Case C‑162/15 P-R

Evonik Degussa GmbH

v

European Commission

‛Application for interim measures — Appeal — Administrative procedure — Publication of a decision finding the existence of an unlawful cartel on the European market for hydrogen peroxide and perborate — Commission Decision rejecting a request for confidential treatment of some information in the decision finding the existence of that cartel — Leniency Notice — Judgment of the General Court of the European Union dismissing the action for annulment of that decision — Application to suspend the operation of that decision — Prima facie case — Urgency — Weighing of interests’

Summary — Order of the Vice-President of the Court, 2 March 2016

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Balancing of all the interests involved — Suspension of operation of a Commission decision on the confidential treatment of information in a decision finding an infringement of the competition rules — Need to maintain the effectiveness of the Court’s decision in the main proceedings

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Damage of a financial nature — Damage not quantifiable — Damage not reparable by means of an action for damages — Whether irreparable

Competition — Administrative procedure — Commission decision finding an infringement — Publication of information provided to the Commission voluntarily by an undertaking which participated in the infringement in order to benefit from the leniency programme — Discretion of the Commission — Leniency notices — Self‑limitation of its discretion — Scope

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Prima facie examination of the pleas in law put forward in support of the main action — Confidentiality of information relating to a competition rules infringement not yet examined by the Court — Plea not prima facie lacking in foundation

Competition — Administrative procedure — Commission decision finding an infringement — Publication of a non‑confidential version containing information submitted voluntarily to the Commission to qualify for the leniency programme — Situation comparable, in practice, to that of access to documents — Relevance of findings on access to documents

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Prima facie examination of the pleas in law put forward in support of the main action — Pleas not prima facie unfounded — Scope — Difficult legal issue — Confidentiality of information relating to a competition rules infringement not yet examined by the Court — Included

Application for interim measures — Suspension of operation of a measure — Judgment of the General Court subject of an appeal — Suspension of operation of decision unsuccessfully challenged before the General Court — Conditions — Prima facie case — Extent of the burden of proof on the applicant

See the text of the judgment. (see para. 21)

See the text of the judgment. (see paras 22-25)

As regards disputes concerning interim protection for information alleged to be confidential, the judge hearing the application for interim measures — if he is not to disregard the intrinsically ancillary and provisional nature of proceedings for interim measures — may, as a rule, conclude that there is no prima facie case only where the information in question is obviously not confidential. That does not apply where there is a difficult legal issue the solution to which is not immediately obvious and which has been raised in a more general dispute, involving an appeal that seeks to have set aside the judgment of the General Court rejecting confidential treatment of the information at issue, a dispute in which the Court has not yet given a ruling, on either the question of which criteria are to be taken into consideration, in order to establish whether particular information constitutes a business secret, or on the question of the alleged confidentiality of the information at issue. (see paras 29, 47, 48)

The disclosure of information, in accordance with Article 30 of Regulation No 1/2003, and the right of access to documents, under Regulation 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, are legally distinct. However, to the extent that the disclosure concerns extracts from documents, that disclosure necessarily entails that third parties become aware of that information, the confidentiality of which is, consequently, no longer protected. In circumstances where an undertaking that has submitted to the Commission information on an infringement of the European Union competition rules, pursuant to a Commission Notice on immunity from fines and reduction of fines in cartel cases [Leniency Notice], challenges the power of the Commission to publish extracts from that information, while it is true that considerations concerning access to the file pursuant to Regulation No 1049/2001 are not directly applicable, it is conceivable that the findings relating to that regulation to the effect that the Commission is entitled to presume that the disclosure of documents in a file relating to proceedings under Article 101 TFEU is, as general rule, detrimental to the protection of the commercial interests of undertakings involved in such proceedings, may, however, be relevant. Consequently, the view may conceivably be taken that generalised access to such documents would be likely to jeopardise the balance which the legislature of the European Union sought to ensure, in Regulation No 1/2003 and in Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 and 102 TFEU, between, on the one hand, the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information in order to enable it to ascertain whether a concerted practice is in existence and to determine whether that practice is compatible with Article 101 TFEU, and, on the other, the guarantee of increased protection, by virtue of the obligation of professional secrecy and business secrecy, for the information so provided to the Commission. It seems that it cannot immediately be ruled out that the disclosure of extracts from the documents concerned in the non-confidential version of the decision finding an infringement of the competition rules is not liable to have the same effects, to the extent that such disclosure is the equivalent, in essence, of generalised access, albeit partial, to those documents. If that were to be the case, that would involve not the Court permitting an individual to rely on a presumption that is accepted to be solely available to the Commission, but the Court recognising, by analogy, that the considerations on which the Court justified that presumption are applicable to a similar situation and, possibly, justifying, on those same considerations, a mirror image presumption that the undertakings concerned are as a general rule entitled to expect, other than in cases where that presumption can be rebutted, that the information provided within the framework of a leniency programme should be covered by the obligation of professional secrecy. (see paras 50, 52-55)

In order to assess whether the condition relating to a prima facie case is satisfied in the examination of an application for interim measures seeking the suspension of operation of a Commission decision that rejected a request for confidential treatment made by the applicant for interim measures, it must be held that the question, whether information submitted to the Commission, on an infringement of European Union competition rules, pursuant to a Commission Notice on immunity from fines and reduction of fines in cartel cases, is confidential, is not obvious when there is evidence that calls into question the treatment by the Commission of certain confidential information. In that regard, first, a distinction between documents submitted to the Commission pursuant to a Leniency Notice and the information contained in those documents, and not between those documents and the findings of fact by the Commission that are based on the content of those documents, is not self-evidently justified, particularly where the information concerned is presented in the form of extracts from those documents. The subject matter of the protection accorded by the obligation of professional secrecy is the information that merits such protection and is given effect by a prohibition on making available to third parties the support on which that information is stored, such as a document. Second, if such a distinction were to be held to be unfounded, it is conceivable that extracts from confidential documents should be treated in the same way that those documents are treated, notably by Leniency Notices, according to which the disclosure of such documents would undermine certain public or private interests even after the decision has been taken, notices by means of which the Commission expressly extended the reasons for maintaining the confidentiality of documents to interests protected by Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, to include, consequently, the commercial interests referred to in the first indent of Article 4(2) of that regulation. Third, the circumstance that, according to those notices, the fact that immunity or a reduction in respect of fines is granted cannot protect an undertaking from the civil law consequences of its participation in an infringement of the competition rules does not seem to be sufficient, in itself, to preclude the undertakings concerned from being able to rely on the confidentiality of the documents in question. It follows that it cannot be immediately ruled out that an undertaking could expect the Commission not to make public the documents concerned, either wholly or in part, by sending them to third parties or by disclosing them in the form of extracts in the non-confidential version of the decision finding an infringement of Article 101 TFEU. In any event, if the Commission were in fact to be able to publish, in accordance with Article 30 of Regulation No 1/2003, the information at issue, it is also not inconceivable that the Commission should be required, even notwithstanding the absence of assurances that could justify legitimate expectations being held by undertakings, to provide clear and detailed guidance on its decision-making practice and that, if that were not the case, any clarification of unclear rules should be undertaken not in such a way as to disadvantage parties to proceedings and sound administration, but rather by adopting new rules that apply to future cases and that have the requisite degree of clarity. That is all the more necessary where the Commission has previously published a non-confidential version of a decision finding an infringement of the competition rules and where, at the time of that publication, the Commission had taken account of objections concerning the confidentiality of certain information and had not disclosed the greater part of the information for which the undertaking concerned had requested confidential treatment. (see paras 57-59, 61, 62, 64-66)

See the text of the judgment. (see paras 60)

See the text of the judgment. (see paras 82, 86, 87, 92-95)