**Case T-474/04**

**Pergan Hilfsstoffe für industrielle Prozesse GmbH**

**v**

**Commission of the European Communities**

(Competition – Agreements, decisions and concerted practices – Organic peroxides – Decision refusing a request for removal of certain passages from the definitive published version of a decision finding an
infringement of Article 81 EC – Disclosure of information concerning the applicant by publishing a decision not addressed to it – Article 21 of Regulation No 17 – Professional secrecy – Article 287 EC – Presumption of innocence – Annulment)

Summary of the Judgment

1.      *Actions for annulment – Interest in bringing proceedings – Undertaking which contests the hearing officer’s decision rejecting
its request for confidential treatment of information about it contained in the version of a Commission decision intended
for publication, in which a finding of an infringement of Article 81 EC by other undertakings is made and a sanction imposed*

*(Arts 81 EC, 230, fourth para., EC and 233 EC)*

2.      *Competition – Administrative procedure – Establishing whether information is covered by professional secrecy – Criteria*

*(Arts 81 EC, 286 EC and 287 EC; European Parliament and Council Regulations Nos 1049/2001, Art. 4, and 45/2001; Council Regulation
No 17, Art. 21(2); Commission Regulation No 2842/98, Art. 13(1); Commission Decision 2001/462, Art. 9; Commission Notice 2005/C
325/07)*

3.      *Competition – Administrative procedure – Compliance with the obligation of professional secrecy – Undertaking’s interest in
information relating to its conduct not being disclosed*

*(Arts 81 EC and 82 EC; Council Regulations Nos 17, Art. 21(2), and 2988/74, Art. 1)*

4.      *Community law – Principles – Fundamental rights – Presumption of innocence*

*(Charter of Fundamental Rights of the European Union, Art. 48; Council Regulation No 17, Art. 21(2))*

5.      *Competition – Administrative procedure – Compliance with the obligation of professional secrecy – Substantive scope*

*(Art. 287 EC; Council Regulation No 17, Art. 21(2))*

1.      A legal interest in bringing proceedings presupposes that annulment of the measure is of itself capable of having legal consequences,
that the appeal must therefore be likely, if successful, to procure an advantage for the applicant, and is justified by a
vested and present interest in the annulment of that measure.

Such an interest exists where an undertaking seeks annulment of the hearing officer’s decision, in the context of proceedings
applying the Community competition rules, to refuse to grant the undertaking’s request to have removed from the version of
a decision intended for publication, in which a finding of an infringement of the competition rules is made and a sanction
imposed, but which is not addressed to it, those paragraphs which, in the statement of reasons, describe its involvement in
the infringement during a time covered by the limitation period.

Should the decision be annulled on the ground that it disregarded the undertaking’s legitimate interest in the protection
of its business interests, the Commission would, under Article 233 EC, have to give due effect to it for the publication of
the decision in question.

The mere fact that the disputed information has already been published and that certain third parties may already have read
it cannot make that interest disappear, since continued disclosure of that information continues to harm the interests and,
in particular, the reputation of the applicant undertaking, and as such constitutes a vested and present interest.

(see paras 38-40)

2.      Whilst neither Article 287 EC nor Regulation No 17 states explicitly what information, apart from business secrets, is covered
by the obligation of professional secrecy, it is apparent from the open wording of Article 287 EC, from Article 13(1) of Regulation
No 2842/98 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] and from the case‐law, that
the concept of ‘information covered by the obligation of professional secrecy’ also includes confidential information other
than business secrets. It follows from this wider understanding of the concept of ‘information covered by the obligation of
professional secrecy’ that Article 21 of Regulation No 17 and Article 9 of Decision 2001/462 on the terms of reference of
hearing officers in certain competition proceedings, must be interpreted as meaning that they apply, in the same way as Article 13(1)
of Regulation No 2842/98, both to business secrets and to other confidential information. In addition, the confidentiality
of information, for which professional secrecy requires that it be protected under Article 287 EC, may also stem from other
provisions of primary or secondary Community law, such as Article 4 of Regulation No 1049/2001 regarding public access to
European Parliament, Council and Commission documents or from Article 286 EC and Regulation No 45/2001 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.

As regards, generally, the nature of business secrets or other information covered by the obligation of professional secrecy,
it is necessary, first of all, that such business secrets or confidential information be known only to a limited number of
persons. Next, it must be information whose disclosure is liable to cause serious harm to the person who has provided it or
to third parties. Finally, the interests liable to be harmed by disclosure must be worthy of protection. The assessment as
to the confidentiality of a piece of information requires, in this regard, the individual legitimate interests opposing disclosure
of the information to be weighed against the public interest that the activities of the Community institutions take place
as openly as possible.

It follows, first, that when the hearing officer takes a decision under the third paragraph of Article 9 of Decision 2001/462,
he must not merely examine whether the version of a decision taken under Regulation No 17 and intended for publication contains
business secrets or other confidential information enjoying similar protection. He must also check whether that version contains
other information which cannot be disclosed to the public either on the basis of rules of Community law affording such information
specific protection or because it is information of the kind covered by the obligation of professional secrecy. Secondly,
in the context of its review of legality, the Court must ensure that the hearing officer observes the limits of his terms
of reference, as just defined, and must therefore determine whether the hearing officer correctly applied the protection of
professional secrecy in the particular case. However, the Court cannot complain that the hearing officer did not correct any
procedural irregularities committed by the Commission when adopting the decision which is to be published, since the review
of such procedural irregularities does not fall within his powers. Therefore, the Court cannot call in question either the
procedural legality or the merits of the decision intended for publication, even if that decision were to contain serious
errors.

(see paras 63-66)

3.      The interest of an undertaking which the Commission has fined for breach of competition law in the non-disclosure to the public
of details of the offending conduct of which it is accused does not merit any particular protection, given, first, the public
interest in knowing as fully as possible the reasons for any Commission action, the interest of 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, second, the fined undertaking’s ability to seek judicial review of such a decision. This appraisal applies *mutatis mutandis* to a decision in which an undertaking is found to have committed an infringement, but proceedings against it are barred by
limitation, the Commission being implicitly authorised to take that decision on the basis of the rules laid down by Regulation
No 17, provided that it shows a legitimate interest for doing so. This applies, however, in so far as the infringement found
at least appears in the operative part of the decision and the decision is addressed to the undertaking concerned so that
it may contest that infringement in court.

(see paras 72-73)

4.      The scope of the Commission’s power to adopt and publish decisions on the basis of Regulation No 17 and the scope of the protection
of professional secrecy must be interpreted in the light of general principles and fundamental rights, which are an integral
part of the Community legal order, and, in particular, of the principle of presumption of innocence – as reaffirmed in Article 48
of the Charter of Fundamental Rights of the European Union – which applies to the procedures relating to infringements of
the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

In addition, the presumption of innocence implies that every person accused is presumed to be innocent until his guilt has
been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused
person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded
for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the
case. Furthermore, the guilt of a person accused of an infringement is established definitively only where the decision finding
that infringement has acquired the force of *res judicata*, which implies either the absence of an appeal against that decision by the person concerned within the time‐limits provided
for in the fifth paragraph of Article 230 EC, or, after such an appeal, the definitive closure of the contentious proceedings,
in particular, by a judicial decision confirming the lawfulness of that decision.

As a consequence, findings which the person charged with an infringement, even though he contests their merits, has not had
the opportunity to contest before the Community judicature cannot be regarded as established in law. The fact that such findings
evade any review by the courts, and therefore, in the event that they are unlawful, any correction by the Community judicature,
is manifestly contrary to the principle of the presumption of innocence. Any other interpretation would upset the system of
division of functions and the institutional balance between the administration and the courts, on the ground that, where findings
are contested, it is for the courts alone to make a definitive ruling on the existence of sufficient evidence that an undertaking
is liable for an infringement of the rules on competition.

(see paras 75-77)

5.      Since the Commission’s findings relating to an infringement committed by an undertaking are capable of infringing the principle
of the presumption of innocence, which stems, inter alia, from the need to respect the reputation and dignity of the person
concerned as that person has not been finally found guilty of an infringement, those findings must, in principle, be regarded
as confidential as regards the public, and therefore as being of the kind covered by the obligation of professional secrecy.

(see para. 78)


JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

12 October 2007 ([\*](#Footnote*))

(Competition – Agreements, decisions and concerted practices – Organic peroxides – Decision refusing a request for removal of certain passages from the definitive published version of a decision finding an
infringement of Article 81 EC – Disclosure of information concerning the applicant by publishing a decision not addressed to it – Article 21 of Regulation No 17 – Professional secrecy – Article 287 EC – Presumption of innocence – Annulment)

In Case T‐474/04,

**Pergan Hilfsstoffe für industrielle Prozesse GmbH,** established in Bocholt (Germany), represented by M. Klusmann and F. Wiemer, lawyers,

applicant,

v

**Commission of the European Communities,** represented by A. Bouquet, acting as Agent, assisted by A. Böhlke, lawyer,

defendant,

APPLICATION for the annulment of Commission Decision (2004) D/204343 of 1 October 2004 in so far as it rejects the applicant’s
request for removal of all references to it in the definitive published version of Commission Decision 2005/349/EC of 10 December
2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‐2/37.857 — Organic peroxides)
(OJ 2005 L 110, p. 44),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 8 June 2006,

gives the following

**Judgment**

**Legal context**

1        According to Article 287 EC ‘[t]he members of the institutions of the Community ... and the officials and other servants of
the Community shall be required ... 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’.

2        Article 20(2) of Council Regulation No 17: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special
Edition 1959‐1962, p. 87), applicable in this case and headed ‘Professional secrecy’, provides that ‘[w]ithout prejudice to
the provisions of Articles 19 and 21, the Commission ... [its] officials and other servants shall not disclose information acquired
by them as a result of the application of this regulation and of the kind covered by the obligation of professional secrecy.’

3        Article 21 of Regulation No 17, headed ‘Publication of decisions’, states as follows:

‘1. The Commission shall publish the decisions which it takes pursuant to Articles 2, 3, 6, 7 and 8.

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the
legitimate interest of undertakings in the protection of their business secrets.’

4        Article 13(1) of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings
under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18), applicable to the present case, provides:

‘Information, including documents, shall not be communicated or made accessible in so far as it contains business secrets
of any party, including the parties to which the Commission has addressed objections, applicants and complainants and other
third parties, or other confidential information ... The Commission shall make appropriate arrangements for allowing access
to the file, taking due account of the need to protect business secrets ... and other confidential information.’

5        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) provides:

‘Where it is intended to disclose information which may constitute a business secret of an undertaking, it shall be informed
in writing of this intention and the reasons for it. A time-limit shall be fixed within which the undertaking concerned may
submit any written comments.

Where the undertaking concerned objects to the disclosure of the information but it is found that the information is not protected
and may therefore be disclosed, that finding shall be stated in a reasoned decision which shall be notified to the undertaking
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.

The first and second paragraphs shall apply *mutatis mutandis* to the disclosure of information by publication in the *Official Journal of the European Communities*.’

6        Under Article 1(1)(b) of Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings
and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition
(OJ L 319, p. 1), the power of the Commission to impose fines or penalties for infringements of the rules of the European
Economic Community relating to transport or competition is to be subject to a limitation period of five years in the case
of infringements of provisions other than those concerning applications or notifications of undertakings or associations of
undertakings, requests for information, or the carrying out of investigations.

**Facts, procedure and forms of order sought**

7        In 2002, the Commission began an investigation, under Regulation No 17, of European producers of organic peroxides, including
the AKZO group, Atofina SA, Atochem’s successor (‘Atochem/Atofina’), and Peroxid Chemie GmbH & Co. KG, a company controlled
by Laporte plc, now Degussa UK Holdings Ltd, Peróxidos Orgánicos SA, FMC Foret SA, AC Treuhand AG and the applicant, in respect
of participation in cartels falling under Article 81 EC, including one main cartel and a number of regional cartels, on certain
markets for organic peroxides.

8        On 27 March 2003, the Commission began formal proceedings and adopted a statement of objections, which was subsequently notified,
inter alia, to the applicant. In its comments of 13 June 2003, the applicant contested, in essence, both the scope and the
duration of its participation in the main cartel, stating that it only had sporadic contact with Peroxid Chemie and Atochem/Atofina
between 1994 and 1996. It stated, however, that it had not had contact with the other undertakings in question. Thus, the
investigation of any infringement by the applicant would, in any event, be time barred.

9        By letter of 10 December 2003, the Commission informed the applicant of its decision to close the proceedings against it.

10      In addition, by Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 EC and Article 53 of the
EEA Agreement (Case COMP/E‐2/37.857 — Organic peroxides) (OJ 2005 L 110, p. 44; ‘the peroxides decision’), the Commission
imposed fines on Atochem/Atofina, Peroxid Chemie, AC Treuhand, Peróxidos Orgánicos and Degussa UK for breach of Article 81
EC. The decision was addressed to the abovementioned companies but not to the applicant.

11      In the operative part, the peroxides decision does not refer to the applicant’s participation in the infringement found. However,
it is stated, inter alia, in recital 78 of the decision, in relation to the applicant:

‘After having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission,
the Commission decided to close the proceedings against [the applicant] and [FMC Forest]. For [the applicant], the Commission
considered it did not have enough evidence of [its] participation in the single and continuous infringement after 31 January
1997, the point in time when prescription applies ...’

12      Subsequently, inter alia in recitals 156 to 177, the peroxides decision contains a detailed description of the applicant’s
participation in the main cartel between, in particular, the AKZO group, Atochem/Atofina and Peroxid Chemie which lasted for
a period from 1971 to 1999. In essence, the Commission found that the applicant did not participate directly and formally
in the main cartel, but that its involvement was limited to a period from 1993 to 1996, by way of meetings and other anti‐competitive
contacts with Atochem/Atofina and Peroxid Chemie, and the exchange of commercially sensitive data with them.

13      Finally, the peroxides decision states, in recital 319:

‘[The applicant] was an addressee of the statements of objections. [The applicant] is not an addressee of this Decision (see
recital (78)), as there is no evidence that [the applicant]’s involvement lasted beyond 31 January 1997.’

14      By letter of 18 February 2004, notified on 19 February 2004, the Commission sent the applicant a copy of the peroxides decision
and a summary of that decision. In the letter, the Commission informed the applicant that it intended to publish a non‐confidential
version of both the peroxides decision and the summary, pursuant to Article 21 of Regulation No 17, and invited it to identify
any passages which it considered to contain business secrets or other confidential information.

15      By letter of 4 March 2004, the applicant asked the Commission to remove from the version of the peroxides decision intended
for publication all references to the applicant and its alleged offending conduct, in particular, those in recitals 15, 81,
106 (Table 4), and in recitals 120 to 123, 156 to 177, 184, 185, 188, 189, 202, and 270, on the ground that the applicant
was not the addressee of the decision and that the proceedings which were initiated against it had been closed (recital 78
of the peroxides decision). It stated that certain passages in the peroxides decision, relating to the applicant’s involvement
in the infringement established, in particular recitals 169 and 176, which had been disputed by the applicant in the course
of the administrative procedure, were inaccurate. In any event, the business secrets in recital 45 (the applicant’s market
share), in recital 106 (Table 4), recitals 168 and 175 (name of Mr S.), and recitals 173 to 177 and 510 (detailed assessment
of the applicant in the context of acquisition negotiations with a third‐party) should be removed.

16      By letter of 6 April 2004, the Commission informed the applicant that it would omit every reference to it in the provisional
version of the peroxides decision intended for publication, and attached the corresponding non‐confidential version. The Commission
reserved its position, however, on the applicant’s request for confidential treatment concerning the definitive version of
the peroxides decision intended for publication.

17      By letter of 13 April 2004, the applicant requested that the reference to its name in recital 15 and Table 4 of the peroxides
decision also be removed, and subject to those amendments, it accepted the provisional publication of this decision.

18      By letter of 22 June 2004, the Commission sent the applicant the provisional non‐confidential version of the peroxides decision,
in the form intended to be published shortly afterwards on the Commission’s Internet site, which did not contain any reference
to the applicant.

19      By letter of 28 June 2004, the Commission informed the applicant of its intention to reject the request for confidential treatment
concerning the reference to the applicant in the definitive version of the peroxides decision intended for publication. It
stated that in that decision, the Commission had concluded that the applicant had committed an infringement of Article 81
EC, but was unable to impose a fine on it on account of the time bar. The Commission agreed, however, to remove from the non‐confidential
definitive version of the peroxides decision, the name of the applicant’s manager, Mr S., and the references to the detailed
assessment of the applicant in the context of acquisition negotiations with a third party, and to replace the applicant’s
exact market share figures with bands of market share. Finally, the Commission informed the applicant that it could apply
to the hearing officer under Article 9 of Decision 2001/462, in the event that it wished to maintain its request for confidential
treatment.

20      By letter of 12 July 2004, the applicant asked the hearing officer to remove all references to the applicant from the definitive
version of the peroxides decision intended for publication, in line with the provisional version published on the Commission’s
Internet site. In that letter, the applicant repeated the arguments it had advanced in its letter of 4 March 2004 and stated
that the incorrect reference to its alleged participation in the infringement established, in recitals 15, 45, 61, 66, 71,
78, 81, 106 (Table 4), 108, 120 to 123, 156 to 177, 184, 185, 188, 189, 202, 270, 271, 319, 328, 366, 399, 423 and 510, and
point 1.3.1 of the index, had to be removed. In support of its request, the applicant submitted that this information could
provide third parties with evidence for the purpose of actions for damages against the applicant and could harm its reputation
on the market. In addition, once it has closed the investigation procedure in respect of the applicant, the Commission no
longer has the power to accuse it of infringing Article 81 EC or to adopt a decision to this end which adversely affects its
interests. Furthermore, the fact that the peroxides decision is not addressed to the applicant wrongly deprives the applicant
of the possibility of bringing a direct action against that decision. Finally, the Commission’s approach is incompatible with
the objective of the rules on limitation and the principles of legal certainty and the presumption of innocence.

21      By letter of 13 September 2004, the hearing officer adopted a first decision under the third paragraph of Article 9 of Decision
2001/462. In that decision, he refused to remove from the definitive version of the peroxides decision intended for publication
the references made to the applicant – save for the name of Mr S., information relating to the detailed assessment of the
applicant and the reference to the applicant’s market share, which were to be replaced by a band of market shares – on the
ground that there were no business secrets, as the concept of a business secret presupposes that disclosure of the information
in question will cause serious harm to the interests of the person concerned. First, as regards the risk of actions for damages
under national law, the hearing officer concluded that the risk does not in itself cause serious and unjust harm to the applicant’s
interests such as to justify protection of the disputed information. In the event that they are well‐founded, actions for
damages before national courts are in fact the acceptable consequence of committing an infringement of Community and national
competition law. The hearing officer stated that the applicant was not the addressee of the peroxides decision and that this
decision, in the absence of a finding that the applicant had infringed Article 81 EC, was therefore not legally binding on
national courts. Secondly, the hearing officer observed that any harm to the applicant’s reputation was the reasonable result
of publishing the peroxides decision if the applicant had participated in the cartels established. Finally, the hearing officer
stated that even if the findings in the peroxides decision were not established as a matter of fact, an issue which the hearing
officer was not empowered to determine, this would not cause any serious and lasting harm to the applicant such as to render
the disputed information a business secret.

22      In the same letter, the hearing officer also stated under a separate heading, entitled ‘Respect for the rights of defence’,
that, for the purpose of safeguarding the applicant’s rights of defence, the information relating to its alleged participation
in a regional cartel in Spain, set out in recitals 176, 262 and 328 of the peroxides decision, had to be omitted, because,
as that that information had not been referred to in the statement of objections, the applicant had not been given the opportunity
to make submissions on it.

23      By letter of 27 September 2004, the applicant stated its intention to begin proceedings before the Court of First Instance
against the decision rejecting its request for confidential treatment, as set out in the hearing officer’s letter of 13 September
2004, and requested that publication of the definitive version of the peroxides decision containing references concerning
the applicant be postponed until termination of those proceedings.

24      By letter of 1 October 2004, containing decision SG‐Greffe (2004) D/204343 (‘the contested decision’), the hearing officer
repeated the reasons set out in his letter of 13 September 2004. The hearing officer also stated that the Commission would
postpone publication of the peroxides decision, in the form described in the contested decision, until the applicant had been
given the opportunity to apply to the Court for interim relief under Article 242 EC.

25      By letter of 15 October 2004, the applicant informed the hearing officer that it would not bring an application for interim
relief, given the strict conditions laid down in the case‐law for such applications.

26      By letter of 18 October 2004, the hearing officer replied that, since the applicant had decided against bringing proceedings
for interim relief, there was no longer anything to prevent the envisaged publication of the definitive version of the peroxides
decision.

27      Subsequently, the Commission published, on the Internet site of its Directorate‐General (DG) for competition, the non‐confidential
version of the peroxides decision, which contains references to the applicant and other information disputed by it.

28      By application lodged at the Registry of the Court of First Instance on 10 December 2004, the applicant brought the present
action.

29      Upon hearing the report of the Judge‐Rapporteur, the Court (Third Chamber) decided to open the oral procedure. The parties
presented oral argument and replied to the Court’s questions at the hearing on 8 June 2006.

30      The applicant claims that the Court should:

–        annul the contested decision in so far as it rejects the applicant’s request for removal of all references to the applicant
in the definitive published version of the peroxides decision;

–        order the Commission to pay the costs.

31      The Commission contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

**Law**

A –  *Admissibility of the application for annulment*

1.     *Arguments of the parties*

32      The Commission contests the applicant’s legal interest in bringing proceedings, and therefore, the admissibility of the present
action.

33      It takes the view that, since the applicant decided not to apply to the Court of First Instance for interim relief and the
peroxides decision has in the meantime been published with the disputed information, the applicant no longer has a legal interest
in bringing proceedings against this decision. The applicant itself recognised its lack of legal interest in its letter of
27 September 2004, in stating that publication would render its application inoperative.

34      According to the Commission, the applicant does not in any way specify how the published information in question constitutes
business secrets. In any event, annulment of the contested decision could not undo the fact that third parties had read the
information and the probability that a similar situation would arise in the future is minimal. It is therefore doubtful that
the annulment could give rise to legal effects (Joined Cases T‐480/93 and T‐483/93 *Antillean Rice Mills and Others* v *Commission* [1995] ECR II‐2305, paragraphs 59 and 60).

35      The Commission submits that the action is based on the false premise that the disputed information is of a binding nature.
On the contrary, the findings relating to the infringements, such as those concerning the applicant – since they are only
contained in the recitals of the peroxides decision and not formally expressed in the operative part – are not binding (Joined
Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 *Suiker Unie and Others* v *Commission* [1975] ECR 1663, paragraph 315; Case T‐38/92 *AWS Benelux* v *Commission* [1994] ECR II‐211, paragraph 34; Case T‐145/89 *Baustahlgewebe* v *Commission* [1995] ECR II‐987, paragraphs 35, 55 et seq.; and Case T‐156/94 *Aristrain* v *Commission* [1999] ECR II‐645, publication by extracts, paragraph 699). The Commission considers that the applicant’s argument that it
has an interest in bringing proceedings because any annulment of the contested decision could form the basis of an action
for damages against the Commission if it were ordered to pay damages in national proceedings, is purely hypothetical; it observes
that the applicant is not the addressee of a decision finding an infringement of Article 81 EC which is binding on national
courts.

36      The applicant submits, in essence, that its action against the contested decision is admissible.

2.     *Findings of the Court*

37      As a preliminary point, the Court notes that the present action is directed against the contested decision, which was adopted
on the basis of the third paragraph of Article 9 of Decision 2001/462, whereby the Commission rejected in part the applicant’s
request for confidential treatment, on the ground that it related to certain passages of the non‐confidential peroxides decision
intended for publication. The aim of the present action is not therefore to challenge the lawfulness of the peroxides decision
as such. Furthermore, it is common ground that the time‐limit for any action against the peroxides decision, a copy of which
was sent to the applicant on 19 February 2004, has expired and that, therefore, that decision has become final as regards
the applicant to the extent that it is capable of producing definitive binding legal effects in regard to it.

38      Even though the applicant had the opportunity to bring an action in due time against the peroxides decision, but did not,
it does not follow that it has no legal interest in bringing proceedings against the contested decision. Such an interest
presupposes that annulment of the measure is of itself capable of having legal consequences (see *Antillean**Rice Mills and Others* v *Commission*, paragraph 34 above, paragraph 59, and the case law cited; see also, to that effect, Case 53/85 *AKZO Chemie* v *Commission* [1986] ECR 1965, paragraph 21), that the appeal must therefore be likely, if successful, to procure an advantage for that
party (see, by analogy, C‐50/00 P *Unión de Pequeños Agricultores* v *Council* [2002] ECR I‐6677, paragraph 21), and is justified by a vested and present interest in the annulment of that measure (order
in Case T‐28/02 *First Data and Others* v *Commission* [2005] ECR II‐4119, paragraph 42).

39      In that regard, it must be borne in mind, first, that the question of whether annulment of the contested decision is capable
of procuring an advantage for the applicant, and therefore giving rise to an interest in bringing proceedings, depends on
an examination of an issue of substance, that is, the scope of ‘business secret’ within the meaning of the first paragraph
of Article 9 of Decision 2001/462, read in conjunction with Article 21(2) of Regulation No 17. Assuming that the applicant’s
request for confidential treatment concerns, at least in part, business secrets covered by the abovementioned provisions –
a question to be decided when appraising the substance of the present action – the contested decision rejecting that request
would be unlawful since it is based on an incorrect application of that concept. Accordingly, annulment of the contested decision
would be capable of procuring an advantage for the applicant in that the Commission, would, under Article 233 EC, have to
give due effect to it for the publication of the peroxides decision, and, under Article 21(2) of Regulation No 17, have to
have regard to the applicant’s legitimate interest in the protection of its business secrets.

40      Secondly, contrary to the Commission’s view, the mere fact that the disputed information has already been published and that
certain third parties may already have read it cannot deprive the applicant of an interest in bringing proceedings against
the contested decision. On the contrary, continued disclosure of that information continues to harm the interests and, in
particular, the reputation of the applicant, and as such constitutes a vested and present interest within the meaning of the
case‐law cited in paragraph 38 above. Furthermore, any other interpretation, which would make admissibility of the action
dependent on whether or not the Commission had disclosed the disputed information – and therefore on whether the Commission
had created a fait accompli – would allow the Commission to avoid scrutiny by the courts by making such disclosure even if
it was unlawful.

41      More generally, the assessment made in paragraph 39 and 40 above is confirmed by case‐law to the effect that annulment of
a decision may, per se, have legal consequences, in particular by obliging the Commission to take the measures needed to comply
with the Court’s judgment in accordance with Article 233 EC and by preventing the Commission from repeating such a practice
(see, to that effect, Case T‐46/92 *Scottish Football* v *Commission* [1994] ECR II‐1039, paragraph 14, and the case‐law cited). However, in the present case, the precise effect of the contested
decision is to post continuously on the Internet site of DG Competition the non‐confidential version of the peroxides decision,
from which the passages relating to the applicant have not been removed. Therefore, annulment, at least in part, of the contested
decision would require the Commission, under Article 233 EC, to cease to make public certain disputed passages.

42      In the light of the foregoing, the Court must reject the Commission’s plea of inadmissibility and there is no need to examine
the other arguments advanced by the parties in this context.

B –  *Substance*

1.     *Preliminary observation*

43      In support of its action, the applicant puts forward three pleas in law alleging, first, infringement of Article 21 of Regulation
No 17, second, that the Commission lacks the power under Articles 3 and 15 of Regulation No 17 to adopt and publish a decision
finding an infringement attributable to the applicant, and third, infringement of its right to effective judicial protection.

 3*. The plea alleging infringement of Article 21 of Regulation No 17*

 (a) Arguments of the parties

44      The applicant maintains that the mere fact that it is not the addressee of the peroxides decision prevents the Commission
from publishing the findings which relate to it.

45      According to the applicant, the publication provided for in Article 21(2) of Regulation No 17 relates only to the parties.
However, the concept of ‘parties’ in that provision is only directed at the addressees of a decision imposing a fine and not
the undertakings involved that are not the addressees of such a decision. In fact, publication of such a decision containing
findings adversely affecting undertakings that are not addressees penalises them, owing to the negative repercussions on their
reputation resulting from such publication and the increased risk that they would be exposed, on the basis of evidence that
is apparent from the decision, to actions for damages brought by third parties before national courts. According to the applicant,
unlike the addressees of a decision, such undertakings are also not in a position to contest the substance of those findings
in court in order to avoid the negative effects and risks referred to above, which constitutes an unacceptable limitation
on their right to effective judicial protection.

46      At the hearing, the applicant submitted, in essence, referring to the argument used in its second plea and to the judgment
in Case T‐198/03 *Bank Austria Creditanstalt* v *Commission* [2006] ECR II‐1429, that the Commission’s power to publish a decision under Article 21(2) of Regulation No 17 was limited,
first, by the protection of professional secrecy within the meaning of Article 287 EC, which also covers the disclosure of
matters such as those falling within 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), and
secondly, by the principle of the presumption of innocence as provided for in Article 48 of the Charter of Fundamental Rights
of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) and in the light of which the scope of the
Commission’s power of publication should be assessed. The principle of the presumption of innocence prevents the Commission
from disclosing incriminating evidence which the undertaking in question has not had the opportunity to contest in court.

47       Consequently, the publication of the peroxides decision containing findings relating to alleged offending conduct of the
applicant is a breach of Article 21(2) of Regulation No 17.

48      According to the Commission, the fact that the peroxides decision was not sent to the applicant as an addressee has no effect
on its power to publish a version of the decision which contains references to the applicant. This is all the more so since
the applicant was party to the administrative procedure concerning it until the moment it was closed.

49      The Commission takes the view that the only limitation on its power of publication, as provided for in the second part of
Article 21(2) of Regulation No 17, is its obligation to have regard to the legitimate interest of undertakings in the protection
of their business secrets. On the other hand, the first part refers only to the minimum requirements which published information
must satisfy, that is, to state the names of the parties and the main content of the decision.

50      The case‐law confirms this interpretation in recognising that published information which exceeds these minimum requirements
is acceptable. Therefore, publication of the full text of a decision imposing fines is lawful, even if the decisions taken
under Article 15 of Regulation No 17 are not included in those mentioned in Article 21(1) of the regulation (Case 41/69 *Chemiefarma* v *Commission* [1970] ECR 661, paragraphs 101 to 103, and Case 54/69 *Francolor* v *Commission* [1972] ECR 851, paragraphs 30 and 31). Consequently, the Commission was correct to find in the contested decision, on the
basis of that case‐law, that it can also publish decisions, or parts of decisions, in respect of which secondary legislation
has not provided for any publication obligation, provided that this does not lead to the disclosure of business secrets.

51      The Commission also argues that, even if the term ‘parties’ in the first part of Article 21(2) of Regulation No 17 specifies
only the addressees of the decision, it nevertheless follows from the use of the wider concept of ‘undertaking’ – as opposed
to ‘party’ – used in the second half of that sentence that persons other than the parties can be mentioned in the published
decision.

52      The Commission also considers that the non‐binding information relating to the applicant in the peroxides decision, which
is not formally expressed in the operative part of the decision, is not, for the purposes of the case‐law (Case C‐344/98 *Masterfoods and HB* [2000] ECR I‐11369, paragraph 52), the subject of a Commission decision which the national courts must take into account in
any action for damages (Joined Cases T‐125/97 and T‐127/97 *Coca*‐*Cola* v *Commission* [2000] ECR II‐1733, paragraph 86). In the present case, the Commission’s findings in the preamble to the peroxides decision
are thus capable of being the subject of an action for annulment only to the extent to which, as grounds of an act adversely
affecting a person’s interests, they constitute the necessary support for its operative part (Case T‐138/89 *NVB* v *Commission* [1992] ECR II‐2181, paragraph 31, Joined Cases T‐24/93 to T‐26/93 and T‐28/93 *Compagnie maritime belge transports and Others v Commission* [1996] II‐1201, paragraph 150, and Case T‐228/97 *Irish Sugar* v *Commission* [1999] ECR II‐2969, paragraph 178). On the other hand, the information relating to infringements in the preamble, but which
do not constitute such support, do not adversely affect the interests of either the parties or third parties. It follows that
the Commission correctly stated, in the contested decision, that the peroxides decision is not a decision which finds that
the applicant has infringed Article 81 EC and binds national courts in that respect.

53      In fact, the peroxides decision does not contain any binding finding concerning the applicant capable of prejudging the independent
appraisal by a national court, but only a description of the applicant’s conduct as an aid to understanding the origin and
context of the infringement committed by the addressees of the decision. It is therefore not conceivable that the applicant
would be exposed to any actions for damages before national courts without being able to defend itself. In particular, contrary
to the applicant’s claim, the published peroxides decision cannot be used as conclusive evidence against it, or to facilitate,
in any significant way, the production of evidence by third parties in such a dispute.

54      In addition, the Commission takes the view that 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] (OJ 2003 L 1, p. 1) – which has replaced
Article 21 of Regulation No 17 and extended the publication requirements so that decisions imposing fines and periodic penalty
payments are explicitly covered – confirms its approach and certainly does not contradict its past practice on publication.
Publication serves, first, to ensure the transparency of administration, and secondly, as regards, in particular, decisions
imposing fines, as a deterrent, in accordance with the objective of general deterrence recognised by the Court in *Chemiefarma* v *Commission*, paragraph 50 above. According to the Commission, the applicant’s alleged penalty constituted by the publication of the disputed
information is capable neither of calling in question the objective of general deterrence nor of modifying the scope of the
rules on limitation by extending their sphere so as to limit the Commission’s power of publication. In that regard, the Commission
submits that, with regard to the limitation periods for the imposition of penalties, Article 25 of Regulation No 1/2003 now
expressly refers to ‘the powers conferred on the Commission by Articles 23 and 24’, and therefore, does not refer to publication
of decisions under Article 30 of the regulation.

55      Finally, at the hearing, the Commission relied on the approach taken in *Bank Austria Creditanstalt* v *Commission*, paragraph 46 above (paragraph 89). According to that case, the inclusion, in a decision imposing fines, of findings of fact
in respect of a cartel cannot be conditional on the Commission having the power to find an infringement relating thereto or
on its actually having found such an infringement and it is legitimate for the Commission, in a decision finding an infringement
and imposing a penalty, to describe the factual and historical context of the conduct in issue. The Commission also argued
that, according to that judgment, the same is true for the publication of that description, given that publication may be
of use in allowing interested persons to understand fully the reasoning behind such a decision and it is for the Commission
to judge whether the inclusion of such matters is appropriate.

56      Consequently, the plea alleging infringement of Article 21(2) of Regulation No 17 should be rejected.

 (b) Findings of the Court

 Preliminary observation

57      In its first plea, the applicant, in essence, contests the scope of the Commission’s power under Article 21(2) of Regulation
No 17 to publish a decision adopted on the basis of Regulation No 17 which was not addressed to it and in which the Commission
found, in the grounds and not in the operative part, that the applicant had committed an infringement. In support of its plea,
the applicant essentially argues, first, that it is not a ‘party’ within the meaning of the first part of Article 21(2) of
Regulation No 17 in respect of which publication may be made in this way, and secondly, that publication of the peroxides
decision adversely affects it since it discloses information covered by professional secrecy within the meaning of Article 287
EC.

58      The Court considers that it is appropriate to begin with an examination, in the light of Article 287 EC, of the merits of
the second part of the first plea, relating to the scope of the Commission’s power of publication.

 The scope of the Commission’s power of publication under Article 21 of Regulation No 17

59      First of all, it is appropriate to recall the content of Article 21 of Regulation No 17, which governs the scope of the Commission’s
power of publication.

60      Article 21(1) of Regulation No 17 lists the types of decisions which the Commission is authorised to publish, a list to which,
according to case‐law, decisions imposing fines under Article 15 of the regulation must be added (see, to that effect, *Chemiefarma* v *Commission*, paragraph 50 above, paragraphs 101 to 104, and *Francolor* v *Commission*, paragraph 50 above, paragraphs 30 and 31). Article 21(2) of the regulation provides, in the first part of the sentence,
that ‘[t]he publication shall state the names of the parties and the main content of the decision’, and in the second part,
that the Commission must ‘have regard to the legitimate interest of undertakings in the protection of their business secrets’.

61      More generally, the Court would point out that, even if publication of a measure is not explicitly prescribed by the Treaties
or by another act of general application, it is apparent from the scheme laid down by the Treaties, in particular Article 1
EU, Articles 254 EC and 255 EC, and the principle of openness and the requirement of transparency in acts of the Community
institutions that are enshrined in those provisions, that, in the absence of provisions explicitly ordering or prohibiting
publication, the rule is that the institutions have a power to publish acts which they adopt. However, there are exceptions
to that rule in so far as Community law, in particular through provisions ensuring compliance with the obligation of professional
secrecy, prevents disclosure of such acts or of certain information contained in them. Thus, the aim of Article 21(2) of Regulation
No 17 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 (*Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, paragraphs 69 and 79).

62      In addition, the Court would point out that the second part of Article 21(2) of Regulation No 17, like Article 20 of the Regulation,
is only the expression in secondary Community legislation of the protection of professional secrecy laid down in Article 287
EC and that the procedure provided for in Article 9 of Decision 2001/462 aims merely to implement the procedural requirements
which the Court prescribed to that end in *AKZO Chemie* v *Commission*, paragraph 38 above (in particular paragraphs 29 and 30; see also, to that effect, *Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, paragraph 28). Thus this procedure applies where the Commission, in the course of competition proceedings,
intends to disclose information capable of undermining the protection of professional secrecy within the meaning of Article 287
EC (first and second paragraphs), and is applicable whatever form that disclosure may take, including publication of a decision
in the *Official Journal of the European Communities* (third paragraph) or on the Internet.

63      The Court would point out, next, that neither Article 287 EC nor Regulation No 17 state explicitly what information, apart
from business secrets, is covered by the obligation of professional secrecy. It is apparent, however, from the open wording
of Article 287 EC (which prohibits disclosure of ‘information of the kind covered by the obligation of professional secrecy,
in particular information about undertakings, their business relations or their cost components’), from Article 13(1) of Regulation
No 2842/98 and from the case‐law, that the concept of ‘information covered by the obligation of professional secrecy’ also
includes confidential information other than business secrets (Case 145/83 *Adams* v *Commission* [1985] ECR 3539, paragraph 34, and Case T‐353/94 *Postbank* v *Commission* [1996] ECR II‐921, paragraph 86).

64      It follows from this wider understanding of the concept of ‘information covered by the obligation of professional secrecy’
that Article 21 of Regulation No 17 and Article 9 of Decision 2001/462 must be interpreted as meaning that they apply, in
the same way as Article 13(1) of Regulation No 2842/98, both to business secrets and to other confidential information. In
addition, the confidentiality of information, for which professional secrecy requires that it be protected under Article 287
EC, may also stem from other provisions of primary or secondary Community law, such as Article 4 of Regulation No 1049/2001
(cited in paragraph 46 above) or from Article 286 EC and 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) (see also, to that effect, *Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, paragraphs 34 and 35).

65      As regards, generally, the nature of business secrets or other information covered by the obligation of professional secrecy,
it is necessary, first of all, that such business secrets or confidential information be known only to a limited number of
persons. Next, it must be information whose disclosure is liable to cause serious harm to the person who has provided it or
to third parties (*Postbank* v *Commission*, paragraph 63 above, paragraph 87, and see also Commission Notice 2005/C 325/07 on the rules for access to the Commission
file in cases pursuant to Articles 81 [EC] and 82 [EC] (OJ 2005 C 325, p. 7), paragraphs 3.2.1 and 3.2.2). Finally, the interests
liable to be harmed by disclosure must be worthy of protection. The assessment as to the confidentiality of a piece of information
requires, in this regard, the individual legitimate interests opposing disclosure of the information to be weighed against
the public interest that the activities of the Community institutions take place as openly as possible (*Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, paragraph 71).

66      It follows, first, that when the hearing officer takes a decision under the third paragraph of Article 9 of Decision 2001/462,
he must not merely examine whether the version of a decision taken under Regulation No 17 and intended for publication contains
business secrets or other confidential information enjoying similar protection. He must also check whether that version contains
other information which cannot be disclosed to the public either on the basis of rules of Community law affording such information
specific protection or because it is information of the kind covered by the obligation of professional secrecy (*Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, paragraph 34). Secondly, in the context of this review of legality, the Court must ensure that the hearing
officer observes the limits of his terms of reference, as just defined, and must therefore determine whether the hearing officer
correctly applied the protection of professional secrecy in the particular case. However, the Court cannot complain that the
hearing officer did not correct any procedural irregularities committed by the Commission when adopting the decision which
is to be published, since the review of such procedural irregularities does not fall within his powers. Therefore, the Court
cannot call in question either the procedural legality or the merits of the decision intended for publication, even if that
decision were to contain serious errors.

67      It is in the light of the principles set out in paragraphs 59 to 66 above that the Court must ascertain whether and to what
extent the information disputed by the applicant is protected by the obligation of professional secrecy under Article 287
EC.

 The protection of the disputed information through the obligation of professional secrecy

–       General observation

68      In the light of the foregoing, the Court must examine whether the disputed information constitutes information covered by
the obligation of professional secrecy under Article 287 EC, as that concept is interpreted in paragraphs 63 and 65 above,
and, in particular, ascertain whether publication of that information is likely to cause serious harm to the applicant.

–       The aspects of the protection of professional secrecy taken into account by the hearing officer

69      The Court would point out, first of all, that, after the applicant had disputed the publication of certain passages relating
to it in the peroxides decision and had made its request for confidential treatment of those passages, the hearing officer,
in the contested decision, merely ascertained whether the information contested by the applicant constituted business secrets,
disclosure of which would be likely to harm its legitimate interests.

70      It must be borne in mind that, even if the hearing officer thereby formally restricted the subject‐matter of his examination,
in the course of his assessment he nevertheless adopted a position on whether disclosure of the disputed information would
be harmful, and therefore, whether it was confidential. Thus the hearing officer examined, first, whether publication of the
disputed information was capable of providing to third parties evidence enabling them to bring actions for damages against
the applicant before national courts and, secondly, whether such publication might cause serious harm to the applicant’s reputation
on the market.

71      It is apparent from the foregoing, as from paragraph 21 above, that, in essence, in reply to the applicant’s request for confidential
treatment, the hearing officer also examined whether the disputed information constituted confidential information other than
business secrets. In that regard, the hearing officer concluded that the applicant’s interest in the removal of the disputed
information from the definitive version of the peroxides decision intended for publication was not sufficient.

–       The substance of the contested decision in relation to observance of the obligation of professional secrecy

72      The Court would point out that the interest of an undertaking which the Commission has fined for breach of competition law
in the non-disclosure to the public of details of the offending conduct of which it is accused does not merit any particular
protection, given, first, the public interest in knowing as fully as possible the reasons for any Commission action, the interest
of 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, second, the fined undertaking’s ability to seek judicial review of such a decision
(*Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, paragraph 78). The Court considers that this appraisal applies *mutatis mutandis* to a decision in which an undertaking is found to have committed an infringement, but proceedings against it are barred by
limitation pursuant to Article 1 of Regulation No 2988/74, the Commission being implicitly authorised to take that decision
on the basis of the rules laid down by Regulation No 17, provided that it shows a legitimate interest for doing so (Joined
Cases T‐22/02 and T‐23/02 *Sumitomo Chemical and Sumika Fine Chemical* v *Commission* [2005] ECR II‐4065, paragraphs 60 to 63).

73      However, the application of the case‐law cited in paragraph 72 above presupposes that the infringement found at least appears
in the operative part of the decision and that the decision is addressed to the undertaking concerned so that it may contest
that infringement in court. As the Commission itself argues, regardless of the grounds on which such a decision is based,
only the operative part thereof is capable of producing legal effects and, as a consequence, of adversely affecting an undertaking’s
interests. By contrast, the assessments made in the grounds of a decision are not in themselves capable of forming the subject
of an application for annulment. They can be subject to judicial review by the Community judicature only to the extent that,
as grounds of a measure adversely affecting a person’s interests, they constitute the essential basis for the operative part
of that measure (order in Case C‐164/02 *Netherlands* v *Commission* [2004] ECR I‐1177, paragraph 21; Case T‐213/00 *CMA CGM and Others* v *Commission* [2003] ECR II‐913, paragraph 186), and if, in particular, those grounds are likely to alter the substance of what was decided
in the operative part of the measure in question (see, to that effect, Case T‐251/00 *Lagardère and Canal+* v *Commission* [2002] ECR II‐4825, paragraphs 67 and 68).

74      In the present case, it follows from the foregoing that, regardless of whether or not the Commission was justified in finding,
in the grounds of the peroxides decision, an infringement attributable to the applicant, in the absence of such a finding
in the operative part, the applicant did not have standing to bring an action against that decision. Accordingly, an action
brought by the applicant against the peroxides decision seeking review by the Court of First Instance of the substance of
the disputed information would, in any event, have been inadmissible, even if brought within the time‐limit provided for in
the fifth paragraph of Article 230 EC (see, to that effect, *Compagnie maritime belge transports and Others* v *Commission*, paragraph 52 supra, paragraph 150).

75      In addition, as the applicant admits, the scope of the Commission’s power to adopt and publish decisions on the basis of Regulation
No 17 and the scope of the protection of professional secrecy must be interpreted in the light of general principles and fundamental
rights, which are an integral part of the Community legal order, and, in particular, of the principle of presumption of innocence
– as reaffirmed in Article 48 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December
2000 (OJ 2000 C 364, p. 1) – which applies to the procedures relating to infringements of the competition rules applicable
to undertakings that may result in the imposition of fines or periodic penalty payments (Case C‐199/92 P *Hüls* v *Commission* [1999] ECR I‐4287, paragraph 150; Joined Cases T‐67/00, T‐68/00, T‐71/00 and T‐78/00 *JFE Engineering and Others* v *Commission* [2004] ECR II‐2501, paragraph 178; *Sumitomo Chemical and Sumika Fine Chemicals* v *Commission*, paragraph 72 above, paragraphs 104 and 105).

76      The Court also observes that the presumption of innocence implies that every person accused is presumed to be innocent until
his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability
of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees
accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits
of the case (*Sumitomo Chemical and Sumika Fine Chemicals* v *Commission*, paragraph 72 above, paragraph 106). Furthermore, the guilt of a person accused of an infringement is established definitively
only where the decision finding that infringement has acquired the force of *res judicata*, which implies either the absence of an appeal against that decision by the person concerned within the time‐limits provided
for in the fifth paragraph of Article 230 EC, or, after such an appeal, the definitive closure of the contentious proceedings,
in particular, by a judicial decision confirming the lawfulness of that decision.

77      As a consequence, findings which the person charged with an infringement, even though he contests their merits, has not had
the opportunity to contest before the Community judicature cannot be regarded as established in law. The fact that such findings
evade any review by the courts, and therefore, in the event that they are unlawful, any correction by the Community judicature,
is manifestly contrary to the principle of the presumption of innocence. Any other interpretation would upset the system of
division of functions and the institutional balance between the administration and the courts, on the ground that, where findings
are contested, it is for the courts alone to make a definitive ruling on the existence of sufficient evidence that an undertaking
is liable for an infringement of the rules on competition.

78      The Court considers, further, that, since the Commission’s findings relating to an infringement committed by an undertaking
are capable of infringing the principle of the presumption of innocence, those findings must, in principle, be regarded as
confidential as regards the public, and therefore as being of the kind covered by the obligation of professional secrecy.
This principle stems, inter alia, from the need to respect the reputation and dignity of the person concerned as that person
has not been finally found guilty of an infringement (see, by analogy, Case T‐15/02 *BASF* v *Commission* [2006] ECR II‐497, paragraph 604). The confidentiality of such information is confirmed by Article 4(1)(b) of Regulation
No 1049/2001, which provides that information, whose disclosure would harm the protection of privacy and the integrity of
the individual, is to be protected. Finally, the confidentiality of that information cannot depend on whether, and to what
extent, it is of probative value for the purpose of proceedings at national level.

79      In that regard, the defendant cannot rely on paragraph 89 of the ruling in *Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, given that the Court’s appraisal in that part of the ruling does not concern a similar situation to
that in the present case, in which the applicant has no possibility of contesting the merits of the assertions relating to
it in the peroxides decision (*Bank Austria Creditanstalt* v *Commission*, paragraph 46 above, last line of paragraph 78). It is clear from the case‐law cited in paragraphs 72 and 73 above that the
Commission cannot adopt a decision finding an infringement after expiry of the limitation period, where such a finding is
not justified by the existence of a legitimate interest and where the undertaking concerned has no possibility of seeking
review of that finding by the Community judicature (see also, to that effect, *Coca‐Cola* v *Commission*, paragraph 52 above, paragraph 86).

80      In the present case, as the Court has pointed out in paragraph 74 above, the applicant did not have standing to bring an action
against the peroxides decision, given, in particular, that its participation in the infringement was not referred to in the
operative part even though it contested the merits of the grounds of that decision in which its participation in the infringement
was mentioned. Such a situation is contrary to the principle of the presumption of innocence and infringes the protection
of professional secrecy, as interpreted in paragraphs 75 to 78 above, which require that respect for the reputation and dignity
of the applicant be ensured. The disputed information must therefore be held to be covered by the obligation of professional
secrecy within the meaning of Article 287 EC. In that regard, the Court would point out, finally, that the Commission itself
accepted, during the hearing, that it could have published the peroxides decision by limiting itself to finding that the applicant
had participated in the administrative procedure and to closing the investigation in its regard by reason of the limitation
period. It must be held that, in those circumstances, there is therefore no public interest in publishing the disputed information
that is capable of prevailing over the applicant’s legitimate interest in having such information protected.

81      It follows from the foregoing that the hearing officer, in finding that the disputed information was not worthy of protection
and that its publication would not cause serious and unjust harm to the applicant’s interests, misapplied the protection of
professional secrecy in the present case. As a consequence, the contested decision must be annulled in so far as it rejects
the applicant’s request for confidential treatment, and it is not necessary to rule on the applicant’s other pleas in law
and complaints.

**Costs**

82      Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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 Commission has been unsuccessful, it
must be ordered to pay the costs in accordance with the form of order sought by the applicant.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1.      **Annuls Commission Decision (2004) D/204343 of 1 October 2004;**

2.      **Orders the Commission to pay the costs.**

| | | |
| --- | --- | --- |
| Jaeger | Azizi | Cremona |

Delivered in open court in Luxembourg on 12 October 2007.

| | | |
| --- | --- | --- |
| E. Coulon | | M. Jaeger |

| | | |
| --- | --- | --- |
| Registrar | | President |

Table of contents

Legal context

Facts, procedure and forms of order sought

Law

A –  Admissibility of the application for annulment

1.  Arguments of the parties

2.  Findings of the Court

B –  Substance

1.  Preliminary observation

2.  The plea alleging infringement of Article 21 of Regulation No 17

a)  Arguments of the parties

b)  Findings of the Court

Preliminary observation

The scope of the Commission’s power of publication under Article 21 of Regulation No 17

The protection of the disputed information through the obligation of professional secrecy

–  General observation

–  The aspects of the protection of professional secrecy taken into account by the hearing officer

–  The substance of the contested decision in relation to observance of the obligation of professional secrecy

Costs

---

[\*](#Footref*) Language of the case: German.