2002 Leniency Notice and in points 8 to 30 of the 2006 Leniency Notice concern exclusively the amount of fines.
That finding is expressly confirmed in point 31 of the 2002 Leniency Notice and in point 39 of the 2006 Leniency Notice. The wording in those two points is identical: the fact that immunity or reduction in respect of fines is granted cannot protect an undertaking from the civil law consequences of its participation in an infringement of Article 101 TFEU.
Admittedly, according to point 6 of the 2006 Leniency Notice, ‘Potential leniency applicants might be dissuaded from cooperating with the Commission under this Notice if this could impair their position in civil proceedings, as compared to companies who do not cooperate’.
However, that sentence must be read in context and particularly in the light of the sentences which precede it, namely:
‘In addition to submitting pre-existing documents, undertakings may provide the Commission with voluntary presentations of their knowledge of a cartel and their role therein prepared specially to be submitted under this leniency programme. These initiatives have proved to be useful for the effective investigation and termination of cartel infringements and they should not be discouraged by discovery orders issued in civil litigation.’
Consequently, the sentence quoted in paragraph 68 above means that an undertaking should not be placed at a disadvantage with regard to civil litigation which may be brought against them solely because it voluntarily submitted in writing to the Commission a leniency statement, which could be the subject of a court decision ordering discovery. In the context of that desire to provide quite specific protection for leniency statements, the Commission imposed on itself, in points 31 to 35 of the 2006 Leniency Notice, specific rules governing the form of those statements, access to them and their use. Yet those rules concern exclusively the documents and statements, written or recorded, received in accordance with the 2002 or 2006 Leniency Notices, the disclosure of which is in general considered by the Commission to undermine the protection of the purpose of inspections and investigations within the meaning of Article 4 of Regulation No 1049/2001, as stated in points 32 and 40 of those notices. It is therefore neither the intention nor the effect of those rules that the Commission should be prevented from publishing, in its decision bringing the administrative procedure to an end, the information relating to the description of the infringement which was submitted to it as part of the leniency programme, and those rules give rise to no legitimate expectation in that regard.
Accordingly, such publication, made pursuant to Article 30 of Regulation No 1/2003 and, as is apparent from the examination of the sixth plea in law, with due regard for the obligation of professional secrecy, does not frustrate the legitimate expectation which the applicants can claim under the 2002 and 2006 Leniency Notices, which concerns the calculation of the amount of the fine and the treatment of the documents and statements specifically referred to.
Correspondingly, for the reasons set out in paragraph 29 above, Article 4 of Regulation No 1049/2001 concerns access to the documents which are part of the investigation file, but is not concerned with the decision adopted by the Commission at the end of the administrative procedure, the content of that decision being defined by Article 30 of Regulation No 1/2003. Accordingly, Article 4 of Regulation No 1049/2001 cannot give rise to any legitimate expectation on the part of the applicants as to the content of the public version of the carglass decision.
Second, as contended by the Commission, the aim of the 2002 and 2006 Leniency Notices is to give effect to a policy of differentiating between the addressees of a decision finding an infringement of Article 101 TFEU according to the degree to which each of them cooperates, solely with regard to amount of the fine. Since, to follow the analysis above, the notices concerned are not intended to affect the consequences under civil law of participation by the undertakings which apply for leniency in an infringement, the applicants’ argument that they, in terms of those consequences, are in a situation which differs from that of the other addressees of the carglass decision because of their status as applicants for leniency (see paragraph 63 above) cannot be accepted. Consequently, the argument that the Commission should have adapted the published references relating to the customers of each addressee of the carglass decision according to the degree to which each of them cooperated is, in addition to being impracticable, based on a mistaken premise. Taking into consideration the fact that, as stated by the Hearing Officer in recital 18 of the contested decision, the Commission had agreed to eliminate any reference which might identify the source of the information concerning each matter of fact on which the carglass decision was based, there is, in any event, no question of a breach of the principle of equal treatment or of the obligation to state reasons.
The second and third pleas in law must therefore be rejected.
The fourth plea in law: infringement of the principle of good administration
[omissis]
The fifth plea in law: infringement of the provisions relating to public access to documents of the institutions
[omissis]
Costs
[omissis]

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

1.
Dismisses the action;

2.
Orders AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH to pay the costs.

Papasavvas
Forwood
Bieliūnas
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]
(
*1
)	Language of the case: English.
(
)	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here. As regards those matters which are omitted, reference is made to the judgment of the General Court of 15 July 2015 in
Pilkington Group
v
Commission
(T-462/12).