AKZO Chemie BV and AKZO Chemie UK Ltd v Commission of the European Communities.
Date: 1986-06-24
19 IT IS NECESSARY TO DETERMINE WHETHER THAT DECISION CLEARLY ALTERED THE APPLICANT ' S LEGAL POSITION OR WHETHER IT WAS MERELY A PREPARATORY STEP AGAINST WHICH , IF IT WAS UNLAWFUL , THE ACTION BROUGHT AGAINST THE DECISION CONCLUDING THE PROCEDURE WOULD PROVIDE SUFFICIENT PROTECTION .
20 IT IS CERTAINLY TRUE THAT THE DOCUMENTS WERE TRANSMITTED WITH A VIEW TO FACILITATING THE EXAMINATION OF THE CASE . HOWEVER , THE MEASURE ADVERSELY AFFECTING THE APPLICANT IS , AS IS CLEAR FROM THE FOREGOING PARAGRAPHS , THE DECISION IN WHICH THE COMMISSION CONSIDERED THAT THE DOCUMENTS IN QUESTION DID NOT QUALIFY FOR THE CONFIDENTIAL TREATMENT GUARANTEED BY COMMUNITY LAW AND COULD THEREFORE BE COMMUNICATED . THAT MEASURE IS DEFINITIVE IN NATURE AND IS INDEPENDENT OF ANY DECISION ON THE QUESTION WHETHER ARTICLE 86 OF THE TREATY HAS BEEN INFRINGED . THE OPPORTUNITY WHICH THE APPLICANT HAS TO BRING AN ACTION AGAINST A FINAL DECISION ESTABLISHING THAT THE COMPETITION RULES HAVE BEEN INFRINGED IS NOT OF SUCH A NATURE AS TO PROVIDE IT WITH AN ADEQUATE DEGREE OF PROTECTION OF ITS RIGHTS IN THE MATTER . ON THE ONE HAND , IT IS POSSIBLE THAT THE ADMINISTRATIVE PROCEDURE WILL NOT RESULT IN A DECISION FINDING THAT AN INFRINGEMENT HAS BEEN COMMITTED . ON THE OTHER HAND , IF AN ACTION IS BROUGHT AGAINST THAT DECISION , IT WILL NOT IN ANY EVENT PROVIDE THE APPLICANT WITH THE MEANS OF PREVENTING THE IRREVERSIBLE CONSEQUENCES WHICH WOULD RESULT FROM IMPROPER DISCLOSURE OF CERTAIN OF ITS DOCUMENTS .
21 AKZO ' S INTEREST IN CONTESTING THE DECISION IN QUESTION CANNOT BE DENIED ON THE GROUND THAT IN THIS CASE THE DECISION HAD ALREADY BEEN IMPLEMENTED AT THE TIME WHEN THE ACTION WAS BROUGHT . THE ANNULMENT OF SUCH A DECISION IS OF ITSELF CAPABLE OF HAVING LEGAL CONSEQUENCES , IN PARTICULAR BY PREVENTING A REPETITION BY THE COMMISSION OF THE PRACTICE COMPLAINED OF AND BY RENDERING UNLAWFUL THE USE BY ECS OF ANY DOCUMENTS IMPROPERLY COMMUNICATED TO IT .
23 HOWEVER , THE APPLICATION FOR AN ORDER REQUIRING THE COMMISSION TO DEMAND ECS TO RETURN THE DOCUMENTS TRANSMITTED TO IT MUST BE REGARDED AS INADMISSIBLE SINCE THE COURT HAS NO JURISDICTION TO MAKE SUCH AN ORDER IN CONNECTION WITH A REVIEW OF THE LEGALITY OF AN ACT UNDER ARTICLE 173 OF THE TREATY . ACCORDING TO ARTICLE 176 OF THE TREATY , IT IS FOR THE INSTITUTION WHOSE ACT HAS BEEN DECLARED VOID TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT .

SUBSTANCE OF THE CASE 24 THE APPLICANT PUTS FORWARD THREE SUBMISSIONS IN SUPPORT OF ITS APPLICATION . IN THE FIRST PLACE , IT ALLEGES THAT BY COMMUNICATING TO ECS CERTAIN DOCUMENTS WHICH WERE ALL IN SOME WAY CONFIDENTIAL , THE COMMISSION ACTED IN BREACH OF ITS OBLIGATION NOT TO DISCLOSE INFORMATION WHICH IS COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY OR WHICH IS SUBJECT TO PROTECTION AS A BUSINESS SECRET . IN THE SECOND PLACE , BY COMMUNICATING TO ECS CERTAIN DOCUMENTS WHICH THE LATTER COULD USE IN THE LEGAL PROCEEDINGS PENDING IN THE UNITED KINGDOM , THE COMMISSION INFRINGED ARTICLE 20 ( 1 ) OF REGULATION NO 17/62 WHICH PROVIDES THAT INFORMATION ACQUIRED BY THE COMMISSION IN THE EXERCISE OF ITS POWERS OF INVESTIGATION MAY BE USED ONLY FOR THE PURPOSE FOR WHICH IT WAS OBTAINED . FINALLY , THE COMMISSION HAS INFRINGED ARTICLE 185 OF THE TREATY INASMUCH AS , BY IMPLEMENTING ITS DECISION BEFORE NOTIFYING IT TO THE APPLICANT , IT DEPRIVED THE LATTER OF THE POSSIBILITY OF APPLYING FOR AN ORDER SUSPENDING THE OPERATION OF THAT DECISION AT THE SAME TIME AS IT INSTITUTED PROCEEDINGS FOR ANNULMENT .
26 IN THE FIRST PLACE , IT MUST BE BORNE IN MIND THAT ARTICLE 214 OF THE TREATY REQUIRES THE OFFICIALS AND OTHER SERVANTS OF THE INSTITUTIONS OF THE COMMUNITY NOT TO DISCLOSE INFORMATION IN THEIR POSSESSION OF THE KIND COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY . ARTICLE 20 OF REGULATION NO 17/62 , WHICH IMPLEMENTS THAT PROVISION IN REGARD TO THE RULES APPLICABLE TO UNDERTAKINGS , CONTAINS IN PARAGRAPH ( 2 ) A SPECIAL PROVISION WORDED AS FOLLOWS : ' WITHOUT PREJUDICE TO THE PROVISIONS OF ARTICLES 19 AND 21 , THE COMMISSION AND THE COMPETENT AUTHORITIES OF THE MEMBER STATES , THEIR OFFICIALS AND OTHER SERVANTS SHALL NOT DISCLOSE INFORMATION ACQUIRED BY THEM AS A RESULT OF THE APPLICATION OF THIS REGULATION AND OF THE KIND COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY . '
27 THE PROVISIONS OF ARTICLES 19 AND 21 , THE APPLICATION OF WHICH IS THUS RESERVED , DEAL WITH THE COMMISSION ' S OBLIGATIONS IN REGARD TO HEARINGS AND THE PUBLICATION OF DECISIONS . IT FOLLOWS THAT THE OBLIGATION OF PROFESSIONAL SECRECY LAID DOWN IN ARTICLE 20 ( 2 ) IS MITIGATED IN REGARD TO THIRD PARTIES ON WHOM ARTICLE 19 ( 2 ) CONFERS THE RIGHT TO BE HEARD , THAT IS TO SAY IN REGARD , IN PARTICULAR , TO A THIRD PARTY WHO HAS MADE A COMPLAINT . THE COMMISSION MAY COMMUNICATE TO SUCH A PARTY CERTAIN INFORMATION COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY IN SO FAR AS IT IS NECESSARY TO DO SO FOR THE PROPER CONDUCT OF THE INVESTIGATION .
28 HOWEVER , THAT POWER DOES NOT APPLY TO ALL DOCUMENTS OF THE KIND COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY . ARTICLE 19 ( 3 ) WHICH PROVIDES FOR THE PUBLICATION OF NOTICES PRIOR TO THE GRANTING OF NEGATIVE CLEARANCE OR EXEMPTIONS , AND ARTICLE 21 WHICH PROVIDES FOR THE PUBLICATION OF CERTAIN DECISIONS , BOTH REQUIRE THE COMMISSION TO HAVE REGARD TO THE LEGITIMATE INTEREST OF UNDERTAKINGS IN THE PROTECTION OF THEIR BUSINESS SECRETS . BUSINESS SECRETS ARE THUS AFFORDED VERY SPECIAL PROTECTION . ALTHOUGH THEY DEAL WITH PARTICULAR SITUATIONS , THOSE PROVISIONS MUST BE REGARDED AS THE EXPRESSION OF A GENERAL PRINCIPLE WHICH APPLIES DURING THE COURSE OF THE ADMINISTRATIVE PROCEDURE . IT FOLLOWS THAT A THIRD PARTY WHO HAS SUBMITTED A COMPLAINT MAY NOT IN ANY CIRCUMSTANCES BE GIVEN ACCESS TO DOCUMENTS CONTAINING BUSINESS SECRETS . ANY OTHER SOLUTION WOULD LEAD TO THE UNACCEPTABLE CONSEQUENCE THAT AN UNDERTAKING MIGHT BE INSPIRED TO LODGE A COMPLAINT WITH THE COMMISSION SOLELY IN ORDER TO GAIN ACCESS TO ITS COMPETITORS '  BUSINESS SECRETS .
29 IT IS UNDOUBTEDLY FOR THE COMMISSION TO ASSESS WHETHER OR NOT A PARTICULAR DOCUMENT CONTAINS BUSINESS SECRETS . AFTER GIVING AN UNDERTAKING AN OPPORTUNITY TO STATE ITS VIEWS , THE COMMISSION IS REQUIRED TO ADOPT A DECISION IN THAT CONNECTION WHICH CONTAINS AN ADEQUATE STATEMENT OF THE REASONS ON WHICH IT IS BASED AND WHICH MUST BE NOTIFIED TO THE UNDERTAKING CONCERNED . HAVING REGARD TO THE EXTREMELY SERIOUS DAMAGE WHICH COULD RESULT FROM IMPROPER COMMUNICATION OF DOCUMENTS TO A COMPETITOR , THE COMMISSION MUST , BEFORE IMPLEMENTING ITS DECISION , GIVE THE UNDERTAKING AN OPPORTUNITY TO BRING AN ACTION BEFORE THE COURT WITH A VIEW TO HAVING THE ASSESSMENTS MADE REVIEWED BY IT AND TO PREVENTING DISCLOSURE OF THE DOCUMENTS IN QUESTION .