Case T‑341/12

Evonik Degussa GmbH

v

European Commission

‛Competition — Administrative procedure — European market for hydrogen peroxide and perborate — Publication of a decision finding an infringement of Article 81 EC — Rejection of a request for confidential treatment of information supplied to the Commission pursuant to its Leniency Notice — Obligation to state reasons — Confidentiality — Professional secrecy — Legitimate expectations’

Summary — Judgment of the General Court (Third Chamber), 28 January 2015

Competition — Administrative procedure — Commission decision finding an infringement — Publication of a non-confidential version containing information provided to the Commission voluntarily in order to benefit from the leniency programme — No infringement of the principle of finality under Article 28 of Regulation No 1/2003

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 — Scope — Change from previous practice — No breach of the principle of the protection of legitimate expectations

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 the Commission’s discretion — Scope — No prohibition on publicising information contained in applications for leniency

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 — No infringement of that undertaking’s right to protection of private life

Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Public interest in the transparency of EU action to be balanced against legitimate interests opposing disclosure — Publication of information provided to the Commission voluntarily in order to benefit from the leniency programme — Balance of interests justifying communication of the said information and its protection

Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria — Interests, likely to be damaged by the disclosure of information, worthy of protection — Public interest in the transparency of EU action to be balanced against legitimate interests opposing disclosure — Interest of an undertaking that certain information concerning its conduct not be revealed — Interest not worthy of any particular protection in the case of undertakings which participated in an infringement of EU competition rules

Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria — Disclosure likely to cause serious harm — Information consisting in description of elements constituting an infringement of the competition rules — Publication of that information making it easier to establish the civil liability of the undertakings concerned

Article 8 of Decision 2011/695 on the function and terms of reference of the hearing officer in certain competition proceedings aims to implement, on a procedural level, the protection offered by Article 28(2) of Regulation No 1/2003, stating that, without prejudice to cooperation between the Commission and the competition authorities of the Member States, and to the possibility given to addressees of a statement of objections to consult the investigation file, the Commission and the said authorities, their officials, agents and other persons working under the supervision of those authorities, and the agents and officials of other authorities of the Member States, are required not to disclose information which they have gathered or exchanged pursuant to the said regulation and which, by its nature, is covered by professional secrecy. Thus, Article 8 draws a distinction between the protection of the confidentiality of information vis-à-vis third parties having the right to be heard in the course of proceedings applying the competition rules and the wider protection which must be observed when publication in the Official Journal of the European Union is envisaged. Consequently, when the hearing officer takes a decision concerning the disclosure, by publication in the Official Journal, of a decision penalising an infringement of Article 81 EC, he is required not only to examine whether the version of the decision presented to him for examination contains business secrets or other confidential information enjoying similar protection, but also to check whether that version contains other information which cannot be disclosed to the public either on the basis of rules of EU law affording such information specific protection or because it is information of the kind covered by the obligation of professional secrecy. However, the principles of legitimate expectations and equal treatment are not rules intended to afford specific protection against disclosure to the public of information voluntarily communicated to the Commission in order to benefit from the leniency programme. Unlike the rules in Regulation No 45/2001 concerning the treatment of personal data by the EU bodies or institutions, or in Article 4 of Regulation No 1049/2001 concerning exceptions to the right of access to documents, such principles are not specifically intended to protect the confidentiality of information or documents. As those principles do not therefore come, as such, within the protection which EU law confers on information which came to the knowledge of the Commission in the context of proceedings applying the competition rules, they fall outside the framework of the task entrusted to the hearing officer under Article 8 of Decision 2011/695. (see paras 33, 41-43)

See the text of the decision. (see paras 54-67)

See the text of the decision. (see paras 84, 86, 162)

See the text of the decision. (see para. 89)

See the text of the decision. (see paras 90, 94)

See the text of the decision. (see paras 96-98)

For information to fall, by its nature, within the scope of professional secrecy and thus benefit from protection against public disclosure, disclosure of that information must, in particular, be likely to cause serious harm to the person who provided it or to third parties. As regards information consisting in the description of component elements of an infringement of Article 81 EC, disclosure of such information is likely to cause serious harm to an undertaking which participated in that infringement, since, first, that disclosure would be likely to damage its reputation and affect its position in business relations by highlighting its major role in the origin and pursuance of the infringement of Article 81 EC, and, second, the information would be likely to make it easier for natural or legal persons who consider that they have been harmed by the infringement to establish the civil liability of the undertaking. (see paras 101-103, 105)

For information to fall, by its nature, within the scope of professional secrecy and thus benefit from protection against public disclosure, the interests likely to be harmed by such disclosure must be objectively worthy of protection. That condition implies that the assessment of the confidential nature of information requires the legitimate interests opposing disclosure of the information to be weighed against the public interest that the activities of the institutions take place as openly as possible. In that regard, the interest of an undertaking which the Commission has fined for an infringement of competition law in the details of the offending conduct of which it is accused not being disclosed to the public does not in principle warrant any particular protection, given the public interest in knowing as fully as possible the reasons behind 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 in view of the fact that the undertaking which has been fined may seek judicial review of such a decision. Similarly, the interest of a company which has participated in an infringement of Article 81 EC in avoiding such actions is not an interest worthy of protection, particularly in the light of the right which any person has to claim damages for loss caused to him by conduct liable to restrict or distort competition. It also follows that the complaints which the applicant bases on a possible breach of the principle of impartiality referred to in Article 41 of the Charter of Fundamental Rights and of the principle of equality of arms in the context of national proceedings are unfounded and must be rejected. (see paras 106, 107, 110, 111)

The effectiveness of leniency programmes could be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities or the Commission were to grant the leniency applicant exemption, in whole or in part, from the fine which they could have imposed. A person involved in an infringement of competition law, faced with the possibility of such disclosure, might be deterred from taking advantage of the possibility afforded by such leniency programmes, in view, in particular, of the fact that the documents communicated to the Commission or the statements made to it in that respect are liable to be self-incriminating. However, the right to obtain compensation for the damage caused by a contract or by conduct liable to restrict or distort competition can make a significant contribution to the maintenance of effective competition in the European Union and thus plays a part in the attainment of an objective of public interest. It is in application of those principles that the Court of Justice, on a request to give a preliminary ruling in the context of disputes relating to requests by undertakings believing themselves to have been adversely affected by infringements of competition law for access to the investigative files held by national competition authorities, has invited the national courts hearing those disputes to weigh up the interests in favour of disclosure of the information supplied voluntarily by leniency applicants and the interests in favour of the protection of that information. In a case which concerns not a challenge to a refusal of access to documents relating to a competition procedure, but the Commission’s proposed publication of certain information contained in documents or statements submitted or made to it voluntarily by an undertaking involved in a breach of competition law with a view to benefiting from the leniency programme, and in which it has been claimed that publication of the information which it communicated voluntarily during the investigation in the hope of benefiting from the leniency programme would jeopardise the objective of the Commission’s investigations, that latter assertion does not reveal the existence of a legal rule that the Commission breached merely because the proposed publication of the information supplied in connection with of leniency might have an impact on the implementation of the leniency programme with respect to future investigations. In addition, that particular argument involves the interest of the public in knowing as fully as possible the reasons for any action taken by the Commission, the interest of economic operators in being aware of conduct likely to incur penalties and, last, the interest of the Commission in maintaining the effectiveness of its leniency programme. Those particular interests are not specific to the applicant and it is therefore for the Commission to weigh up, in the circumstances of the case, the effectiveness of the leniency programme, on the one hand, and the interest of the public and economic operators in being aware of the content of its decision and acting in order to protect their rights, on the other. That conclusion cannot be called into question by the argument that, in essence, the information in respect of which the undertaking sought confidential treatment is not essential for an understanding of the operative part of the Commission’s decision finding a breach of EU competition law and is therefore not covered by the obligation to publish decisions imposed on the Commission by Article 30(2) of Regulation No 1/2003. That provision is not intended to restrict 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. (see paras 113-115, 117-120)

Whilst compliance with Article 8 of the European Convention on Human Rights is also binding on the Commission, in principle, where it receives information from undertakings in the context of an investigation concerning an infringement of EU law relating to cartels, a person cannot, according to the well-established case-law of the European Court of Human Rights, rely on Article 8 of the ECHR in order to complain of a loss of reputation which is the foreseeable consequence of his own actions, such as the commission of a criminal offence. It follows that the right to protection of private life guaranteed by Article 8 of the ECHR cannot prevent the disclosure of information, provided to the Commission voluntarily in order to benefit from the leniency programme, which concerns an undertaking’s participation in an infringement of EU law relating to cartels, established in a Commission decision adopted on the basis of Article 23 of Regulation No 1/2003 and intended to be published in accordance with Article 30 of that regulation. (see paras 125, 126)

In adopting rules of conduct such as those contained in the 2002 and 2006 Leniency Notices and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without justification, under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations. However, those notices do not result in a prohibition on the Commission’s making public in any circumstances information contained in applications for leniency or statements made pursuant to the leniency programme. The various commitments contained in those notices relate only to the disclosure of documents submitted to it voluntarily by undertakings wishing to benefit from the leniency programme and to the disclosure of statements made by those undertakings in that connection. (see paras 134, 136, 138)

Although compliance with the principle of legitimate expectations is among the fundamental principles of EU law, traders cannot have a legitimate expectation that an existing situation which is capable of being altered within the limits of the discretionary power of the EU institutions will be maintained. In that regard, an undertaking which participated in a breach of EU competition rules cannot acquire any legitimate expectation in the maintenance of the Commission’s earlier practice consisting in not disclosing information which was communicated to it voluntarily by undertakings by way of applications for leniency and of which those undertakings requested confidential treatment. The Commission has a wide discretion to decide whether or not to publish such information. Article 30(2) of Regulation No 1/2003 limits the Commission’s obligation to publish to a reference to the names of the parties and the main content of the decisions referred to in Article 30(1), with a view to facilitating the Commission’s task of informing the public of the existence and the content of those decisions, having regard inter alia to the linguistic constraints connected with publication in the Official Journal. Conversely, that provision does not limit the Commission’s power to publish the full text or, at least, a very complete version of its decisions, if, resources permitting, it considers it appropriate to do so, without prejudice to the protection of professional secrecy and other confidential information. Whilst the Commission is thus subject to a general obligation to publish only non-confidential versions of its decisions, it is not necessary, to ensure compliance with that obligation, to interpret Article 30(2) of Regulation No 1/2003 as conferring a specific right on addressees of decisions adopted on the basis of Articles 7 to 10 and Articles 23 and 24 of that regulation allowing them to prevent publication by the Commission in the Official Journal and, where relevant, on its website of information which, even though not confidential, is not essential for understanding the operative part of those decisions. Thus, the aim of Article 30(2) of Regulation No 1/2003 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. (see paras 153, 155-157)