Evonik Degussa GmbH v European Commission.
Date: 2017-03-14
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.
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.
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.
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.
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.
44


The aim of Article 8 of that decision is, therefore, as the General Court held in paragraph 41 of the judgment under appeal, 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.
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.
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.
51


However, as pointed out in 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 contested information.
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.
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.
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 42 of the judgment under appeal, the hearing officer to take into account only those rules intended to afford specific protection against disclosure of the information to the public, such as the rules in 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 (OJ 2001 L 8, p. 1) or in Regulation No 1049/2001.
55


It follows that the grounds which may restrict the disclosure of information, such as that communicated by the appellant 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.
64


As regards, first, the argument by which the appellant complains that the General Court applied to the publication of information communicated for the purposes of obtaining leniency a rule which may not be transposed to that context, it must be pointed out that information which was secret or confidential, but which is at least five years old, must as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes essential elements of its commercial position or that of interested third parties. Those considerations, which give rise to a rebuttable presumption, are valid both in the context of requests for confidential treatment in respect of parties intervening in actions before the EU Courts and in the context of requests for confidentiality with a view to the publication by the Commission of a decision finding an infringement of competition law.
77


In the first place, as regards the appellant’s argument concerning the rules derived from case-law restricting the conditions in which the Commission may, under Regulation No 1049/2001, disclose to third parties documents in the administrative file relating to a proceeding under Articles 101 TFEU and 102 TFEU, it must be stated, at the outset, that Regulation 1049/2001 does not apply in the context of the present case, which relates to the publication of information in a Commission decision finding an infringement of Article 101 TFEU. The question arises, therefore, of whether, despite the fact that that regulation does not apply to the present case, the case-law formulated on the basis of that regulation, under which the Court acknowledged that there was a general presumption capable of justifying the refusal to disclose the documents in a file relating to a proceeding under Article 101 TFEU, must, nonetheless, be transposed to the publication of decisions on infringements of Article 101 TFEU (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraphs 92 and 93).
89


In that regard, it is apparent from points 3 to 7 of the 2002 Leniency Notice, in force when the appellant submitted its request for leniency, 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.
90


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.
91


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.
92


Such an 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.
93


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.
94


In that regard, the 2002 Leniency Notices 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.
95


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.
96


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.
97


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.