Order of the President of the General Court of 16 November 2012 — Evonik Degussa v Commission

(Case T-341/12 R)

‛Interim measures — Competition — Publication of a decision by which the Commission finds an infringement of provisions which prohibit cartels — Refusal of the request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Weighing up of interests — Urgency — Prima facie case’

1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Order of examination and method of verification — Discretion of the court dealing with the application for interim relief (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 14-17)

2. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Balancing of all the interests involved — Suspension of Commission decision concerning confidential treatment of information appearing in one of its decisions — Need to maintain the effectiveness of the decision of the General Court in the action in the main proceedings (Art. 278 TFEU) (see paras 19-24)

3. Fundamental rights — Respect for privacy — Concept of privacy — Application to undertakings — Scope (Charter of Fundamental Rights of the European Union, Art. 7) (see para. 27)

4. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Risk of serious and irreparable damage to fundamental rights (Arts 278 TFEU and 279 TFEU) (see para. 28)

5. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Examination prima facie of the pleas in law put forward in support of the main action — Action against a Commission decision refusing confidential treatment of information appearing in one of its decisions finding an infringement of Article 81 EC — Pleas concerning the confidentiality of information communicated on the basis of the Leniency Notice — Pleas not prima face unfounded (Arts 278 TFEU and 339 TFEU; Charter of Fundamental Rights of the European Union, Art. 7) (see paras 29, 30, 40, 41, 50)

Re:

APPLICATION for suspension of operation of Commission Decision C(2012) 3534 final of 24 May 2012 rejecting a request for confidential treatment made by the applicant (Case COMP/38.620 — Hydrogen peroxide and perborate) and an application for interim measures seeking to maintain the confidential treatment granted to certain information concerning the applicant on the publication of a more detailed version of Commission Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/C.38.620 — Hydrogen peroxide and perborate) (OJ 2006 L 353, p. 54).

Operative part

1. The operation of Commission Decision C(2012) 3534 final of 24 May 2012 rejecting a request for confidential treatment brought by Evonik Degussa GmbH, pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings is suspended.

2. The Commission is ordered to refrain from publishing on its website or any other place or to make available to third parties a version of its Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, Eka Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S. A., Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate), which is more complete, in relation to the applicant, than that published in September 2007 on the Commission’s Competition Directorate General website.

3. Costs are reserved.

Order of the President of the General Court of 16 November 2012 — Evonik Degussa v Commission

(Case T-341/12 R)

‛Interim measures — Competition — Publication of a decision by which the Commission finds an infringement of provisions which prohibit cartels — Refusal of the request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Weighing up of interests — Urgency — Prima facie case’

1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Order of examination and method of verification — Discretion of the court dealing with the application for interim relief (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 14-17)

2. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Balancing of all the interests involved — Suspension of Commission decision concerning confidential treatment of information appearing in one of its decisions — Need to maintain the effectiveness of the decision of the General Court in the action in the main proceedings (Art. 278 TFEU) (see paras 19-24)

3. Fundamental rights — Respect for privacy — Concept of privacy — Application to undertakings — Scope (Charter of Fundamental Rights of the European Union, Art. 7) (see para. 27)

4. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Risk of serious and irreparable damage to fundamental rights (Arts 278 TFEU and 279 TFEU) (see para. 28)

5. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Examination prima facie of the pleas in law put forward in support of the main action — Action against a Commission decision refusing confidential treatment of information appearing in one of its decisions finding an infringement of Article 81 EC — Pleas concerning the confidentiality of information communicated on the basis of the Leniency Notice — Pleas not prima face unfounded (Arts 278 TFEU and 339 TFEU; Charter of Fundamental Rights of the European Union, Art. 7) (see paras 29, 30, 40, 41, 50)

Re:

APPLICATION for suspension of operation of Commission Decision C(2012) 3534 final of 24 May 2012 rejecting a request for confidential treatment made by the applicant (Case COMP/38.620 — Hydrogen peroxide and perborate) and an application for interim measures seeking to maintain the confidential treatment granted to certain information concerning the applicant on the publication of a more detailed version of Commission Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/C.38.620 — Hydrogen peroxide and perborate) (OJ 2006 L 353, p. 54).

Operative part

1. The operation of Commission Decision C(2012) 3534 final of 24 May 2012 rejecting a request for confidential treatment brought by Evonik Degussa GmbH, pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings is suspended.

2. The Commission is ordered to refrain from publishing on its website or any other place or to make available to third parties a version of its Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, Eka Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S. A., Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate), which is more complete, in relation to the applicant, than that published in September 2007 on the Commission’s Competition Directorate General website.