Commission communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions
Date: 2003-12-01
Institutions: European Commission
Subjects: State aid, confidentiality, professional secret

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Official Journal of the European Union

9.12.2003

Commission communication C(2003) 4582 of 1 December 2003 on professional secrecy in State
aid decisions

(2003/C 297/03)

1. INTRODUCTION

(1) This Communication sets out how the Commission
intends to deal with requests by Member States, as
to consider parts of
addressees of State aid decisions,
such decisions
the obligation of
by
professional secrecy and thus not to be disclosed when
the decision is published.

covered

as

(2) This involves two aspects, namely:

(a) the identification of the information which might be
covered by the obligation of professional secrecy; and

(b) the procedure to be followed for dealing with such

requests.

2. LEGAL FRAMEWORK

of

(3) Article 287 of the Treaty states that: ‘The members of the
institutions
of
the Community,
committees, and the officials and other servants of the
Community shall be required, even after their duties
the kind
have ceased, not
covered by the obligation of professional secrecy,
in
particular information about undertakings, their business
relations or their cost components’.

to disclose information of

the members

(4) This is also reflected in Articles 24 and 25 of Council
Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of
the EC Treaty (1).

(5) Article 253 of the Treaty states:

‘Regulations, directives
and decisions adopted jointly by the European Parliament
and the Council, and such acts adopted by the Council or
the Commission, shall state the reasons on which they are
based and shall refer to any proposals or opinions which
were required to be obtained pursuant to this Treaty’.

(6) Article 6(1),

the

first

sentence of Regulation (EC) No
659/1999 further stipulates with regard to decisions to
initiate the formal investigation procedures: ‘The decision
to initiate
shall
formal
summarise the relevant
fact and law, shall
include a preliminary assessment of the Commission as
to the aid character of the proposed measure and shall set
out the doubts as to its compatibility with the common
market [. . .]’.

investigation procedure
issues of

(1) OJ L 83, 27.3.1999, p. 1.

3. IDENTIFICATION OF INFORMATION WHICH CAN BE
COVERED BY PROFESSIONAL SECRECY

(7) The Court of Justice has established that although Article
287 of the Treaty primarily refers to information gathered
from undertakings, the expression ‘in particular’ shows
that the principle in question is a general one which
applies also to other confidential information (2).

(8) It follows that professional secrecy covers both business

secrets and other confidential information.

(9) There is no reason why the notions of business secret and
information should be interpreted
other confidential
differently from the meaning given to these terms in
the context of antitrust and merger procedures. The fact
that in antitrust and merger procedures the addressees of
the Commission decision are undertakings, while in State
aid procedures the addressees are Member States, does not
constitute an obstacle to a uniform approach as to the
identification of what can constitute business secrets or
other confidential information.

3.1. Business secrets

for other companies. Typical

(10) Business secrets can only concern information relating to
a business which has actual or potential economic value,
the disclosure or use of which could result in economic
benefits
examples are
methods of assessing manufacturing and distribution
costs, production secrets
to say, a secret,
commercially valuable plan, formula, process or device
that is used for the making, preparing, compounding, or
processing of trade commodities and that can be said to
be the end product of either innovation or substantial
quantities
effort)
produced and sold, market
and
distributor lists, marketing plans, cost price structure,
sales policy, and information on the internal organisation
of the undertaking.

processes,

customer

sources,

shares,

supply

(that

and

is

(11) It would appear that in principle business secrets can only
relate to the beneficiary of the aid (or other third party)
and can only concern information submitted by the
Member State (or third party). Hence, statements from
the Commission itself
(for example, expressing doubts
feasibility of a restructuring plan) cannot be
about
covered by the obligation of professional secrecy.

(2) Case 145/83 Adams v Commission [1985] ECR 3539, paragraph
34, and Case T-353/94 Postbank v Commission [1996] ECR II-921,
paragraph 86.

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(12) The simple fact that disclosure of information might cause
harm to the company is not of itself sufficient grounds to
consider that such information should be considered as
business secret. For example, a Commission decision to
initiate the formal investigation procedure in the case of a
restructuring aid may cast doubt on certain aspects of the
light of
restructuring plan in the
information the
Such a decision could
Commission has
received.
that company.
(further) affect
lead to the
However,
conclusion that the information on which that decision
was based must be considered as business secrets.

that would not necessarily

the credit-position of

(13) In general,

the Commission will apply the following
non-exhaustive list of criteria to determine whether
information can be deemed to constitute business secrets:

(a) the extent to which the information is known outside

the company;

(b) the extent to which measures have been taken to
for
protect
example,
or
non-disclosure agreements imposed on employees or
agents, etc;

the information within the company,
clauses

compete

through

non

(c) the value of the information for the company and its

competitors;

(d) the effort or investment which the undertaking had to

undertake to acquire the information;

(e) the effort which others would need to undertake to

acquire or copy the information;

(f)

the degree of protection offered to such information
under the legislation of the Member State concerned.

(14) In principle, the Commission considers that the following
information would not normally be covered by the obli-
gation of professional secrecy:

(a)

or

services

information

including
information which is publicly available,
through
information available only upon payment
specialised
information
which is common knowledge among specialists in
the field (for example common knowledge among
engineers or medical doctors). Likewise, turnover is
not normally considered as a business secret, as it is
a figure published in the annual accounts or otherwise
known to the market. Reasons must be given for
turnover
requests
figures which are not in the public domain and the
requests must be evaluated on a case-by-case basis.
The fact
information is not publicly available
does not necessarily mean that the information can
be regarded as a business secret;

confidentiality

concerning

that

for

(b) historical

information,

in particular information at

least five years old;

(c) statistical or aggregate information;

(d) names of aid recipients, sector of activity, purpose and

amount of the aid, etc.

(15) Detailed reasons must be given for any request

to

derogate from these principles in exceptional cases.

3.2. Other confidential information

(16) In antitrust and merger cases, confidential

information
includes certain types of information communicated to
the Commission on condition that confidentiality is
observed (for example a market study commissioned by
an undertaking which is party to the procedure and
It seems that a similar
its property).
forming part of
approach could be retained for State aid decisions.

(17) In the field of State aid, there may, however, be some
information, which would not
forms of confidential
necessarily be present in antitrust and merger procedures,
referring specifically to secrets of the State or other confi-
dential information relating to its organisational activity.
Generally, in view of the Commission's obligation to state
transparency
the
requirement, such information can only in very excep-
tional circumstances be covered by the obligation of
professional secrecy. For example, information regarding
the organisation and costs of public services will not
information’
normally be considered ‘other confidential
(although it may constitute a business secret,
the
if
criteria laid down in section 3.1 are met).

its decisions and the

reasons

for

4. APPLICABLE PROCEDURE

4.1. General principles

(18) The Commission's main task is to reconcile two opposing
obligations, namely the requirement to state the reasons
for its decisions under Article 253 of the Treaty and
therefore
the
essential elements on which they are based, and that of
safeguarding the obligation of professional secrecy.

its decisions

contain all

ensure

that

(19) Besides the basic obligation to state the reasons for its
decisions, the Commission has to take into account the
need for effective application of the State aid rules (inter
alia, by giving Member States, beneficiaries and interested
parties the possibility to comment on or challenge its
its policy. There is
decisions) and for transparency of
therefore an overriding interest
in making public the
full substance of
its decisions. As a general principle,
requests for confidential treatment can only be granted
where strictly necessary to protect business secrets or
other confidential information meriting similar protection.

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(20) Business secrets and other confidential information do not
enjoy an absolute protection: this means for example that
they could be divulged when they are essential for the
Commission's statement of the reasons for its decisions.
This means that information necessary for the identifi-
cation of an aid measure and its beneficiary cannot
normally be covered by the obligation of professional
secrecy. Similarly,
information necessary to demonstrate
that the conditions of Article 87(1) of the Treaty are met,
covered by the obligation of
cannot normally be
professional
the Commission will
have to consider carefully whether the need for publi-
cation is more important, given the specific circumstances
of a case, than the prejudice that might be generated for
that Member State or undertaking involved.

secrecy. However,

(21) The public version of a Commission decision can only
feature deletions from the adopted version for reasons
of professional secrecy. Paragraphs cannot be moved,
and no sentence can be added or altered. Where the
Commission considers that certain information cannot
be disclosed, a footnote may be added, paraphrasing the
indicating a range of
non-disclosed information or
magnitude or size,
if useful to assure the comprehensi-
bility and coherence of the decision.

(22) Requests not to disclose the full text of a decision or
substantial parts of it which would undermine the under-
standing of the Commission's statement of reasons cannot
be accepted.

the complainant's interest

(23) If there is a complainant involved, the Commission will
take into account
in ascer-
taining the reasons why the Commission adopted a
certain decision, without the need to have recourse to
Court proceedings (1). Hence, requests by Member States
the decision which address concerns of
for parts of
complainants
covered by the obligation of
to be
professional secrecy will need to be particularly well
reasoned and persuasive. On the other hand,
the
Commission will not normally be inclined to disclose
information alleged to be of the kind covered by the
obligation of professional
secrecy where there is a
suspicion that the complaint has been lodged primarily
to obtain access to the information.

(24) Member States cannot

invoke professional secrecy to
refuse to provide information to the Commission which
the Commission considers necessary for the examination
of aid measures. In this respect, reference is made to the
procedure set out in Regulation (EC) No 659/1999 (in
particular Articles 2(2), 5, 10 and 16).

considers to be covered by the obligation of professional
secrecy. This time period may be extended by agreement
between the Commission and
State
concerned.

the Member

(26) Where the Member State concerned does not indicate
which information it considers to be covered by the obli-
secrecy within the period
gation of professional
decision will
by
prescribed
normally be disclosed in full.

the Commission,

the

(27) Where

the Member State concerned wishes certain
the obligation of
covered by
information to be
professional
it
it must
secrecy,
considers to be covered and provide a justification in
respect of each part for which non-disclosure is requested.

the parts

indicate

(28) The Commission will then examine the request from the
Member State without delay. If the Commission does not
accept that certain parts of the decision are covered by
the obligation of professional secrecy,
it will state the
reasons why in its view those parts cannot be left out
of the public version of the decision. In the absence of an
its
acceptable justification by the Member State for
request (i.e. reasoning which is not manifestly irrelevant
or manifestly wrong), the Commission need not further
specify the reasons why those parts cannot be left out of
the public version of the decision other than by referring
to the absence of justification.

(29) If the Commission decides to accept that certain parts are
covered by the obligation of professional secrecy without
agreeing in full with the Member State's request, it will
notify its decision with a new draft to the Member State
indicating the parts which have been omitted.
the
indicated by the
that
Commission accepts
the obligation of
covered by
are
Member
professional secrecy,
the decision will be
the text of
published pursuant to Article 26 of Regulation (EC) No
659/1999, with the omission of the parts covered by the
obligation of professional secrecy. Such omissions will be
indicated in the text (2).

the parts

State

If

(30) The Member State will have 15 working days following
receipt of the Commission's decision stating the reasons
for its refusal to accept the non-disclosure of certain parts,
to react and provide additional elements to justify its
request.

4.2. Procedure

(25) The Commission currently notifies its decisions to the
Member State concerned without delay and gives the
latter the opportunity to indicate, normally within a
time period of 15 working days, which information it

(31) If the Member State concerned does not react further
within the period prescribed by the Commission,
the
Commission will normally publish the decision as
indicated in its reply to the original request made by
the Member State.

(1) Case C-367/95 P Commission v Sytraval

[ECR] 1998 I-1719,

(2) Using square brackets [. . .] and indicating in a footnote ‘covered by

paragraph 64.

the obligation of professional secrecy’.

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(32) If the Member State concerned does submit any additional
elements within the prescribed period, those elements will
be examined by the Commission without delay. If the
indicated by the
Commission accepts
the obligation of
are
Member
professional secrecy,
the decision will be
published as set out in paragraph (29).

that
covered by
the text of

the parts

State

(33) In the event that it is not possible to reach agreement, the
its
Commission will proceed with the publication of
decision to initiate the formal
investigation procedure
forthwith. Such decisions must summarise the relevant
issues of fact and law, include a preliminary assessment
of the aid character of the proposed measure and set out
the doubts as to its compatibility with the common
market. Clearly certain essential
information must be
included in order to enable third parties and the other
Member States to comment usefully. The duty of the
information will
Commission to provide such essential
normally prevail over any claim to the protection of
business
information.
it is in the interest of the beneficiary as
Furthermore,
well as interested parties
to have access to such a
decision as quickly as possible. Permitting any delay in
this respect would jeopardise the process of State aid
control.

secrets or other

confidential

(34) In the event that it is not possible to reach agreement on
requests for certain information in decisions not to raise
objections and decisions to close the formal investigation
procedure to be covered by the obligation of professional
secrecy, the Commission will notify its final decision to
the Member State together with the text it intends to
publish, giving the Member State another 15 working
In the absence of an answer which the
days to react.
Commission considers pertinent,
the Commission will
normally proceed with the publication of the text.

In order

(35) The Commission is currently reviewing its State aid notifi-
cation forms.
to avoid unnecessary corre-
spondence with Member States and delay in the publi-
in the future, to include
cation of decisions, it intends,
in the form a question asking whether the notification
contains information which should not be published,
that
and the
the
question is

for non-publication. Only if
affirmative will

answered in the

reasons

into

enter

correspondence with

the information requested whether

the
Commission
if
Member State in respect of specific cases. Similarly,
additional
information is required by the Commission,
the Member State will have to indicate at the moment
such
it provides
information should not be published, and the reasons
for non-publication.
the
information thus identified by the Member State in its
decision,
it will communicate the adopted decision to
the Member State, stating the reasons why in its view
these parts cannot be left out from the public version
of the decision as laid down in paragraph (28).

the Commission uses

If

(36) Once the Commission has decided what

it will
final
publish and notified the Member State of
decision,
it is for the Member State to decide whether
or not to make use of any judicial procedures available
to it,
including any interim measures, within the time
limits provided for in Article 230 of the EC Treaty.

text

its

4.3. Third parties

(37) Where

third parties other

than the Member State
concerned (for example, complainants, other Member
States or
information in the
context of State aid procedures, these guidelines will be
applied mutatis mutandis.

the beneficiary)

submit

4.4. Application in time

(38) These guidelines cannot establish binding legal rules and
do not purport to do so. They merely set out in advance,
in the interests of sound administration, the manner in
which the Commission intends to address the issue of
if
confidentiality in State aid procedures. As a rule,
agreement cannot be reached, the Commission's decision
to publish may be the subject of specific judicial review
these guidelines merely pertain to
proceedings. As
set out
procedural matters
existing practice), they will be applied with immediate
including for decisions not to raise objections (1)
effect,
adopted before the entry into force of Regulation (EC)
No 659/1999 to which third parties seek access.

(and to a large extent

(1) Decisions to initiate the formal investigation procedure and final
decisions adopted before that date were already published in full in
the Official Journal of the European Communities. Prior to publication,
Member States could indicate whether any information was covered
by the obligation of professional secrecy.