Judgment — ECLI:EU:T:2015:505
Date: 2015-07-15
Language of the case: English
Court formation: Third Chamber
Subject matter: Competition
Procedure: Action for annulment - unfounded
Origin: Belgium;Germany;France;United Kingdom;Italy

summary version of its decision, containing solely the names of the addressees, a reference to the products concerned and a general description of the infringement. Consequently, the applicants cannot request that the references to their customers be omitted from the published version of the carglass decision on the ground that those customers would be able to deduce the names of the natural persons who took part in the anticompetitive arrangements. On the other hand, the reference to the names of customers as part of a description of contacts among competitors clarifies the fact that the contacts concerned related to one or more particular customers. The effect of omitting any reference to the name(s) of a customer/customers or model(s) will be that all the customers of the applicants will suspect that the person in charge of their account took part in those contacts. In that context, reference by name to the customer(s) concerned may even reduce the uncertainty and suspicion which would result from all names being omitted from the published version of the carglass decision. 48 As regards the applicants’ argument relating to the public interest pursued by the Commission’s leniency programme, that must also be rejected. 49 In particular, this case does not concern a challenge to a refusal of access to documents relating to competition proceedings, which was at the heart of the case which gave rise to the judgment of 14 June 2011 in Pfleiderer (C‑360/09, ECR, EU:C:2011:389), but concerns rather the Commission’s intended publication of certain information contained in documents or statements submitted to it voluntarily by the applicants, in order to qualify for the leniency programme. 50 As part of this complaint, the applicants claim, in essence, that the publication of the information which they communicated voluntarily in the course of the investigation in order to qualify for the leniency programme would undermine the purpose of the Commission’s investigations. 51 The applicants do not invoke any rule of law which the Commission has allegedly infringed solely by reason of the fact that the intended publication of information supplied as part of a leniency programme might have an effect on the implementation of that programme with regard to future investigations. Further, that particular argument involves the public interest in being informed as fully as possible of the reasons behind any action of the Commission, the interest of economic operators in being informed of conduct which might render them liable to penalties and, last, the Commission’s interest in maintaining the effectiveness of its leniency programme. Yet those specific interests are not interests peculiar to the applicants, and consequently it is for the Commission alone to weigh, in the circumstances of this case, the effectiveness of the leniency programme, on the one hand, and the interest of the public and economic operators to be informed of the content of the Commission’s decision and to bring proceedings to protect their rights, on the other. 52 That conclusion cannot be called into question by the applicants’ argument that the information for which they sought confidential treatment is not essential to the understanding of the operative part of the carglass decision and is therefore not covered by the obligation to publish imposed on the Commission by Article 30(2) of Regulation No 1/2003. There is no need to assess whether that is the case; suffice it to state that it is not the aim of that provision to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is fuller than the minimum necessary and also to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy (judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 27 above, EU:T:2006:136, paragraph 79). 53 The applicants’ argument that the Hearing Officer did not take sufficient account of their interest as applicants for leniency as part of a weighing of interests in favour of and against the disclosure of the Category I information must be rejected. It is clear from the foregoing analysis that the information concerned cannot be regarded as being known to a limited number of persons and that it is historical, and consequently a weighing of interests in the sense of the case-law cited in paragraph 27 above serves no purpose. In so far as that argument can be regarded as relating to the rights which the applicants claim from the 2006 Leniency Notice and the earlier version of that notice, namely the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002, C 45, p. 3, ‘the 2002 Leniency Notice’), it will be examined in relation to the second, third and fourth pleas in law. 54 The sixth plea in law must therefore be rejected. The first plea in law: infringement of Article 8 of Decision 2011/695 55 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. 56 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. 57 It is clear, next, from recitals 14, 17 and19 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. 58 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. 59 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. 60 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. 61 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 62 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. 63 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. 64 Those arguments cannot be accepted. 65 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. 66 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. 67 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. 68 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’. 69 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.’ 70 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. 71 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. 72 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. 73 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. 74 The second and third pleas in law must therefore be rejected. The fourth plea in law: infringement of the principle of good administration 75 The applicants claim that the intended publication of the identity of customers amounts to a departure from established practice adopted by the Commission in relation to publication, both before and after the carglass decision. In accordance with that practice, the names of customers are to be redacted on the ground that that is confidential information. That departure is arbitrary and unexpected, and consequently it constitutes a breach of the principle of good administration. 76 In that regard, it must be recalled that the Commission is entitled, within the framework of its powers in relation to the implementation of the rules of competition law within the European Union, to publish, with due regard to the rules governing the protection of professional secrecy referred to in paragraphs 24 to 29 above, versions of its decisions that are fuller than the minimum required by Article 30 of Regulation No 1/2003, encouraging the actions of persons harmed by the infringement, that being a component of competition policy (see, to that effect, judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 27 above, EU:T:2006:136, paragraphs 78 and 79). Accordingly, as is also true with regard to the general level of fines (see, to that effect, judgment of 7 June 1983 in Musique Diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 109), the Commission is entitled to adjust its approach to the publication of its decisions to the needs of its competition policy. The supervisory task conferred on the Commission by Article 101(1) TFEU and Article 102 TFEU not only includes the duty to investigate and punish individual infringements but also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles (judgment of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraph 170). Consequently, even if the contested decision might lead one to believe that there was a change in the Commission’s approach as regards the degree of detail in the published version of the carglass decision as compared with previous cases, that alone is not, in the light of the analysis of the sixth plea in law, capable of affecting the lawfulness of the contested decision, from the perspective of the principle of good administration. 77 The fourth plea in law must therefore be rejected. The fifth plea in law: infringement of the provisions relating to public access to documents of the institutions 78 The applicants claim that, to the extent that the Commission is required to refuse access to documents in accordance with Article 4(1) and (2) of Regulation No 1049/2001, it must redact, in the published version of its decision, information derived from those documents. The effect of the contested decision is to permit the Commission to publish information undermining the protection of the purpose of its investigation and the integrity of the individual, though there is no overriding public interest justifying such publication. Both the 2002 and the 2006 Leniency Notices provide specific assurances regarding more favourable treatment, to the extent possible, of applicants for leniency, as compared with the other addressees of the Commission’s decision. Furthermore, the intended publication infringes the rules established in the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 TFEU and 102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7). 79 In that regard, as regards the argument concerning an infringement of Regulation No 1049/2001, suffice it to state that the rules concerned relate to access to documents which are part of the investigation file. Accordingly, for the reasons set out in paragraph 29 above, those rules are not applicable to publication of the decision which the Commission adopted on the conclusion of that investigation. The same is true of the notice on the rules for access to the Commission file in competition cases. In accordance with paragraphs 1 and 3 of that notice, it relates exclusively to access to documents in a cartel investigation file under Article 27(1) and (2) of Regulation No 1/2003 and Article 15(1) of Regulation No 773/2004, granted to the persons to whom a statement of objection was addressed. Consequently, those arguments must be rejected. 80 As regards the argument concerning the alleged obligation to provide the applicants with more favourable treatment than that granted to the other addressees of the carglass decision with respect to the publication of information submitted under the leniency programme, that argument has already been rejected in paragraphs 64 to 73 above. 81 In the light of the foregoing analysis, the fifth plea in law must be rejected and consequently the action must be dismissed in its entirety. Costs 82 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 83 Since the applicants have been unsuccessful, they must be ordered to pay the costs of this case, as applied for by the Commission. 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] * Language of the case: English. 1 This judgment is published in extract form.