Case T‑462/12

Pilkington Group Ltd

v

European Commission

‛Competition — Administrative procedure — European automotive glass market — Publication of a decision finding an infringement of Article 81 EC — Rejection of a request for confidential treatment of data allegedly covered by business secrecy — Obligation to state reasons — Confidentiality — Obligation of professional secrecy — Legitimate expectations’

Summary — Judgment of the General Court (Third Chamber), 15 July 2015

Competition — Union rules — Infringements — Decision of the Commission finding an infringement or imposing a fine — Obligation to publish — Scope — Right to publish a fuller version than the minimum required — Change of approach by the Commission concerning the level of detail of the information published — No infringement of the principles of equal treatment and legitimate expectations

Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Right to publish information already communicated to competitors in exchange for an unlawful agreement — Account taken of the interest of persons harmed by the infringement by facilitating actions for reparation of the damage

Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria — Account taken of the confidentiality of certain information protected by an exception to the right of access to documents — Limits

Under Article 8(2) of Decision 2011/695 on the function and terms of reference of the hearing officer in certain competition proceedings, the Hearing Officer is entitled to find that information may be disclosed either because it does not constitute a business secret or other confidential information, or because he considers that there is an overriding interest in its disclosure. Consequently, reasons must be stated for a conclusion that the information at issue may be disclosed, with reference to the considerations which led the Hearing Officer to take the view either that the information did not constitute a business secret or other confidential information, or that, even though that was so, there was an overriding interest in its disclosure. In that context, the fact that one or more reasons underpinning the refusal to recognise confidentiality are relied on in relation to a number of items of information which, in the opinion of the Hearing Officer, have features in common, has no bearing on whether reasons are fully stated, provided that the contested decision makes it possible to understand the basis of the Hearing Officer’s conclusions. If the reasons concerned are not valid with respect to one or more items of information, the matter which is then at issue is whether the reasons stated are accurate and not whether those reasons are sufficient to satisfy essential procedural requirements. Accordingly, the fact that the Hearing Officer has made no separate assessment with respect to every single recital of the decision against which the request is directed does not imply that the contested decision is vitiated by a failure to state sufficient reasons, if the applicant has been put in a position effectively to challenge the legality of the Hearing Officer’s analysis and if the EU judicature has the necessary information to make its judgment in that regard. (see paras 22, 23, 27)

It is apparent from Article 8(1) and (2) of Decision 2011/695 that the powers of the Hearing Officer, when hearing the objections of an undertaking to disclosure of information concerning breach of the competition rules, are limited by the request which is referred to him and that he does not have the power to call into question decisions taken by the Commission where those involve acceptance of a request for confidentiality. (see paras 31, 34)

See the text of the decision. (see paras 42, 43)

See the text of the decision. (see paras 44, 45)

In the context of the combined provisions of Article 4 of Regulation No 1049/2001, Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU], to take into account Article 4 of Regulation No 1049/2001 in such a way as to prohibit the Commission from publishing any information on the ground that the Commission is entitled to refuse, pursuant to that Article 4, access to documents in which that information is to be found by relying on a general presumption would render Article 30 of Regulation No 1/2003 meaningless. First, the effect of such an approach would be to deprive the Commission of the possibility of publishing even the main content of its decision, to the extent that that content must necessarily be apparent from the information in the investigation file. Second, the result of that approach would in practice be a reversal of the burden of proof which, as regards confidential treatment, lies on the undertaking which requests such treatment, since it would be sufficient for that undertaking to invoke the general presumption, which the institutions can invoke on the conditions described above, and in fact to oblige the Commission to demonstrate that the information at issue can be included in the published version of its decision. Consequently, the fact that the Commission, when dealing with a request for access to a set of documents described in general terms and to be found in the investigation file, may rely on a general presumption relating to the protection of one of the interests set out in Article 4 of Regulation No 1049/2001 can be in no way prejudicial to the scope of the publication which the Commission may undertake under Article 30 of Regulation No 1/2003. (see paras 46, 47, 89)

See the text of the decision. (see para. 58)

Where an undertaking, which has been investigated for breach of the competition rules, has chosen to waive the secrecy of certain information by communicating it directly to its competitors in exchange for an unlawful agreement as to their future conduct, with the objective of eliminating the uncertainty inherent in a competitive environment attributable precisely to the secrecy of that kind of information, particularly from competitors, that undertaking cannot justifiably claim that the effect of publication of the information concerned in the decision finding that infringement will be improperly to enlarge the circle of persons privy to that information, since it is that undertaking itself which directly shared that information with its main competitors. Against that background, the risk that the information concerned may fall into the hands of that undertaking’s competitors ceases to be relevant because of that undertaking’s own conduct. Moreover, since the general public as such does not have the means to cause harm to the applicant’s commercial interests, the fact that the information concerned will be publicly available is legally of no consequence. Consequently, the Commission may include such information in the public version of its decision even if it has not been established that such an inclusion is strictly necessary for the purposes of ensuring that the persons harmed by the infringement have judicial protection. (see paras 59, 60, 66, 71, 81-84, 88)