JUDGMENT OF THE COURT (Sixth Chamber)

26 July 2017 ( )

(Appeal — Competition — Articles 101 and 102 TFEU — Regulation (EC) No 1/2003 — Article 30 — Decision of the European Commission finding an unlawful cartel on the European market for automotive glass — Publication of a non-confidential version of that decision — Rejection of a request for confidential treatment of certain information — Terms of reference of the hearing officer — Decision 2011/695/EU — Article 8 — Confidentiality — Information from a leniency application — Partial rejection of the request for confidential treatment — Legitimate expectations — Equal treatment)

In Case C‑517/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 September 2015,

AGC Glass Europe SA, established in Brussels (Belgium),

AGC Automotive Europe SA, established in Fleurus (Belgium),

AGC France SAS, established in Boussois (France),

AGC Flat Glass Italia Srl, established in Cuneo (Italy),

AGC Glass UK Ltd, established in Northhampton (United Kingdom),

AGC Glass Germany GmbH, established in Wegberg (Germany),

represented by L. Garzaniti, F. Hoseinian and A. Burckett St Laurent, avocats,

appellants,

the other party to the proceedings being:

European Commission, represented by G. Meessen, P. Van Nuffel and F. van Schaik, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of E. Regan (Rapporteur), President of the Chamber, A. Arabadjiev and C.G. Fernlund, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeal, AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH ask the Court to set aside the judgment of the General Court of the European Union of 15 July 2015 in AGC Glass Europe and Others v Commission (T‑465/12, ‘the judgment under appeal’, EU:T:2015:505), by which that court dismissed their action for the annulment of Commission Decision C(2012) 5719 final of 6 August 2012 rejecting a request for confidential treatment submitted by the appellants (‘the decision at issue’), adopted 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 (OJ 2011 L 275, p. 29).

Legal context

Regulation (EC) No 1/2003

2 Article 28 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), entitled ‘Professional secrecy’, provides:

‘1. Without prejudice to Articles 12 and 15, information collected pursuant to Articles 17 to 22 shall be used only for the purpose for which it was acquired.

2. Without prejudice to the exchange and to the use of information foreseen in Articles 11, 12, 14, 15 and 27, the Commission and the competition authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States shall not disclose information acquired or exchanged by them pursuant to this Regulation and of the kind covered by the obligation of professional secrecy. This obligation also applies to all representatives and experts of Member States attending meetings of the Advisory Committee pursuant to Article 14.’

3 Article 30 of that regulation, entitled ‘Publication of decisions’, provides:

‘1. The Commission shall publish the decisions, which it takes pursuant to Articles 7 to 10, 23 and 24.

2. The publication shall state the names of the parties and the main content of the decision, including any penalties imposed. The Commission is to have regard to the legitimate interest of undertakings in the protection of their business secrets.’

Decision 2011/695

4 Recital 8 of Decision 2011/695 states:

‘The hearing officer should operate as an independent arbiter who seeks to resolve issues affecting the effective exercise of the procedural rights of the parties concerned, where such issues could not be resolved through prior contacts with the Commission services responsible for the conduct of competition proceedings, which must respect these procedural rights.’

5 Recital 9 of that decision states that ‘the terms of reference of the hearing officer in competition proceedings should be framed in such a way as to safeguard the effective exercise of procedural rights throughout proceedings before the Commission pursuant to Articles 101 and 102 [TFEU] ..., in particular the right to be heard.’

6 In accordance with Article 1(1) of Decision 2011/695, the powers and functions of hearing officers for competition proceedings are laid down in that decision.

7 Article 1(2) of that decision defines the role of hearing officer as safeguarding ‘the effective exercise of procedural rights throughout competition proceedings before the Commission for the implementation of Articles 101 and 102 [TFEU]’.

8 Article 8 of Decision 2011/695, which is in Chapter 4 of that decision entitled ‘Access to file, confidentiality and business secrets’, provides:

‘1. Where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate-General for Competition. A time-limit shall be fixed within which the undertaking or person concerned may submit any written comments.

2. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. If the hearing officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification.

3. Paragraphs 1 and 2 shall apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union.

...’

Regulation (EC) No 1049/2001

9 Article 4(2), (3) and (7) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) provides:

‘2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

– commercial interests of a natural or legal person, including intellectual property,

– court proceedings and legal advice,

– the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

...

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’

The 2002 Commission notice on immunity from fines and reduction of fines in cartel cases

10 Point 4 of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the 2002 Leniency Notice’) provides:

‘The Commission considered that it is in the [European Union’s] interest to grant favourable treatment to undertakings which cooperate with it. The interests of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Authority to detect and prohibit such practices.’

11 Point 6 of that notice states:

… The Commission considers that the collaboration of an undertaking in the detection of the existence of a cartel has an intrinsic value. A decisive contribution to the opening of an investigation or to the finding of an infringement may justify the granting of immunity from any fine to the undertaking in question, on condition that certain additional requirements are fulfilled.’

12 According to point 21 of the 2002 Leniency Notice:

‘In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.’

13 Point 29 of that notice is worded as follows:

The Commission is aware that this notice will create legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission.’

14 Points 31 to 33 of the 2002 notice state:

‘31. In line with the Commission’s practice, the fact that an undertaking cooperated with the Commission during its administrative procedure will be indicated in any decision, so as to explain the reason for the immunity or reduction of the fine. 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].

32. The Commission considers that normally disclosure, at any time, of documents received in the context of this notice would undermine the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation [No 1049/2001].

33. Any written statement made vis-à-vis the Commission in relation to this notice, forms part of the Commission’s file. It may not be disclosed or used for any other purpose than the enforcement of Article [101 TFEU].’

The 2006 Commission notice on immunity from fines and reduction of fines in cartel cases

15 Point 40 of Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the 2006 Leniency Notice’) provides:

‘The Commission considers that normally public disclosure of documents and written or recorded statements received in the context of this notice would undermine certain public or private interests, for example the protection of the purpose of inspections and investigations, within the meaning of Article 4 of Regulation [No 1049/2001], even after the decision has been taken.’

Background to the dispute and the decision at issue

16 The background to the dispute and the essential elements of the decision at issue, as set out in paragraphs 1 to 15 of the judgment under appeal, may be summarised as follows.

17 On 12 November 2008, the Commission of the European Communities adopted Decision C(2008) 6815 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement, in which it found against a number of carglass manufacturers, including the appellants (Case COMP/39.125 — Car glass) (‘the carglass decision’).

18 In that decision, the Commission found, inter alia, that the addressees thereof had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating, over various periods between March 1998 and March 2003, in a set of anticompetitive agreements and concerted practices in the automotive glass sector in the European Economic Area (EEA).

19 By letter of 25 March 2009, the Commission’s Directorate-General (DG) for Competition informed the appellants, inter alia, of its intention to publish, in accordance with Article 30 of Regulation No 1/2003, a non-confidential version of the carglass decision on its website in English, French and Dutch, the authentic languages of the case. DG Competition also asked the appellants to identify any information that was confidential or constituted business secrets and to give reasons for their assessment in that regard.

20 Following an exchange of correspondence with the appellants, DG Competition decided not to act on the appellants’ requests for redaction of information contained in 246 recitals of the carglass decision and 122 footnotes thereto. DG Competition then adopted, in December 2011, the non-confidential version of the carglass decision to be published on the Commission website.

21 According to DG Competition, the information that the appellants sought to have redacted can be divided into three categories. The first category contains customer names, descriptions of the products concerned and any information that could enable an individual customer to be identified. The second category contains the number of parts supplied; the allocation of quotas to each car manufacturer; price agreements, pricing calculations and price changes, as well as the numbers or percentages involved in the allocation of customers between the cartel members. Lastly, the third category contains purely administrative information consisting of references to documents in the file.

22 As permitted by Decision 2011/695, the appellants referred the matter to the hearing officer, requesting that the information in the first two categories be excluded from the carglass decision and objecting to the publication of a part of a sentence in recital 726 of that decision. By letter of 21 May 2012, the appellants withdrew their request with respect to the information in the second category mentioned in the previous paragraph.

23 By the decision at issue, the hearing officer, on behalf of the Commission, rejected the requests for confidential treatment lodged by the appellants and, consequently, authorised the publication of the information to which those requests related (‘the information at issue’).

24 The hearing officer, first of all, emphasised that the 2002 Leniency Notice did not give rise to a legitimate expectation on the appellants’ part preventing the Commission from publishing information not covered by professional secrecy. Furthermore, the appellants’ interest in the non-disclosure of details of their conduct not covered by professional secrecy did not warrant any particular protection. The hearing officer also stated that he was not competent to decide whether it was appropriate to publish non-confidential information or to take a position as regards any adverse effects that might have been brought about by the Commission’s general policy in that regard.

25 Next, the hearing officer noted that the Commission is not bound by its previous practice as regards the extent of the publication of a decision such as the carglass decision. Furthermore, he noted that the publication envisaged by the Commission’s DG Competition in its letter of 25 March 2009 did not mention the source of the leniency statements or other documents submitted in that connection, but pointed out that he was not competent to rule on the extent of the intended publication in the light of the principle of equal treatment.

26 The hearing officer also considered that the information in the first category referred to in paragraph 23 of the present judgment, consisting in customer names and descriptions of the products concerned was, by its very nature, ‘historic’, that, given the specific characteristics of the carglass market, it was known outside the appellants and that it referred to the very essence of the infringement, and, moreover, the interests of the persons harmed required its disclosure. Furthermore, to the extent that the appellants had raised specific arguments seeking to establish that the information at issue was confidential notwithstanding its general characteristics as described above, the hearing officer concluded, following an analysis which took account of three cumulative conditions, that the information in the first category was not covered by the obligation of professional secrecy.

27 Lastly, the hearing officer granted the appellants’ request in part, on the ground that Article 5 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 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 required that the information in recitals 115, 128, 132, 252 and 562, and in footnote 282, of the carglass decision should be given confidential treatment. A part of the sentence in recital 726 of the carglass decision was also considered to be confidential. The remainder of the request was dismissed.

The procedure before the General Court and the judgment under appeal

28 By application lodged at the Court Registry on 19 October 2012, the appellants brought an action for annulment of the decision in issue.

29 In support of their action, the appellants put forward six pleas in law, alleging (i) infringement of Article 8 of Decision 2011/695; (ii) breach of the principle of the protection of legitimate expectations; (iii) breach of the principle of equal treatment and of the obligation to state reasons; (iv) breach of the principle of good administration; (v) infringement of the provisions on public access to documents of the EU institutions, and (vi) infringement of the principle of the protection of professional secrecy.

30 By the judgment under appeal, the General Court dismissed the action as unfounded.

Forms of order sought by the parties to the appeal

31 By their appeal, the appellants claim that the Court of Justice should:

– set aside the judgment under appeal;

– annul the decision at issue or, in the alternative, refer the case back to the General Court; and

– order the Commission to pay the costs.

32 The Commission claims that the Court should dismiss the appeal in its entirety and order the appellants to pay the costs.

The appeal

33 In support of their appeal, the appellants rely on three grounds of appeal, alleging (i) infringement of Article 8(2) and (3) of Decision 2011/695, (ii) breach of the principles of the protection of legitimate expectations and equal treatment and (iii) breach of the obligation to state reasons.

First ground of appeal, alleging infringement of Article 8(2) and (3) of Regulation No 2011/695

Arguments of the parties

34 By their first ground of appeal, the appellants complain that the General Court erred in law in paragraph 59 of the judgment under appeal, in holding that the hearing officer was not competent to examine their requests for confidential treatment based on the principle of the protection of legitimate expectations and equal treatment.

35 Contrary to the General Court’s finding in paragraph 59 of the judgment under appeal, the General Court would not be able to review the lawfulness of administrative decisions adopted by the EU’s executive bodies or order those bodies to repair breaches of those principles if the Commission was not required to respect them.

36 Moreover, even if it were well founded, the General Court’s reasoning would mean that the undertaking’s right to an effective remedy would be limited, since it is the hearing officer, and not DG Competition, who adopts the ultimate decision as regards the publication of information to which a request for confidential treatment relates. If the role of the hearing officer had not existed within the Commission, the position adopted in that respect by DG Competition would have been the final and — consequently — challengeable act, with the result that the appellants would have contested it before the General Court. There are no decisions or regulations from which it can be inferred that the Commission and, accordingly, DG Competition, does not need to take the principles of legitimate expectations and equal treatment into account when adopting acts affecting the legal position of an undertaking. If it must be considered that the ultimate decision as regards such publication rests with the hearing officer, that inappropriately absolves the Commission from respecting fundamental obligations incumbent upon it.

37 Lastly, the General Court distorted the facts, in paragraph 60 of the judgment under appeal, in that it found that the hearing officer ‘made an assessment of the arguments related to breach of the principles of protection of legitimate expectations and equal treatment’, while emphasising, at least three times, that the hearing officer’s competence is limited to the review of the rules on professional secrecy.

38 The Commission contends that the first ground of appeal should be rejected.

Findings of the Court

39 The powers and functions of the hearing officer for competition proceedings are, in accordance with Article 1(1) of Decision 2011/695, laid down in that decision (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 39).

40 Article 1(2) of Decision 2011/695, as clarified by recital 9 of that decision, provides that the terms of reference of the hearing officer must be framed in such a way as to safeguard the effective exercise of procedural rights throughout proceedings before the Commission pursuant to Articles 101 TFEU and 102 TFEU, in particular the right to be heard (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 40).

41 In that regard, it is apparent from Article 8(1) of Decision 2011/695 that, where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter must be informed in writing of that intention and a time limit must be fixed within which the undertaking or person concerned may submit any written comments (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 41).

42 In accordance with Article 8(2) of that decision, the interested person may then, in the case of information which may, in its view, constitute a business secret or other confidential information, object to its disclosure, referring the matter to the hearing officer. Where the hearing officer finds that the contested information may be disclosed, either because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure, he must take a reasoned decision specifying the date after which the information will be disclosed, which may not be less than one week from the date of notification (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 42).

43 Lastly, Article 8(3) of Decision 2011/695 provides that those provisions are to apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 43).

44 The aim of Article 8 of that decision is therefore to provide, on a procedural level, for the protection required by EU law of information which has come to the Commission’s knowledge in the context of proceedings applying the competition rules, now provided for in Article 28(2) of Regulation No 1/2003 (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 44).

45 In particular, the aim of Article 8(2) of Decision 2011/695 is to specify the reasons allowing the hearing officer to find that the information for which the interested person seeks confidential treatment may be disclosed. It is apparent from that provision that the hearing officer may find that the information may be disclosed when it does not, in fact, constitute a business secret or other confidential information or when there is an overriding interest in its disclosure (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 45).

46 However, although that provision sets out the reasons which allow the hearing officer to find that a piece of information may be disclosed, it does not limit, by contrast, the grounds arising from rules or principles of EU law on which the interested person may rely in order to object to the proposed publication (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 46).

47 In the present case, the appellants argued before the General Court, in essence, in the first place, that, by refusing, in recitals 14, 17 and 19 of the decision at issue, to examine whether the publication envisaged by the Commission’s DG Competition in its letter of 25 March 2009 was in accordance with the principles of the protection of legitimate expectations and equal treatment, the hearing officer failed to exercise the powers conferred on him by Article 8 of Decision 2011/695 and, in the second place, that, in any event, since the hearing officer expressly denied that he had such powers, the decision at issue is vitiated by a failure to state sufficient reasons with regard to those principles.

48 In that regard, the General Court, first of all, found, in paragraph 56 of the judgment under appeal, that the decision at issue was not vitiated by illegality as regards its findings relating to the confidentiality of the information at issue.

49 Next, the General Court held, in paragraph 57 of the judgment under appeal, that, in accordance with recitals 14, 17 and 19 of the decision at issue, the hearing officer made a distinction between the appellants’ arguments based on the confidentiality of the information at issue, on the one hand, and their arguments based on the breach of principles which are not linked to the obligation of professional secrecy, such as the principle of equal treatment and the principle of the protection of legitimate expectations, on the other.

50 The General Court held, in paragraph 59 of the judgment under appeal, that those principles fall outside the framework of the mission entrusted to the hearing officer under Article 8 of Decision 2011/695.

51 However, as is apparent from paragraph 44 above, the aim of Article 8 of Decision 2011/695 is to provide, on a procedural level, for the protection of information required by EU law which has come to the Commission’s knowledge in the context of proceedings applying the competition rules. That protection must be understood as relating to any ground which could justify protecting the confidentiality of the information at issue (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 51).

52 That interpretation is borne out, first, by the first sentence of Article 8(2) of Decision 2011/695, which provides, without further restriction, that where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 52).

53 Secondly, it would run counter to the aim of the hearing officer’s terms of reference, as defined in Article 1(2) of Decision 2011/695 and recital 9 of that decision, of safeguarding the effective exercise of procedural rights, if the hearing officer could rule only on some of the grounds which may preclude the disclosure of a given piece of information (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 53).

54 The scope of Article 8(2) of Decision 2011/695 would be considerably reduced if that provision had to be interpreted as allowing, as the General Court held in paragraph 59 of the judgment under appeal, the hearing officer to take into account only those rules intended to afford specific protection against disclosure of information to the public, to the exclusion of rules relied on with the objective of obtaining confidential treatment of the information irrespective of whether that information is inherently confidential (see, by analogy, judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 54).

55 It follows that the grounds which may restrict the disclosure of information, such as that communicated by the appellants to the Commission with a view to obtaining leniency from it, are not restricted to those arising solely from the rules intended to afford specific protection against disclosure to the public of that information and that the hearing officer must, therefore, examine any objection based on a ground, arising from rules or principles of EU law, relied on by the interested person in order to claim protection of the confidentiality of the contested information (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 55).

56 Consequently, in holding, in paragraph 59 of the judgment under appeal, that the hearing officer had, in the present case, been correct to decline competence to answer the appellant’s objections to the publication proposed by the Commission’s DG Competition in its letter of 25 March 2009, raised by the appellants on the basis of the observance of the principles of the protection of legitimate expectations and equal treatment, the General Court erred in law.

57 However, that error of law is not of such a kind as to entail annulment of the judgment under appeal.

58 It must be noted that, in paragraph 60 of the judgment under appeal, the General Court found that, ‘in any event’, the hearing officer examined, in the decision at issue, those arguments alleging a breach of the principles of protection of legitimate expectations and equal treatment.

59 That reason alone is sufficient to justify the General Court’s dismissal of the action brought against the decision at issue, in so far as it alleged that the hearing officer infringed Article 8 of Decision 2011/695.

60 The appellants cannot validly maintain, in that respect, that the General Court distorted the decision at issue in paragraph 60 of the judgment under appeal.

61 It must be borne in mind that, according to the Court’s case-law, such distortion must be obvious from the documents in the case, without it being necessary to undertake a fresh assessment of the facts and evidence (see, inter alia, judgment of 26 January 2017, Zucchetti Rubinetteria v Commission, C‑618/13 P, EU:C:2017:48, paragraph 68).

62 In the present case, it is apparent that, in recitals 12 and 13 of the decision at issue, the hearing officer expressly responded to the line of argument put forward by the appellants, according to which the proposed publication would seriously harm their interests by frustrating their legitimate expectations. In addition, in recitals 16 and 18 of that decision, the hearing officer also responded to the appellants’ allegations that the principle of equal treatment obliged the Commission not to depart from the approach adopted as regards the publication of previous decisions in relation to cartels and obliged the Commission to give more favourable treatment to the appellants since they were the first to seek leniency.

63 While it is true that those recitals were presented by the hearing offer in the form of general observations made ‘as a preliminary point’ and that the hearing officer stated several times that he was not competent to deal with the appellants’ arguments alleging breach of the principles of protection of legitimate expectations and equal treatment, it is nevertheless the case that, in view of those recitals, it cannot be considered that it is obvious from the decision at issue that the hearing officer did not take account of those arguments.

64 In those circumstances, the line of argument put forward by the appellants in support of the present ground of appeal, according to which the General Court’s conclusions in paragraph 59 of the judgment under appeal are vitiated by an error of law since they effectively restrict the right of an undertaking to an effective remedy, is ineffective.

65 Consequently, the first ground of appeal must be rejected in its entirety as ineffective.

Second ground of appeal, alleging breach of the principles of the protection of legitimate expectations and equal treatment

Arguments of the parties

66 By their second ground of appeal, the appellants submit that the General Court erred in law, in paragraph 70 of the judgment under appeal, in that it wrongly rejected their line of argument that the decision at issue infringed the principles of protection of legitimate expectations and equal treatment. They submit, in that respect, that the distinction that the General Court makes, in that paragraph of the judgment under appeal, between the documents received in the context of the leniency programme, on the one hand, and the content of those documents, on the other, is artificial and inappropriate in the present case.

67 According to the appellants, it is undisputed that the reason for which the Commission undertakes not to disclose documents received in the context of the leniency programme to the wider public is rooted in the fact that considerable damages indirectly follow from such a disclosure, and that those damages can reach very significant amounts, often surpassing the fine reduction granted pursuant to a leniency application. Consequently, in order to secure the continued success of its leniency programme, and the continued incentive for undertakings to voluntarily cooperate, the Commission has explicitly stated that it will redact from public versions of its decisions information which, if published, could jeopardise Commission investigations, including the leniency program. That includes quotes from corporate statements submitted under the leniency notice and information which could, directly or indirectly, allow for the identification of an applicant as the source of specific information submitted in the context of the leniency program.

68 It therefore follows expressly from the commitments given by the Commission in its notices, as well as from the General Court’s case-law, that, on the basis of the principle of legitimate expectations, the content of the documents received in the context of the leniency programme cannot be disclosed if that disclosure would reveal the source of the information and thereby frustrate the incentives for companies to submit such documents.

69 Consequently, the General Court erred in law, in paragraph 70 of the judgment under appeal, in concluding that it is neither the intention nor the effect of the 2006 Leniency Notice that the Commission should be prevented from publishing, in its decision bringing the administrative procedure to an end, the information relating to the description of the infringement which was submitted to it as part of the leniency programme and that those rules give rise to no legitimate expectation in that regard.

70 The General Court also disregarded the scope of the principle of equal treatment, in that its decision effectively treats the appellants in the same manner as undertakings which did not cooperate with the Commission in the investigation that led to the carglass decision. Likewise, since the information underpinning the decision at issue originates predominantly from the appellants, they are worse off in terms of exposure to damages claims than those undertakings that did not cooperate with the Commission.

71 Consequently, the 2002 and 2006 Leniency Notices explicitly recognise that the position of leniency applicants should not be impaired in civil proceedings as compared to companies which did not cooperate with the Commission. This requires, when there is only one leniency applicant, as in the present case, that documents received in the context of the leniency programme as well as the content of such documents should be withheld from publication.

72 The Commission contends that the Court should reject that ground of appeal.

Findings of the Court

73 As regards, in the first place, the appellants’ line of argument alleging that the General Court disregarded the principle of the protection of legitimate expectations, it is apparent from paragraphs 3 to 7 of the 2002 Leniency Notice, on which the appellants based their leniency application, that the sole aim of that notice is to lay down the conditions under which an undertaking may obtain either immunity from fine or a reduction of fine (see, to that effect, judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 89).

74 Consequently, point 4 of that notice states that it is in the European Union’s interest to grant favourable treatment to undertakings which cooperate with it. In addition, point 6 of that notice specifies that a decisive contribution to the opening of an investigation may justify the granting of immunity from fines to the undertaking applying for immunity (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 90).

75 In addition, the rules laid down in points 8 to 27 of the 2002 Leniency Notice relate exclusively to the imposition of fines and the setting of their amount (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 91).

76 That interpretation is expressly confirmed by the title of that notice and also by point 31 which states 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 (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 92).

77 As regards the Commission’s treatment of the information submitted by an undertaking participating in the leniency programme, it is true that, in point 29 of that notice, the Commission accepts that it is aware that that notice will create legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to it (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 93).

78 In that respect, the 2002 Leniency Notice provides, first, in point 32, that normally disclosure, at any time, of documents received in the context of that notice would undermine the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation No 1049/2001 and, secondly, in point 33, that any written statement made vis-à-vis the Commission in relation to that notice, forms part of its file and may not be disclosed or used for any other purpose than the enforcement of Article 101 TFEU (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 94).

79 It is therefore with the aim of protecting statements made with a view to obtaining leniency that the Commission, in adopting the 2002 Leniency Notice, imposed on itself rules as regards the written statements received by it, in accordance with that notice, the publication of which is normally viewed by the Commission as undermining the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation No 1049/2001, as stated in points 32 and 33 of that notice (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 95).

80 However, those rules have neither the object nor the effect of prohibiting the Commission from publishing the information relating to the elements constituting the infringement of Article 101 TFEU which was submitted to it in the context of the leniency programme and which does not enjoy protection against publication on another ground (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 96).

81 Consequently, the only protection available to an undertaking which has cooperated with the Commission in the context of a proceeding under Article 101 TFEU is the protection concerning (i) the immunity from or reduction in the fine in return for providing the Commission with evidence of the suspected infringement which represents significant added value with respect to the information already in its possession and (ii) the non-disclosure by the Commission of the documents and written statements received by it in accordance with the 2002 Leniency Notice (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 97).

82 Contrary to the appellants’ claims, publication, such as that envisaged by the Commission’s DG Competition in its letter of 25 March 2009, carried out under Article 30 of Regulation No 1/2003, in compliance with the protection of professional secrecy, does not undermine the protection which the appellants may claim under the 2002 Leniency Notice, since that protection relates only to the determination of the fine and the treatment of the documents and statements specifically targeted by that notice.

83 It follows from this that, in paragraph 70 of the judgment under appeal, the General Court did not err in law in its analysis of the treatment to be given to the information communicated by the appellants to the Commission in the context of the leniency programme.

84 As regards, in the second place, the appellants’ line of argument alleging a breach of the principle of equal treatment, it must be borne in mind that that principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 16 December 2008, Arcelor Atlantique and Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23).

85 In the present case, the appellants argue that the judgment under appeal did not acknowledge that they were in a different situation than the undertakings which had not cooperated with the Commission during the investigation and submit that they should have therefore received different treatment.

86 However, it must be noted that, as regards the conditions of publication of the infringement decision, carried out under Article 30 of Regulation No 1/2003 in compliance with the protection of professional secrecy, undertakings which, like the appellants, enjoyed a reduction in the fine under the leniency programme are in a situation comparable to that of the undertakings which did not cooperate with the Commission during the investigation.

87 That cooperation forms part of the matters taken into account in determining the amount of the fine. Furthermore, as noted in paragraph 76 of the present judgment, the fact that an undertaking is granted immunity or reduction in respect of fines cannot protect it from the civil law consequences of its participation in an infringement of Article 101 TFEU.

88 Accordingly, the General Court did not err in law when it rejected, in paragraph 73 of the judgment under appeal, the appellants’ arguments concerning an infringement of the principle of equal treatment.

89 In view of the foregoing, the second ground of appeal must be rejected as unfounded.

Third ground of appeal, alleging insufficient reasoning

90 By the third ground of appeal, the appellants submit that the judgment under appeal is vitiated by insufficient reasoning in two respects. First, the General Court did not explain why it departed from its own case-law, inter alia the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), as regards the powers of the hearing officer. Secondly, the General Court did not refer to the judgment of 28 January 2015, Evonik Degussa v Commission (T‑341/12, EU:T:2015:51), invoked by the appellants at the hearing, even though, since they were the only leniency applicant, that entailed that the Commission could not publish information that would allow the direct or indirect identification of the evidence that they submitted in the context of the leniency applications.

91 It must be noted, however, that it is apparent from the examination of the first two grounds of appeal that the judgment under appeal, in particular paragraphs 60, 70 and 73 thereof, shows to the requisite legal standard the reasons why the General Court considered that the Commission was entitled to publish the information at issue.

92 It follows that the third ground of appeal must be rejected as unfounded.

93 Consequently, the appeal must be dismissed in its entirety.

Costs

94 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

95 Under Article 138(1) of those Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

96 Since the appellants have been unsuccessful and the Commission has applied for costs, they must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby:

1. Dismisses the appeal;

2. Orders AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH to pay the costs.





Regan Arabadjiev Fernlund

Delivered in open court in Luxembourg on 26 July 2017.









A. Calot Escobar E. Regan