JUDGMENT OF THE GENERAL COURT (Third Chamber)
15 July 2015 (*)
(Competition — Administrative procedure — European automotive glass market — Publication of a decision finding an infringement of Article 81 EC — Rejection of a request for confidential treatment of data allegedly covered by business secrecy — Obligation to state reasons — Confidentiality — Obligation of professional secrecy — Legitimate expectations)
In Case T‑462/12,
Pilkington Group Ltd, established in St Helens (United Kingdom), represented by J. Scott, S. Wisking, K. Fountoukakos-Kyriakakos, Solicitors, and C. Puech Baron, lawyer,
applicant,
v
European Commission, represented by M. Kellerbauer, P. Van Nuffel and G. Meessen, acting as Agents,
defendant,
APPLICATION for the partial annulment of Commission Decision C(2012) 5718 final of 6 August 2012 rejecting a request for confidential treatment submitted by Pilkington Group Ltd under Article 8 of 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 (Case COMP/39.125 — Car glass),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 28 January 2015,
gives the following
Judgment
Background to the dispute
1 On 12 November 2008 the Commission of the European Communities adopted Decision C(2008) 6815 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against several manufacturers of automotive glass (or carglass) including the applicant, Pilkington Group Ltd (Case COMP/39.125 — Car glass) (‘the carglass decision’).
2 The Commission found, inter alia, that the addressees of the carglass decision had infringed Article 81 EC and Article 53 of the EEA Agreement by participating, over various periods between March 1998 and March 2003, in a set of anticompetitive agreements and concerted practices in the automotive glass sector in the European Economic Area (EEA).
3 According to the carglass decision, the infringement at issue was a single and continuous infringement consisting in the concerted allocation of contracts concerning the supply of carglass pieces and/or car sets, comprising in general a windscreen, rear window and sidelights, to the major car manufacturers in the EEA. That concerted action, according to the Commission, took the form of a coordination of pricing policies and customer supply strategies, seeking to maintain an overall stability of the positions of the participants in the cartel on the market in question. That stability was sought in particular by corrective mechanisms, implemented where the concerted action failed to achieve the desired results.
4 By letter of 25 March 2009, the Commission Directorate-General (DG) for Competition (‘DG COMP’) informed the applicant of, inter alia, its intention to publish, pursuant to Article 30 of 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), a non-confidential version of the carglass decision on its website in the authentic languages of the case, namely English, French and Dutch. Moreover, DG COMP asked the applicant to identify any confidential information or information which constituted business secrets and to give reasons for its assessment in that regard.
5 Following an exchange of correspondence with the applicant, DG COMP adopted, in February 2012, the non-confidential version of the carglass decision to be published on the Commission website. It is apparent from the correspondence in question that DG COMP did not accept the applicant’s requests to redact information contained in 202 recitals of the carglass decision and 53 footnotes thereto.
6 According to DG COMP, that information can be divided into three categories. The first contains customer names, descriptions of the products concerned and any information that could allow an individual customer to be identified (‘Category I information’). The second contains the number of parts supplied; the allocation of quotas to each car manufacturer; price agreements, pricing calculations and price changes, and, last, the numbers or percentages involved in the allocation of customers between the cartel members (‘Category II information’). The third contains information concerning natural persons who were members of the applicant’s staff (‘Category III information’).
7 The applicant referred the matter to the Hearing Officer on 30 June 2011, pursuant to Article 9 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ 2001 L 162, p. 21), and objected to the publication of all the information at issue.
The contested decision
8 The Hearing Officer ruled on the applicant’s request by means of Commission Decision C(2012) 5718 final of 6 August 2012 rejecting a request for confidential treatment submitted by Pilkington Group, pursuant to Article 8 of 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 (Case COMP/39.125 — Car glass) (‘the contested decision’).
9 It is apparent from recital 18 of the contested decision that that decision rests essentially on the examination of two arguments put forward by the applicant. The first argument, examined in recitals 19 to 42 of the contested decision, concerns the Category I and Category II information, while the second argument, examined in recitals 43 to 48 of the contested decision, concerns the Category III information.
10 Concerning the first argument, the Hearing Officer decided, first, that the Category I and II information was, by its nature and in the light of the specific characteristics of the carglass market, known outside the applicant, secondly, that it was historical and, thirdly, that it was related to the very essence of the infringement, while, moreover, the interests of the persons harmed required its publication (recitals 19 to 32 of the contested decision). Furthermore, in so far as the applicant put forward specific arguments seeking to establish that the information was confidential notwithstanding its general characteristics as described above, the Hearing Officer concluded that recitals 198, 208, 367, 383 and 393 to 397 of the carglass decision might exceptionally be treated as confidential to the extent that they contained Category I and II information (recital 32, last sentence, to recital 42 and Articles 1 and 2 of the contested decision).
11 Regarding the second argument, the Hearing Officer relied on Article 5 of 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 2000 L 8, p. 1) and accepted the confidential treatment of information contained in recitals 98, 132, 160, 163 and in footnotes 282 and 410 of the carglass decision (recitals 43 to 47 and Article 3 of the contested decision).
12 The Hearing Officer rejected the applicant’s request as to the remainder (Article 4 of the contested decision).
Procedure and form of order sought
13 By application lodged at the Court Registry on 19 October 2012, the applicant brought the present action.
14 By order of 11 March 2013, the President of the General Court partially suspended the operation of the contested decision. By order of 10 September 2013 in Commission v Pilkington Group (C‑278/13 P(R), ECR, EU:C:2013:558), the Vice-President of the Court of Justice of the European Union dismissed the appeal brought by the Commission against the order of the President of the General Court.
15 By order of 27 November 2013, the President of the Third Chamber of the General Court dismissed the applications to intervene, in support of the forms of order sought by the Commission, lodged by four insurance companies active in the carglass sector.
16 By way of measures of organisation of procedure, the Court put a number of written questions to the Commission. The Commission replied to those questions by letters of 7 October and 18 December 2014.
17 The applicant claims that the Court should:
– annul the contested decision, in particular Article 4 thereof;
– order the Commission to pay the costs.
18 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
19 In support of its action, the applicant puts forward six pleas in law, claiming, respectively:
– failure to state sufficient reasons and error committed with respect to recital 115 of the carglass decision;
– infringement of Article 339 TFEU, Article 28 of Regulation No 1/2003 and Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the functions and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29);
– breach of the principle of equal treatment;
– breach of the principle of protection of legitimate expectations;
– breach of the principles governing protection of the identity of individuals;
– breach of the principle of proportionality and the principles governing public access to documents of the institutions.
The first plea in law: failure to state sufficient reasons and error committed with respect to recital 115 of the carglass decision
20 The applicant claims that the Hearing Officer rejected its request by stating reasons in a summary fashion and collectively, on the basis of irrelevant criteria. Furthermore, the reasons stated fail to specify clearly the rule of law applied, fail to respond to several arguments alleging an infringement of the principle of equal treatment, and fail to explain a specific instance of inconsistency with the position of DG COMP. First, the applicant claims that it had substantiated its request by individual reference to each recital concerned. Next, general reasoning is inherently insufficient, since the contested information, even that belonging to a single category, was very varied in nature, as is clear from the fact that some of it was recognised as confidential whereas other information was not. Finally, the general reference to the concept of ‘material facts’ of the infringement as an autonomous criterion and to the non-confidential nature of material submitted to the Commission as part of a leniency application, and the incoherent definitions of confidentiality mean that the contested decision is vitiated by a failure to state reasons. In those circumstances, the Commission infringed Article 296 TFEU and the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.
The complaint concerning a failure to state sufficient reasons
21 The purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting judicial review, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged. The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Further, the statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying that measure (judgment of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraphs 148, 150 and 151).
22 Under Article 8(2) of Decision 2011/695, the Hearing Officer is entitled to find that information may be disclosed either because it does not constitute a business secret or other confidential information, or because he considers that there is an overriding interest in its disclosure. Consequently, reasons must be stated for a conclusion that the information at issue may be disclosed, with reference to the considerations which led the Hearing Officer to take the view either that the information did not constitute a business secret or other confidential information, or that, even though that was so, there was an overriding interest in its disclosure.
23 In that context, the fact that one or more reasons underpinning the refusal to recognise confidentiality are relied on in relation to a number of items of information which, in the opinion of the Hearing Officer, have features in common, has no bearing on whether reasons are fully stated, provided that the contested decision makes it possible to understand the basis of the Hearing Officer’s conclusions. If the reasons concerned are not valid with respect to one or more items of information, the matter which is then at issue is whether the reasons stated are accurate and not whether those reasons are sufficient to satisfy essential procedural requirements (see, to that effect, judgment of 22 March 2001 in France v Commission, C‑17/99, ECR, EU:C:2001:178, paragraph 35).
24 In this case, it is apparent from recitals 19 to 32 of the contested decision that the Hearing Officer set out, first, certain features which were common to the Categories I and II information, in the light of which, in his opinion, that information cannot be classified as confidential. First, the information in question is, by its very nature, known to third parties; second, the information is historical, and, third, the information constitutes the very essence of the infringement.
25 Against that background, the Hearing Officer then examined whether, notwithstanding those features, the applicant had put forward specific arguments demonstrating that the information in question was confidential, in the sense that it was known to a limited number of persons, that its disclosure might cause serious harm and that the interests liable to be harmed by disclosure were objectively worthy of protection. In that regard, the Hearing Officer concluded that only recitals 198, 208, 367, 383 and 393 to 397 of the carglass decision contained information which ought not to be disclosed (recitals 33 to 42 of the contested decision).
26 Last, as regards the Category III information, the Hearing Officer considered, in recitals 46 and 47 of the contested decision, that only recitals 98, 132, 160 and 163 and footnotes No 282 and No 410 of the carglass decision contained information which gives rise, with a reasonable degree of certainty, to the identification of a natural person. On the other hand, according to recital 48 of the contested decision, the other recitals of the carglass decision which the applicant claims contain Category III information do not encompass information which gives rise, with a reasonable degree of certainty, to the identification of a natural person.
27 To the extent that the contested decision relies on such reasons, it contains material which enables both the Court and the applicant to identify the reasons why the Hearing Officer concluded that the information at issue was non-confidential, whether those reasons are specific to a particular item of information or whether they refer to the features of a number of items of information. Accordingly, the fact that the Hearing Officer made no separate assessment with respect to every single recital of the carglass decision against which the applicant’s request was directed does not imply that the contested decision is vitiated by a failure to state sufficient reasons. The applicant was therefore put in a position effectively to challenge the legality of the Hearing Officer’s analysis and the Court has the necessary information to make its judgment in that regard.
28 As regards moreover the complaints made that there was no indication of which legal rules were applied; that the reasons set out were not adapted to all the information at issue; that the concept of the ‘material facts’ of the infringement is not relevant; that the Category II information is not, by its nature, known outside the applicant; and that the definitions of confidentiality contained in the contested decision are incoherent, those complaints concern the substantive legality of the contested decision and their examination is undertaken in relation to the second and third pleas in law.
29 As regards the complaint that the Hearing Officer did not respond to the argument claiming a breach of the principle of equal treatment, that complaint is unfounded. Even if the obligations incumbent on the Hearing Officer extend to such an examination, he met such a requirement in recitals 14 and 15 of the contested decision by stating, first, that the approach adopted by the Commission in previous investigations could be altered by means of republication, in more complete form, of the decision finding the infringement and, second, that it cannot be inferred that any information omitted from the published version of such a decision falls within the ambit of professional secrecy. Whether that statement of reasons is correct falls within the scope of the question of whether those reasons are well founded and will be examined in relation to the third plea in law.
The complaint concerning an error committed with respect to recital 115 of the carglass decision
30 In contrast, it is apparent that the applicant is justified in objecting to the fact that the Hearing Officer explicitly rejected its request for confidentiality as regards recital 115 of the carglass decision, although DG COMP had already accepted that request.
31 In particular, under Article 8(2) of Decision 2011/695, the undertaking concerned may refer the matter to the Hearing Officer where it ‘objects to the disclosure of the information’. The undertaking is initially informed of that disclosure, when it is intended, by the Commission under Article 8(1) of that decision. It is apparent from those provisions that the powers of the Hearing Officer are limited by the request which is referred to him and that he does not have the power to call into question decisions taken by DG COMP where those involve acceptance of a request for confidentiality.
32 Moreover, in this case, it is clear from paragraph 4 of the Commission’s letter of 1 February 2012 that DG COMP agreed to remove from the published version of the carglass decision the names of the customers of the applicant mentioned in recital 115 of that decision, with the aim of protecting the identity of some members of its staff. In that regard, the Court must reject the Commission’s argument that the position set out in the letter of 1 February 2012 was only preliminary and was without prejudice to the Hearing Officer’s final decision. As stated in paragraph 31 above, the matter is referred to the Hearing Officer only where an undertaking objects to the intended disclosure. In contrast, where no disclosure is intended, the intervention of the Hearing Officer serves no purpose. Contrary to what is claimed by the Commission, the letter of 1 February 2012 illustrates that fact in paragraph 9 thereof, in that the applicant was invited to address itself to the Hearing Officer if it were not in agreement with the scope of the intended publication (‘[s]hould you not agree with the scope of the disclosure as described in this letter …’).
33 While it is true that the applicant included recital 115 of the carglass decision in its letters of 30 June and 7 November 2011 to the Hearing Officer, the fact remains that that inclusion is due to the fact that DG COMP had agreed not to publish the relevant part of recital 115 only by means of its letter of 1 February 2012, namely after the matter was referred to the Hearing Officer. Notwithstanding that being the case, the Hearing Officer expressly rejected the request for confidentiality with regard to recital 115 of the carglass decision (recital 48 of the contested decision), whereas it was incumbent on him to find that that request had already been granted by DG COMP and to refrain from giving any ruling on that matter.
34 The contested decision must therefore be annulled in so far as it rejects the request for confidentiality made by the applicant with regards to part of recital 115 of the carglass decision. The first plea in law must be rejected as to the remainder.
The second plea in law: infringement of Article 339 TFEU, Article 28 of Regulation No 1/2003 and Article 8 of Decision 2011/695
35 According to the applicant, the concept of confidential information covers business secrets, other information whose disclosure would seriously harm the commercial interests of an undertaking and, finally, personal data. Information is inherently confidential where it is known to a limited number of individuals and where its disclosure is likely to cause harm. Information satisfying those cumulative conditions may be disclosed only where there is an overriding interest, the determination of which must take place after the interests have been weighed, and strict interpretation is required. However, the Hearing Officer failed to assess concretely, on the basis of established criteria, whether the contested material was inherently confidential, before ruling on whether there was an overriding interest requiring its disclosure.
36 In particular, concerning the Category I information, the publication of the carglass decision in the version resulting from the contested decision would reveal, in consolidated form, the applicant’s main customers, the car models concerned and the car parts supplied at specific times. That disclosure would amount to the publication of a customer list together with details concerning relations with customers, that is to say inherently confidential information. If the mere fact that the applicant’s customers are in possession of information were sufficient to rule out any confidential treatment, no information concerning relations with customers could be classified as confidential, which would be absurd. The same applies to information exchanged between members of the cartel. With regard to the Category II information, the applicant claims that that is the very essence of information regarded as business secrets, not accessible even to specialist circles. None the less, the Hearing Officer failed to give reasons for his assessment that that confidential material, which also relates to current commercial relations, as is clear from recital 36 of the contested decision, is known outside the applicant. The latter recital is in addition vitiated by a contradiction in so far as it fails to explain the reason for the distinction made by the Hearing Officer between information which should be protected as confidential and that which may be published.
37 The applicant disputes also that the Category I and II information is historical. All the customers concerned continue to be its customers at the present time with respect to the car models referred to in the carglass decision. The findings set out in recital 37 of the contested decision show that harm will be caused in the event that the Category I information is disclosed. Furthermore, in the light of the characteristics of supply contracts, which are negotiated several years in advance and performed over an extended period, it cannot be assumed that the Category II information which is more than five years old is historical, since disclosure of that information is likely to reveal the identity of current customers and to render transparent a market characterised by bilateral negotiation. The applicant also set out specific reasons showing that that information is still relevant and, as a result, sensitive. Accordingly, the combined disclosure of the Category I and II information would grant the public an extremely detailed insight into the current relations of the applicant with its customers, a fact which the contested decision has already acknowledged in relation to several recitals of the carglass decision.
38 The applicant adds that the contested decision is in conflict with the standard practice which the Commission has adopted with respect to the confidential treatment of similar information in the past and jeopardises the effectiveness of the provisions relating to public access to documents of the institutions.
39 The applicant disputes in addition the application of the concept of material facts of the infringement made by the Hearing Officer in this case. In the applicant’s opinion, that concept extends to the holding of cartel meetings, the identity of the participating undertakings and the types of discussions, with no specific reference to names of customers or a description of the products directly concerned at each meeting being necessary. In any event, even if the Category I and II information was to be regarded as covered by that concept, it would not thereby cease to be confidential, since it would meet the relevant criteria set out in paragraph 35 above. The difference in the treatment of recital 207 of the carglass decision, on the one hand, and of recital 394, on the other hand, confirms that that approach is well founded and shows also that it is impossible to assess whether the application of that concept concerns all or merely part of the Category I and II information. A failure to state reasons should thus be identified in that respect.
40 The Hearing Officer also misapplied the criteria connected with the obligation of professional secrecy as regards information contained in a leniency statement, the confidentiality of which is not affected by the principle that the Commission should act openly or by the interests of persons allegedly harmed.
41 Last, the applicant claims that confidential information may be disclosed only where that is essential for the purposes of pursuing a public interest or the interests of parties harmed by the infringement. However, in this case, the disclosure of the confidential information at issue is not essential for the pursuit of such interests. That information does not concern the infringing behaviour as such, as is clear from the fact that the Hearing Officer upheld the applicant’s request in relation to certain material. Moreover, the non-confidential version already published permits the public to ascertain the grounds underlying the Commission's action and the parties allegedly harmed to assert their rights before the competent courts or tribunals.
42 In that regard, it must be recalled that, under Article 30(1) of Regulation No 1/2003, the Commission is to publish, inter alia, the decisions finding an infringement and imposing fines or periodic penalty payments. Under Article 30(2) thereof, the publication is to state the names of the parties concerned and the main content of the decision, including any penalties imposed. The Commission is to have regard to the legitimate interest of undertakings in the protection of their business secrets.
43 Article 28 of Regulation No 1/2003 provides that information collected pursuant to Articles 17 to 22 of that regulation may be used only for the purpose for which it was acquired and that persons working under the supervision of the competent authorities are prohibited from disclosing information covered by the obligation of professional secrecy.
44 Further, it is apparent from Article 8(2) of Decision 2011/695 that the Hearing Officer is entitled to find that information may be disclosed either because it does not constitute a business secret or other confidential information, or because he considers that there is an overriding interest in its disclosure.
45 The obligation of professional secrecy extends beyond business secrets to information which is known to only a limited number of persons and the disclosure of which is liable to cause serious harm to the person who has provided it or to third parties. Last, the interests liable to be harmed by disclosure of the information concerned must, objectively, be worthy of protection. The assessment of the confidentiality of a piece of information thus requires the legitimate interests which oppose disclosure of the information to be weighed against the public interest that the activities of the EU institutions take place as openly as possible (see, to that effect, judgment of 30 May 2006 in Bank Austria Creditanstalt v Commission, T‑198/03, ECR, EU:T:2006:136, paragraphs 29 and 71).
46 Admittedly, under paragraph 75 of the judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 45 above (EU:T:2006:136), and paragraph 64 of the judgment of 12 October 2007 in Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, ECR, EU:T:2007:306), in so far as the confidentiality of certain information is protected by an exception to the right of access to documents laid down in Article 4 of 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), such protection is relevant to the assessment of whether the Commission has respected the prohibition imposed on it in Article 28(2) of Regulation No 1/2003 not to disclose information which, by its nature, is covered by the obligation of professional secrecy.
47 However, subsequent to the delivery of those judgments, the Court of Justice interpreted Article 4 of Regulation No 1049/2001 as meaning that it is open to the institutions to base their decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature. That interpretation is required where the legislation governing a procedure also lays down strict rules as regards the treatment of information obtained or established in the course of such procedure (see, to that effect, judgment of 28 June 2012 in Commission v Éditions Odile Jacob, C‑404/10 P, ECR, EU:C:2012:393, paragraphs 108, 116 and 118). That is precisely the position with regard to Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18), which apply strict rules to the use of documents in the file relating to a proceedings under Article 101 TFEU (judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, ECR, EU:C:2014:112, paragraph 86). In that context, to take into account Article 4 of Regulation No 1049/2001 in such a way as to prohibit the Commission from publishing any information on the ground that the Commission is entitled to refuse, pursuant to that Article 4, access to documents in which that information is to be found by relying on a general presumption would render Article 30 of Regulation No 1/2003 meaningless. First, the effect of such an approach would be to deprive the Commission of the possibility of publishing even the main content of its decision, to the extent that that content must necessarily be apparent from the information in the investigation file. Second, the result of that approach would in practice be a reversal of the burden of proof which, as regards confidential treatment, lies on the undertaking which requests such treatment, since it would be sufficient for that undertaking to invoke the general presumption, which the institutions can invoke on the conditions described above, and in fact to oblige the Commission to demonstrate that the information at issue can be included in the published version of its decision. Consequently, the fact that the Commission, when dealing with a request for access to a set of documents described in general terms and to be found in the investigation file, may rely on a general presumption relating to the protection of one of the interests set out in Article 4 of Regulation No 1049/2001 (see, to that effect, judgment in Commission v EnBW, EU:C:2014:112, paragraphs 65 to 69) can be in no way prejudicial to the scope of the publication which the Commission may undertake under Article 30 of Regulation No 1/2003.
48 In this case, as regards the Category I information, the Hearing Officer stated that that information related to customer names, product names and descriptions and any other information which might identify a customer (recital 21 of the contested decision).
49 First, according to the Hearing Officer, that information is, by its very nature, known to third parties. Further, the carglass decision contains no list of customers or distributors, but refers to names of customers in the context of the description of infringement. The identity of the customer of a carglass manufacturer moreover ceases to be confidential because of the reference to the name of that manufacturer on the installed glass (recitals 22 to 24 of the contested decision).
50 Second, since the information in question concerns matters of fact which precede 3 September 2002, that information could no longer be characterised as confidential unless it is demonstrated that, notwithstanding that it is historical, it still constituted an essential element of the applicant’s commercial position. Moreover, neither the general description of the carglass market with its long-term contracts nor the assertion that it is possible to extrapolate from historical price information can negate the effects of the passage of time in this case (recitals 25 to 28 of the contested decision).
51 Third, the Hearing Officer stressed the interest of persons harmed by the infringement to assert their rights against its perpetrators and stated, in that context, that the Category I information had to be classified as within the material facts of that infringement (last sentence of recital 29, to recital 31 of the contested decision).
52 As regards the Category II information, the Hearing Officer stated that that information related to the quantities of car parts supplied, allocation of shares in the business of particular car manufacturers, agreements on prices, price calculations and price changes and, lastly, numbers and percentages involved in the allocation of customers among the members of the cartel (recital 21 of the contested decision).
53 In that regard, according to recitals 22 to 31 of the contested decision, the features which are characteristic of the Category I information described in paragraphs 49 to 51 above were also characteristic of the Category II information.
54 It followed, according to recital 32 of the contested decision, that, taking into consideration their general characteristics, the Category I and II information could not be classified as either secret or confidential. That being the case, unless there were specific factors to demonstrate that the conditions set out in paragraph 45 above were met, such information could not be the subject of confidential treatment. After examining whether such factors existed, the Hearing Officer came to the conclusions set out in paragraphs 25 and 26 above.
55 Contrary to what is claimed by the applicant, no error was made in those findings.
56 As regards the Category I information, it cannot be accepted that the identity of the applicant’s customers constitutes information which is known to a limited number of persons. In that regard, first, since the applicant itself provided its competitors with a list of its customers as part of the cartel arrangements, the publication in question will merely provide its customers with the opportunity to learn the identity of the applicant’s other customers. As observed by the Hearing Officer, according to standard practice in the carglass market, the glass installed in a car bears a visible indication of its trade origin, so that it is possible to associate a particular model with the supplier of glass. In that regard, the argument put forward by the applicant at the hearing, that the indication concerned provides no information on the identity of all the suppliers of a car model, is of no relevance. In particular, the information to the disclosure of which the applicant objects concerns the fact that the applicant supplied the glass of certain car marks or models. It does not concern the question whether other carglass producers also supplied the same marks or models.
57 It is moreover to be doubted that the drawing up of a list of the models for which the applicant supplied the glass over a certain period is unworkable due to major obstacles of a practical nature, linked to the large number of car models in circulation. Even if the existence of such obstacles is accepted, they should not be exaggerated, given that the specialist circles of car manufacturers already possess an expertise which enables them to draw accurate general conclusions on the basis of the markings on installed glass. As is apparent from recitals 76 to 86 of the carglass decision, and particularly recitals 77, 78 and 85 thereof, the carglass market is characterised by such a degree of transparency in terms of the identity of carglass suppliers that that information cannot be classified as confidential.
58 Further, the Hearing Officer’s finding that the information concerned is historical is also correct. In particular, information which was secret and confidential but is five or more years old and must, accordingly, be regarded as historical, does not remain either secret or confidential unless, exceptionally, the party concerned demonstrates that, despite its age, that information continues to constitute an essential element of its commercial position or that of the third party concerned (see, to that effect, order of 8 May 2012 in Spira v Commission, T‑108/07, EU:T:2012:226, paragraph 65 and the case-law cited). Since the Category I information is more than five years old as at the date of publication of the contested decision, it is in fact historical, and the applicant has failed to demonstrate that confidential treatment of that information is required by its current commercial position, with regard to the findings made in paragraph 56 and 57 above.
59 Last, as analysed by the Hearing Officer, the Commission is entitled, with due regard for the obligation of professional secrecy, to take account of the interests of persons harmed by the infringement by facilitating their actions seeking compensation for the harm suffered by them, that being a component of competition policy. The Commission may accordingly publish a version of its decision that is fuller than the minimum required by Article 30 of Regulation No 1/2003 (see, to that effect, judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 45 above, EU:T:2006:136, paragraphs 78 and 79).
60 As regards the Category II information, it must be stated that the Hearing Officer’s finding that that information is, by its very nature, known to third parties, is correct. It is true that information on prices agreed with each customer, on the quantities of car parts supplied and on details linked to commercial policy as realised in sales agreements can be classified, as a general rule, as business secrets. However, in this case, the applicant chose to communicate that information precisely to the persons and entities from whom that information is supposed to be secret. It is primarily those persons and entities who, through their very status as competitors of the applicant, are in a position to exploit the secrets concerned with the aim of causing the applicant harm, by taking account of that information in their commercial policies. None the less, as pointed out by the Commission, the applicant chose to renounce the secrecy of that information by communicating it directly to its competitors in exchange for an unlawful agreement as to their future conduct. The objective of that agreement was to eliminate the uncertainty inherent in a competitive environment attributable precisely to the secrecy of that kind of information, particularly from competitors. Consequently, there is no basis for the applicant’s claim that the effect of publication of the information concerned in the carglass decision will be improperly to enlarge the circle of persons privy to that information, since it is the applicant itself which directly shared that information with its main competitors. Against that background, the risk that the information concerned fall into the hands of the applicant’s competitors ceases to be relevant because of the applicant’s own conduct. Moreover, since the general public as such does not have the means to cause harm to the applicant’s commercial interests, the fact that the information concerned will be publicly available is legally of no consequence.
61 Further, as observed by the Hearing Officer in recitals 30 and 31 of the contested decision, to the extent the information at issue was not only the subject of discussion by competitors, but is the result of discussion by them, for example in the form of agreed prices or market shares, that information constitutes the very essence of the infringement. In particular, the information concerned is the product of a situation where secrecy from competitors, as required by Article 101 TFEU, was eliminated, and therefore came into existence because of the absence of that secrecy. Consequently, the value of that information for the applicant resided precisely in the fact that it was the product of an agreement eliminating the uncertainty inherent in the system of competition established by the Treaty. The Hearing Officer therefore did not err in law by emphasising the character of that information, in that it constitutes the very essence of the infringement, in order to rule out the possibility of it being known to only a limited number of persons.
62 This limitation on the scope of the obligation of professional secrecy is also reflected in Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the WTO, signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). Under that provision, the Member States of the WTO are obliged to protect, in accordance with the relevant rules, ‘undisclosed information’ provided that that information:
– is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
– has commercial value because it is secret; and
– has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
63 While it is true that that provision concerns intellectual property, the fact remains that it illustrates the idea that confidentiality has to be assessed in relation to the circles that normally deal with the kind of information concerned.
64 Moreover, by communicating that information to its competitors, the applicant revealed it to precisely those persons who are responsible for dealing with the corresponding information in the undertaking to which they belong. In addition, the applicant by definition made no effort to keep that information secret from the persons and entities with respect to whom above all that information was supposed to be confidential (see paragraphs 60 and 61 above).
65 In the light of the foregoing analysis, it cannot be accepted that the information concerned was known to only a limited number of persons for the purposes of the case-law cited in paragraph 45 above. The applicant’s arguments, that (i) the information concerned was known to only a limited number of persons and (ii) the criterion used by the Hearing Officer to the effect that that information constituted the material facts of the infringement was not relevant, must therefore be rejected.
66 The Court must also reject the applicant’s argument that it would be possible to extrapolate from the disclosed prices in order to determine current price levels. Apart from the fact that this implausible — given that those prices are historical (see paragraph 58 above) — assertion is unsupported, it must be recalled that, as stated in recital 28 of the contested decision, those prices were set in the context of a cartel arrangement between the main carglass producers. Consequently, in the absence of a specific explication of what interest that kind of information could have as part of an attempt to deduce the current price level, the applicant’s argument cannot be accepted.
67 The approach adopted by the Hearing Officer with regard to the information for which he rejected confidential treatment is moreover compatible with his reasoning as regards information which he considered to be worthy of protection.
68 In particular, it is apparent from recital 37 of the contested decision that, as regards the Category I information, the Hearing Officer agreed to redact the reference to a car manufacturer and two models of cars of a particular brand, with the aim of protecting the information that one of those models ‘was a loss-making contract for [the applicant]’ and that the applicant ‘was … apparently happy to get rid of it’. In particular, since that assessment, made by the Commission and seemingly not known outside the applicant, was previously published in the provisional version of the carglass decision and since its redaction therefore served no purpose, the Hearing Officer agreed to redact the references to the manufacturer, brand and models mentioned in recital 394 of the carglass decision. In order to maintain the effectiveness of that redaction, the Hearing Officer also agreed to omit the same data appearing in recitals 383, 393, 396 and 397 of the carglass decision. For the same reasons, the Hearing Officer agreed to conceal the names of the car manufacturers and car models in recitals 367 and 395 of the carglass decision, which contain the Commission’s assessments linked to there being technical difficulties with some carglass, the fact that those manufacturers and models were not popular with the glass producers and the fact that some of the prices charged were loss-making.
69 Further, as regards the Category II information, the Hearing Officer accepted, in recitals 35 and 36 of the contested decision, that the specific discount rates applied to prices mentioned in recitals 104, 134, 198, 208, 323 and 344 and in footnote No 294 of the carglass decision should be redacted, on the ground that discounts at the same level continue to be granted currently. That being the case, the Hearing Officer’s position is compatible with the exception that information which is in principle historical may be deemed to be confidential if it still constitutes an essential element of the commercial position of the applicant for confidentiality or that of the third party concerned (see paragraph 58 above).
70 Consequently, the applicant cannot effectively argue that those findings demonstrate that the conclusions of the Hearing Officer relating to the confidentiality of the Categories I and II information are invalid.
71 In the light of the foregoing analysis, the Hearing Officer was correct to state, with regard to the Category II information, that it was open to the Commission to take account of the interests of persons harmed by the infringement by facilitating their actions seeking compensation for the harm suffered (see paragraph 59 above).
72 As regards the applicant’s arguments that the contested decision is in conflict with the settled practice adopted in the past by the Commission with regard to the confidential treatment of information of a similar nature and would undermine the effectiveness of the provisions relating to public access to documents of the institutions, those arguments will be examined as part of the assessment of the third, fourth and sixth pleas in law (see paragraphs 77, 78 and 89 below).
73 Lastly, since this case does not concern information supplied in the context of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), the applicant’s argument that the Hearing Officer misapplied the criteria linked to the obligation of professional secrecy with regard to information contained in a leniency statement is ineffective, even though the Hearing Officer briefly referred to the leniency programme in general terms in recital 29 of the contested decision.
74 That being the case, the applicant’s arguments must be rejected in so far as they relate to that kind of information and, consequently, the second plea in law must be rejected.
The third and fourth pleas in law: breach of the principles of equal treatment and protection of legitimate expectations
75 The applicant claims that, by changing its policy concerning the publication of confidential information so as to depart from the practice followed in the past in specific and similar cases, the Commission infringed the principle of equal treatment. In addition, there has been no amendment of the legislative or regulatory framework to justify that new approach.
76 Further, the Commission’s settled practice consisting in the protection of confidential information such as that falling within Categories I and II caused the applicant to have a legitimate expectation. Accordingly, the applicant claims to be justified in relying on the principle of protection of a legitimate expectation that information covered by professional secrecy under Regulation No 1/2003 would not be disclosed.
77 In that regard, it must be noted that, as stated in paragraph 59 above, the Commission is entitled, within the framework of its powers in relation to the implementation of the rules of competition law within the European Union, to publish, with due regard to the rules governing the protection of professional secrecy referred to in paragraphs 42 to 47 above, versions of its decisions that are fuller than the minimum required by Article 30 of Regulation No 1/2003. Accordingly, as is also true with regard to the general level of fines (see, to that effect, judgment of 7 June 1983 in Musique Diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 109), the Commission is entitled to adjust its approach as to the publication of its decisions to the needs of its competition policy. The supervisory task conferred on the Commission by Article 101(1) TFEU and Article 102 TFEU not only includes the duty to investigate and punish individual infringements but also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles (judgment of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraph 170). Consequently, even if the contested decision might lead one to believe that there was a change in the Commission’s approach, as regards the degree of detail in the published version of the carglass decision, as compared with previous cases, that alone is not, in the light of the analysis of the second plea in law, capable of affecting the lawfulness of the contested decision.
78 Further, as is apparent from the findings made in connection with the second plea in law, the Category I and II information is not covered by the obligation of professional secrecy. Consequently, in so far as the applicant claims the benefit of the principle of protection of legitimate expectations based on the confidentiality of that information, its argument is based on a false premise. Otherwise, if the applicant’s argument is to be understood as claiming the benefit of the principle of protection of legitimate expectations irrespective of whether that information is confidential, it has to be concluded that, in the light of the Commission’s ability to adjust its approach to the requirements of the competition policy which it has the task of implementing within the European Union, the undertakings involved in an administrative procedure which may lead to the adoption of a decision which will fall to be published under Article 30 of Regulation No 1/2003 cannot obtain any such expectation as to the degree of detail relating to the non-confidential information to be disclosed (see, by analogy, the judgment in Dansk Rørindustri and Others v Commission, cited in paragraph 77 above, EU:C:2005:408, paragraphs 171 to 173, and the judgment of 18 May 2006 in Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03 P, ECR, EU:C:2006:328, paragraph 22).
79 The third and fourth pleas in law must therefore be rejected.
The fifth plea in law: infringement of the principles governing the protection of the identity of individuals
80 The applicant claims that, in the light of the Hearing Officer’s assessment regarding the Category I information, the contested decision results in the publication of information which allows some of its employees to be identified on the basis of mention of the posts held by them and the reference by name to its customers. Moreover, the publication of the carglass decision in the version resulting from the application of the contested decision would also be liable to lead to mistaken identifications, affecting the relationship of trust which should govern relations between the applicant’s staff and its customers. The Commission failed to show how, in so far as the Commission would be prevented from publishing customers’ names on the ground that that publication could facilitate the indirect identification of members of the applicant’s staff involved in the infringement, the possibility of persons allegedly harmed by the infringement bringing private actions against the applicant would be jeopardised.
81 In that regard, the Court must reject at the outset the Commission’s argument that the applicant is not entitled to raise arguments based on the interest of its employees. Article 8 of Decision 2011/695 does not provide for any such limitation as regard the administrative procedure, and consequently the applicant is entitled to challenge the lawfulness of the findings of the Hearing Officer in that regard.
82 Further, it must be observed that, where the Commission publishes a decision addressed to an undertaking which has taken part with its competitors in a cartel, the customers of the undertaking concerned will necessarily deduce that some of that undertaking’s employees were parties to the discussions under investigation and/or concluded the agreements under investigation. It is equally inevitable that those same customers will assume that the employees concerned are those responsible for commercial relations with them. The customers will make those deductions even if the Commission publishes an extremely summary version of its decision, containing solely the names of the addressees, a reference to the products concerned and a general description of the infringement. Consequently, the applicant cannot request that references to its customers be omitted from the published version of the carglass decision on the ground that those customers would be able to deduce the names of the natural persons who took part in the anticompetitive arrangements.
83 Moreover, the applicant is wrong to rely on the lack of trust, on the part of its customers vis-à-vis some members of its staff, which might be the consequence of publication of the carglass decision in the version resulting from the implementation of the contested decision. First, to the extent that there were to be such a lack of trust, that would be the consequence of the applicant’s anticompetitive conduct, which was, by its very object, liable to harm the financial interests of its customers. Second, the applicant’s customers will inevitably assume that the persons responsible for their accounts took part in the cartel, whether the Commission publishes the names of the customers concerned or not. Since, as the applicant itself states, its customers are familiar with some details of its internal organisation, notably the names of the persons responsible for supervising their accounts, those customers will have suspicions with regard to some of those officials, whatever the scope of the publication at issue. Third, in so far as the applicant expresses concern on the subject of mistaken identifications, suffice it to observe that the omission of the names of its customers does not reduce the possibility of such mistakes. In particular, the reference to the names of customers as part of a description of contacts among competitors clarifies the fact that the contacts concerned related to one or more particular customers. The effect of omitting any reference to the name(s) of a customer/customers or model(s) will be that all the customers of the applicant will suspect that the person in charge of their account took part in those contacts. In that context, reference by name to the customer(s) concerned may even reduce the uncertainty and suspicion which would be the consequence of the omission of all names from the published version of the carglass decision.
84 In that context, the Hearing Officer was correct to state, in recital 46 of the contested decision, that only information giving rise to the positive identification of an individual ought to be redacted. It follows moreover from recital 47 of the contested decision that that applies, according to the Hearing Officer, to direct references to the name, post and, in some cases, telephone number of an individual, accompanied by the names of customers for whom he or she was responsible. In such situations, the Hearing Officer accepted that the name and post occupied should be redacted and that, if the post was previously published in the non-confidential version of the carglass decision, the name of the customer concerned should be redacted.
85 On the other hand, as held by the Hearing Officer, the information to be found in those recitals and footnotes of the carglass decision that are referred to in recital 48 of the contested decision cannot be redacted on the grounds of protection of the identity of individuals. That information makes reference to discussions between competitors on certain customers and models, without mentioning the name or post of the individuals involved. In that context, to redact the names of the customers concerned is not likely to reduce the suspicions which might be formed by the applicant’s customers as to the identity of the persons involved.
86 The fifth plea in law must therefore be rejected.
The sixth plea in law: breach of the principle of proportionality and the principles governing public access to documents of the institutions
87 The applicant claims that the contested decision has consequences which go beyond what is necessary to protect the interests of persons wishing to assert their rights against it before the national courts. Since the disclosure of the information at issue would seriously harm the applicant’s commercial interests and those of certain natural persons, it is contrary to the provisions governing public access to the investigation file. Furthermore, the national courts are the appropriate forums for dealing with questions connected with the disclosure of the information at issue.
88 In that regard, it must be recalled that, for the reasons stated in connection with the second plea in law, the information at issue is not covered by the obligation of professional secrecy. Consequently, the Commission may include that information in the public version of its decision even if it has not been established that such an inclusion is strictly necessary for the purposes of ensuring that the persons harmed by the infringement have judicial protection. Further, it cannot be seriously disputed that publication of the information concerned contributes to better judicial protection of the persons harmed by the conduct of the addressees of the carglass decision. The publication of that decision falls within the powers of the Commission under Article 30 of Regulation No 1/2003, and that publication is not affected in any way by the fact that access to the information at issue may be adjusted within legal proceedings before the national courts.
89 As regards, last, the argument concerning the provisions governing public access to the investigation file, suffice it to state that the rules concerned relate to access to documents which are part of the investigation file. Accordingly, for the reasons set out in paragraph 47 above, those rules are not applicable to the publication of the decision which the Commission adopted on the conclusion of that investigation. Consequently, that argument, and the sixth plea in law, must be rejected.
90 In the light of the foregoing, the contested decision must be partially annulled in so far as it relates to the applicant’s request with respect to recital 115 of the carglass decision (see paragraphs 30 to 34 above) and the action must be dismissed for the remainder.
Costs
91 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
92 Since the applicant has essentially been unsuccessful, it must be ordered to pay the costs of the present proceedings, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls Commission Decision C(2012) 5718 final of 6 August 2012 rejecting a request for confidential treatment submitted by Pilkington Group Ltd under Article 8 of 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 (Case COMP/39.125 — Car glass), in so far as it relates to the request by Pilkington Group concerning recital 115 of Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement;
2. Dismisses the action as to the remainder;
3. Orders Pilkington Group to pay the costs.
Papasavvas | Forwood | Bieliūnas |
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]