AGC Glass Europe and Others v European Commission.
Date: 2017-07-26
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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.
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.
Consequently, the first ground of appeal must be rejected in its entirety as ineffective.
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).