Case T‑465/12

(publication by extracts)

AGC Glass Europe SA and Others

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 information the Commission intends to publish — Obligation to state reasons — Confidentiality — Obligation of professional secrecy — Leniency programme — Legitimate expectations — Equal treatment’

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

According to Article 8(2) of Decision 2011/695 on the function and terms of reference of the hearing officer in certain competition proceedings, the intervention of the Hearing Officer consists in applying the rules which protect undertakings by reason of the confidentiality of the information concerned. The intervention of the Hearing Officer serves therefore to add a phase of supplementary review by a body independent of the Commission. That organ is, in addition, obliged to defer the date when its decision takes effect, thereby giving the undertaking concerned the opportunity to bring a case before the court responsible for hearing applications for interim relief in order to have the decision suspended when the relevant conditions are met. Consequently, a distinction must be made between the application of legal rules relating to the confidentiality of the information as such, on the one hand, and the legal rules relied on with the objective of obtaining confidential treatment of the information irrespective of whether that information is inherently confidential, on the other. In that regard, even if publication of an item of information not covered by the obligation of professional secrecy might constitute an infringement of a rule falling within the second of the two abovementioned categories, that does not render the protection conferred by the rules relating to professional secrecy illusory. Such an infringement, if it were to be established, can give rise to adequate remedies, such as damages, if the conditions governing non-contractual liability of the Union are met. Accordingly, an analysis of the substance of the arguments relating to that category of rules is outside the objectives pursued by the terms of reference conferred on a hearing officer under Article 8 of Decision 2011/695. (see para. 59)

It is clear from the 2002 Leniency Notice and from the 2006 Leniency Notice that the sole aim of those notices is to establish the conditions under which an undertaking may obtain either immunity from a fine or a reduction in the amount of the fine. Those notices thus concern only the amount of fines and do not provide for any other advantage which an undertaking can claim in exchange for its cooperation. The rules provide that the fact that immunity or reduction in respect of fines is granted cannot protect an undertaking from the civil law consequences of its participation in an infringement of Article 101 TFEU. The aim of the 2002 and 2006 Leniency Notices is to give effect to a policy of differentiating between the addressees of a decision finding an infringement of Article 101 TFEU according to the degree to which each of them cooperates, solely with regard to amount of the fine. Therefore, the notices concerned are not intended to affect the consequences under civil law of participation by the undertakings which apply for leniency in an infringement. (see paras 66, 67, 73)