Keywords

Summary



Keywords

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))

Summary

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)