Case C-162/15 P: Appeal brought on 8 April 2015 by Evonik Degussa GmbH against the judgment of the General Court (Third Chamber) of 28 January 2015 in Case T-341/12 Evonik Degussa GmbH v European Commission
Date: 2015-04-08
Institutions: Court of Justice
Subjects: competition policy, confidentiality, control of restrictive practices, exchange of information, interpretation of the law, judicial inquiry, principle of legal certainty, professional secret, right to justice








C_2015198EN.01002402.xml










15.6.2015   


EN


Official Journal of the European Union


C 198/24





Appeal brought on 8 April 2015 by Evonik Degussa GmbH against the judgment of the General Court (Third Chamber) of 28 January 2015 in Case T-341/12 Evonik Degussa GmbH v European Commission

(Case C-162/15 P)
(2015/C 198/33)
Language of the case: German

Parties


Appellant: Evonik Degussa GmbH (represented by: C. Steinle, C. von Köckritz and A. Richter, Rechtsanwälte)

Other party: European Commission

Form of order sought

The appellant claims that the Court should:






1.


set aside the judgment of the General Court (Third Chamber) of 28 January 2015 in Case T-341/12 Evonik Degussa GmbH v European Commission;










2.


annul Commission Decision C(2012) 3534 final of 24 May 2012 in Case COMP/38.620 Hydrogen Peroxide and Perborate, concerning the refusal of a request by Evonik Degussa for confidential treatment of information in the decision in Case COMP/F/38.620 — Hydrogen Peroxide and Perborate, pursuant to the fourth paragraph of Article 263 TFEU; and










3.


order the Commission to pay the appellant’s costs of the proceedings before the General Court and the Court of Justice.





Grounds of appeal and main arguments

The appellant relies upon three grounds of appeal.

First ground of appeal, alleging that the General Court wrongly interpreted 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 (1) and erred in law in not finding that the Commission failed to state reasons and that the hearing officer failed to correctly exercise his discretion in the decision on the publication of the information at issue. The attempt of the General Court to read the reasoning contained in the correspondence of the responsible officer at the Directorate-General for Competition with the appellant ‘into’ the hearing officer’s report contradicts not only the clear wording of the hearing officer’s decision and is thereby based upon a manifest distortion of the decision of which annulment is sought, but also led to a restriction of the appellant’s right to effective judicial protection.

Second ground of appeal, alleging that the General Court erred in interpreting Article 339 TFEU and Article 30 of Regulation No 1/2003 (2). The General Court proceeded on the erroneous assumption that the information at issue resulting from leniency applicants’ statements did not fall under the protection of professional secrecy and that their publication under Article 30 of Regulation No 1/2003 lay in the discretion of the Commission. The publication of printed words such as extracts from leniency applicants’ written statements in a Commission decision was a partial publication of those leniency applicants’ statements, which was prohibited under points 32 et seq. of the 2002 Commission Notice on Immunity from fines and reduction of fines in cartel cases and paragraph 40 of the 2006 Commission Notice on Immunity from fines and reduction of fines in cartel cases. In addition, the General Court misinterpreted Article 4(2) of Regulation No 1049/2001 (3) and the Court of Justice’s case-law in that respect concerning the publication of extracts from Commission decisions.

Third ground of appeal, alleging that the General Court erred in its application of the fundamental principles of legal certainty and of the protection of legitimate expectations. In its judgment, the General Court proceeded on the erroneous assumption that the appellant’s legitimate expectations would not be harmed through the re-publication of the decision in an extended version. The administrative proceedings brought by the Commission against the appellant were brought to a close with the publication of the non-confidential version of the decision in 2007. The re-publication of the 2007 decision in an extended, non-confidential decision after those proceedings had been brought to a close was unlawful.


(1)  OJ 2011 L 275, p. 29.

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(3)  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).