JUDGMENT OF THE GENERAL COURT (Third Chamber)
15 July 2015(*) (1)
(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 information the Commission intends to publish — Obligation to state reasons — Confidentiality — Obligation of professional secrecy — Leniency programme — Legitimate expectations — Equal treatment)
In Case T‑465/12,
AGC Glass Europe SA, established in Brussels (Belgium),
AGC Automotive Europe SA, established in Fleurus (Belgium),
AGC France SAS, established in Boussois (France),
AGC Flat Glass Italia Srl, established in Cuneo (Italy),
AGC Glass UK Ltd, established in Northampton (United Kingdom),
AGC Glass Germany GmbH, established in Wegberg (Germany),
represented by L. Garzaniti, J. Blockx, P. Niggemann, A. Burckett St Laurent, lawyers, and S. Ryan, Solicitor,
applicants,
v
European Commission, represented by M. Kellerbauer, G. Meessen and P. Van Nuffel, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2012) 5719 final of 6 August 2012 on the rejection of a request for confidential treatment submitted by AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH, 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 2 March 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, in which it found against a number of automotive glass (carglass) manufacturers, including the applicants: AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH, (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 Agreement on the European Economic Area (EEA) 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 EEA.
3 According to the carglass decision, the infringement in question was a single and continuous infringement consisting in the concerted allocation of contracts relating to the supply of carglass pieces and/or car sets, generally consisting of a windscreen, rear window and sidelights, to the major car manufacturers in the EEA. According to the Commission, that concerted action took the form of the coordination of pricing policies and customer supply strategies designed to maintain an overall stability of the position of the parties to the cartel on the market concerned. That stability was ensured, in particular, by corrective measures implemented when the concerted action had not produced the desired results.
4 By letter of 25 March 2009, the Commission’s Directorate-General (DG) for Competition informed the applicants, inter alia, of its intention to publish, in accordance with 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 [EC] and 82 [EC] of the Treaty (OJ 2003 L 1, p. 1), a non‑confidential version of the carglass decision on its website in English, French and Dutch, the authentic languages of the case. DG Competition also asked the applicants to identify any information that was confidential or which constituted business secrets and to give reasons for their assessment in that regard.
5 In December 2011, following an exchange of correspondence with the applicants, DG Competition adopted 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 Competition did not act on the applicants’ requests for the redaction of information contained in 246 recitals of the carglass decision and 122 footnotes thereto.
6 According to DG Competition, that information can be divided into three categories. The first contains customer names, descriptions of the products concerned and any information that could enable an individual customer to be identified (‘Category I information’). The second contains the number of parts supplied, the allocation of quotas to each of the car manufacturers, 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 purely administrative information consisting of references to documents in the file (‘Category III information’).
7 The applicants referred the matter to the Hearing Officer on 20 January 2012 in accordance with 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), objecting to the publication of the Category I and Category II information and the publication of part of a sentence in recital 726 of the carglass decision. By letter of 21 May 2012, the applicants withdrew their request with respect to the Category II information.
The contested decision
8 The Hearing Officer ruled on the applicants’ request by Commission Decision C(2012) 5719 final of 6 August 2012 on the rejection of a request for confidential treatment submitted by the applicants, adopted 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 In the form of a number of preliminary points, the Hearing Officer stated, first, that the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’) does not mean that the applicants had a legitimate expectation preventing the Commission from publishing information not covered by professional secrecy. Furthermore, the applicants’ interest in the non-disclosure of details of their conduct not covered by professional secrecy did not warrant any particular protection. The Hearing Officer stated moreover that he was not competent to decide whether it was appropriate to publish non-confidential information or to take a position as regards any adverse effects that might have been brought about by the Commission’s general policy in that regard (recitals 12 to 14 and 19 of the contested decision).
10 As a second preliminary point, the Hearing Officer rejected the argument that the Commission was bound by its previous practice relating to the extent of the publication. The Hearing Officer also noted that the intended publication did not mention the source of the leniency statements or other documents submitted in that connection, but pointed out that he was not competent to rule on the extent of the intended publication in the light of the principle of equal treatment, taking into consideration the applicants’ status as applicants for leniency (recitals 16 to 18 of the contested decision).
11 It is apparent from recital 21 of the contested decision that that decision essentially rests on the examination of two arguments put forward by the applicants. The first argument, examined in recitals 22 to 35 of the contested decision, relates to the inherently confidential nature of the information at issue and the second argument, examined in recitals 36 to 45 of the contested decision, relates to the protection of the identity of natural persons.
12 As regards the first argument, the Hearing Officer found first that, given the specific characteristics of the carglass market, the Category I information, consisting in customer names and descriptions of the products concerned, was by its very nature known outside the applicants, second, that it was historical, and, third, that it referred to the very essence of the infringement, and, moreover, the interests of the persons harmed required its disclosure (recitals 24 to 29 of the contested decision). Furthermore, to the extent that the applicants had raised specific arguments seeking to establish that the information was confidential notwithstanding its general characteristics as described above, the Hearing Officer concluded, following an analysis which took account of three cumulative conditions, that the Category I information was not covered by the obligation of professional secrecy (recital 30, last sentence, to recital 35 of the contested decision).
13 As regards 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 that the information contained in recitals 115, 128, 132, 252 and 562, and in footnote 282, of the carglass decision should be given confidential treatment (recitals 36 to 45 and Article 2 of the contested decision).
14 The Hearing Officer also accepted that confidential treatment should be given to part of a sentence in recital 726 of the carglass decision (recital 8 and Article 1 of the contested decision).
15 The Hearing Officer refused the applicants’ request as to the remainder (Article 3 of the contested decision).
Procedure and forms of order sought by the parties
16 By application lodged at the Court Registry on 19 October 2012, the applicants brought the present action.
17 By order of 27 November 2013, the President of the Third Chamber of the General Court refused the applications lodged by four insurance companies active in the carglass sector for leave to intervene in support of the forms of order sought by the Commission.
18 The applicants claim that the Court should:
– annul Article 3 of the contested decision;
– order the Commission to pay the costs;
– take any other measures considered appropriate.
19 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
20 In support of their action, the applicants rely on six pleas in law, claiming, respectively:
– infringement of 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 (OJ 2011 L 275, p. 29);
– breach of the principle of the protection of legitimate expectations;
– breach of the principle of equal treatment and of the obligation to state reasons;
– breach of the principle of good administration;
– infringement of the provisions on public access to documents of the EU institutions;
– infringement of the provisions on the protection of professional secrecy.
21 It is appropriate to examine first the sixth plea in law.
The sixth plea in law: infringement of the provisions relating to the protection of professional secrecy
22 The applicants claim that, contrary to the findings made by the Hearing Officer, the Category I information discloses their customer relations almost in their entirety and is therefore not known to specialist circles. In so far as the Hearing Officer failed to examine the related arguments, the contested decision is vitiated by a failure to state sufficient reasons. Moreover, the identity of the applicants’ customers still constitutes confidential information despite its age, given the typical long-term nature of commercial relations in the carglass market. That kind of information is not known outside the applicants and is thus inherently confidential, and its disclosure in a consolidated form would significantly harm the applicants’ commercial interests, which are worthy of protection. In that regard, the applicants contest the distinction made by the Commission between documents which are part of the file, on the one hand, and information resulting from those documents, on the other.
23 The applicants also submit that the public interest does not call for the publication of the information at issue, since the information which is already published is more than sufficient to enable third parties to understand the grounds on which the Commission’s action is based and, if appropriate, to bring any claims for damages. The interests of the applicants as applicants for leniency should therefore prevail as regards publication of the Category I information, which is confidential. The arbitrary application of an extremely broad and irrelevant criterion relating to the classification of the Category I information as ‘material facts of the infringement’ renders Article 30(2) of Regulation No 1/2003 meaningless and constitutes a breach of the principle of good administration. Last, since any reference by name to a customer of the applicants is likely to make it possible to identify a natural person, the contested decision infringes the rules governing the protection of personal data.
24 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.
25 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.
26 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.
27 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 as to the confidentiality of a piece of information thus requires the legitimate interests opposing 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).
28 Admittedly, under paragraph 75 of the judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 27 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.
29 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 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), which apply strict rules to the use of documents in the file relating to 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, in so far as 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.
30 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 24 of the contested decision).
31 Moreover, the Hearing Officer considered, first, that that information was, by its very nature, known outside the applicants, who put forward no arguments or evidence to demonstrate the contrary (recital 24 of the contested decision).
32 Second, since the information in question concerned matters of fact which predated 11 March 2003, the Hearing Officer considered that that information could no longer be classified as confidential unless it was demonstrated that, notwithstanding that it was historical, it still constituted an essential element of the applicants’ commercial position. Moreover, the general description of the carglass market with its long-term contracts could not negate the effects of the passage of time in this case, when, furthermore, the applicants had failed to demonstrate that the information concerned still constitutes an essential element of their commercial position or that specifically identified confidential information could be deduced from it (recital 27 of the contested decision).
33 Third, the Hearing Officer stated that the material facts of an infringement cannot be classified as confidential on the ground that they are recounted in an application for leniency. In that context, the Hearing Officer emphasised the obligation on the Commission to conduct its work as openly as possible and recalled the interest of persons harmed by the infringement to assert their rights against its perpetrators. The Category I information had to be classified as material facts of that infringement (recitals 28 and 29 of the contested decision).
34 It followed, according to recital 30 of the contested decision, that, taking into consideration its general characteristics, the Category I 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 27 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 12 and 13 above.
35 Contrary to what is claimed by the applicants, no error was made in those findings.
36 As regards the Category I information, it cannot be accepted that the identity of the applicants’ customers constitutes information which is known to a limited number of persons.
37 In that regard, first, since the applicants themselves provided their competitors with a list of their customers as part of the cartel arrangements, the publication at issue will merely provide their customers with the opportunity to learn the identity of the applicants’ 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.
38 It is moreover to be doubted that the drawing up of a list of the models for which the applicants 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 the 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 as regards the identity of carglass suppliers that that information cannot be classified as confidential.
39 It must finally be stated, in line with the conclusion in recital 29 of the contested decision, that the names of the applicants’ customers are mentioned as part of the description of the infringement, which consisted in the concerted allocation of contracts concerning the supply of carglass pieces and/or car sets to the principal car manufacturers in the EEA. Consequently, first, the identity of the customers concerned was the subject of discussion by competitors, which rules out the possibility of it being held that the related information was known to a limited number of persons. Second, such a description is made as part of a narrative account, the structure of which stems from the need to give an account of the infringing conduct and which cannot therefore be treated as the equivalent of a report which describes, in a consolidated, systematic and detailed way, customer relations within the industry concerned.
40 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). The applicants’ arguments that the mere possibility that the information concerned might be commercially important is sufficient to render it confidential cannot therefore be accepted. In those circumstances, it must be held that the Category I information is historical, since it dates from more than five years prior to the date of publication of the contested decision. Since the applicants have not submitted any argument to demonstrate that that information still constituted an essential element of their commercial position or that of the third parties concerned, their reasoning cannot be accepted.
41 In that regard, the Court must also reject the applicants’ complaint that the contested decision is vitiated by an inadequate statement of reasons because the Hearing Officer did not specifically rule on the argument based on paragraph 28 of the order of 19 June 1996 in NMH Stahlwerke and Others v Commission (T‑134/94, T‑136/94 to T‑138/94, T‑141/94, T‑145/94, T‑147/94, T‑148/94, T‑151/94, T‑156/94 and T‑157/94, ECR, EU:T:1996:85), where the Court granted confidential treatment to documents contained in an investigation file on the ground that it could not be ruled out that the names of some customers to be found in those documents might still have a commercial importance, notwithstanding that the information was historical. Since the Hearing Officer set out clearly his assessment of the facts of this case in recitals 25 to 27 of the contested decision, the reasons stated in the decision meet the requisite legal standard.
42 To the extent that, in the light of the foregoing findings, the arguments concerning an alleged harm caused by publication of the Category I information can be regarded as now being of any relevance, those arguments are all also unfounded. In particular, contrary to what is claimed by the applicants, the information whose publication they seek to prevent does not provide examples of agreements between supplier and customer, but rather unlawful agreements entered into by competitors as part of an infringement of Article 101 TFEU which took place before 2003. Consequently, the argument that its publication would give to other customers of the applicants the possibility of exploiting it in order to extract unduly favourable contract terms is not only based on a mistaken premise but also purely hypothetical. Further, if the publication of that information might encourage the applicants’ competitors who did not take part in the infringement to behave more competitively in order to attract the applicants’ customers, that is no more than the result of the normal operation of competition and cannot be classified as harm for the purposes of the rules governing the obligation of professional secrecy. The converse possibility, that a competitor of the applicants might decide that it has no real interest in behaving in that way, is also of no consequence, since each operator is free to adapt intelligently to the conditions of the market and, on any view of the matter, that does not cause ‘harm’ to the applicants.
43 The alleged harm due to the loss of customers or the exposure to legal proceedings seeking damages is, to the extent that it were to materialise, no more than the indirect consequence of the applicants’ participation in an infringement of Article 101 TFEU and cannot therefore be deemed to be worthy of protection. In that context, the Court must also reject the argument that the public interest does not require the publication of the information at issue, because the information already published is more than enough to enable third parties to understand the reasons behind the Commission’s action and to bring any legal proceedings for damages. To the extent that, as follows from what is stated above, the intended publication respects the obligation of professional secrecy, the interest of an undertaking on which the Commission has imposed a fine for an infringement of competition law in the non-disclosure to the public of the details of the unlawful conduct imputed to it is not worthy of any special protection. The public interest in being as fully informed as possible of the reasons behind any action by the Commission; the interest of economic operators to know what kind of conduct is liable to expose them to penalties; the interest of persons harmed by the infringement to know the details of the infringement in order to be able to assert, when necessary, their rights against the undertakings penalised; and the option open to the undertaking under investigation to call for judicial review of a decision, confer on the Commission the choice of publishing a version of its decision which goes even beyond the minimum required by Article 30 of Regulation No 1/2003 (see, to that effect, the judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 27 above, EU:T:2006:136, paragraphs 78 and 79). Last, as will be examined in relation to the second and third pleas in law (see paragraphs 65 to 73 below), the applicants’ status as applicants for leniency does not in any way affect those findings, and consequently the arguments based on that fact must be rejected for the same reasons.
44 It follows from those findings that the Hearing Officer stated reasons for his decision to the requisite legal standard and that he did not err in taking the view that the Category I information was not confidential.
45 That said, the applicants raise, as part of this plea in law, complaints as to the infringement of the rules governing protection of the identity of the individual and as to the public interest pursued by the Commission’s leniency programme. Since those complaints are of independent significance, their analysis must be separate from that in the foregoing findings.
46 Accordingly, as regards the complaint that any reference by name to the customers of the applicants is liable to permit the identification of the individual responsible for each customer within the applicants’ administrative structure, the Court must reject at the outset the Commission’s argument that the applicants are not entitled to raise arguments based on the interest of their employees. Article 8 of Decision 2011/695 does not provide for any such limitation as regard the administrative procedure, and consequently the applicants are entitled to challenge the lawfulness of the findings of the Hearing Officer in that regard.
47 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. Equally inevitably, 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 applicants cannot request that the references to their 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. On the other hand, 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 applicants 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 result from all names being omitted from the published version of the carglass decision.
48 As regards the applicants’ argument relating to the public interest pursued by the Commission’s leniency programme, that must also be rejected.
49 In particular, this case does not concern a challenge to a refusal of access to documents relating to competition proceedings, which was at the heart of the case which gave rise to the judgment of 14 June 2011 in Pfleiderer (C‑360/09, ECR, EU:C:2011:389), but concerns rather the Commission’s intended publication of certain information contained in documents or statements submitted to it voluntarily by the applicants, in order to qualify for the leniency programme.
50 As part of this complaint, the applicants claim, in essence, that the publication of the information which they communicated voluntarily in the course of the investigation in order to qualify for the leniency programme would undermine the purpose of the Commission’s investigations.
51 The applicants do not invoke any rule of law which the Commission has allegedly infringed solely by reason of the fact that the intended publication of information supplied as part of a leniency programme might have an effect on the implementation of that programme with regard to future investigations. Further, that particular argument involves the public interest in being informed as fully as possible of the reasons behind any action of the Commission, the interest of economic operators in being informed of conduct which might render them liable to penalties and, last, the Commission’s interest in maintaining the effectiveness of its leniency programme. Yet those specific interests are not interests peculiar to the applicants, and consequently it is for the Commission alone to weigh, in the circumstances of this case, the effectiveness of the leniency programme, on the one hand, and the interest of the public and economic operators to be informed of the content of the Commission’s decision and to bring proceedings to protect their rights, on the other.
52 That conclusion cannot be called into question by the applicants’ argument that the information for which they sought confidential treatment is not essential to the understanding of the operative part of the carglass decision and is therefore not covered by the obligation to publish imposed on the Commission by Article 30(2) of Regulation No 1/2003. There is no need to assess whether that is the case; suffice it to state that it is not the aim of that provision to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is fuller than the minimum necessary and also to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy (judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 27 above, EU:T:2006:136, paragraph 79).
53 The applicants’ argument that the Hearing Officer did not take sufficient account of their interest as applicants for leniency as part of a weighing of interests in favour of and against the disclosure of the Category I information must be rejected. It is clear from the foregoing analysis that the information concerned cannot be regarded as being known to a limited number of persons and that it is historical, and consequently a weighing of interests in the sense of the case-law cited in paragraph 27 above serves no purpose. In so far as that argument can be regarded as relating to the rights which the applicants claim from the 2006 Leniency Notice and the earlier version of that notice, namely the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002, C 45, p. 3, ‘the 2002 Leniency Notice’), it will be examined in relation to the second, third and fourth pleas in law.
54 The sixth plea in law must therefore be rejected.
The first plea in law: infringement of Article 8 of Decision 2011/695
55 The applicants claim that, by refusing, in recitals 14, 17 and 19 of the contested decision, to examine whether the intended publication was in compliance with the principles of the protection of legitimate expectations and equal treatment, the Hearing Officer failed to exercise the powers conferred on him by Article 8 of Decision 2011/695. In any event, since the Hearing Officer explicitly denied that he had such powers, the contested decision is vitiated by a failure to state sufficient reasons with regard to those principles.
56 In that regard, it must first be observed that, as is clear from the analysis carried out in relation to the sixth plea in law, the contested decision is not vitiated by illegality as regards its findings relating to the confidentiality of the information at issue.
57 It is clear, next, from recitals 14, 17 and19 of the contested decision that the Hearing Officer made a distinction between the applicants’ arguments based on the confidentiality of the information at issue, on the one hand, and their arguments based on breach of principles which are not linked to the obligation of professional secrecy, such as the principle of equal treatment and the principle of the protection of legitimate expectations, on the other.
58 In that regard, the Hearing Officer correctly concluded, in recital 14 of the contested decision, that the arguments concerned related by definition to information which could be published taking into account the limits imposed on the action of the Commission by Article 30(2) of Regulation No 1/2003 and Article 8 of Decision 2011/695, namely information which was not covered as such by the obligation of professional secrecy. It must be recalled that, as is stated in Article 8(1) of Decision 2011/695, the procedure which may give rise to the intervention of a hearing officer is triggered ‘[w]here the Commission intends to disclose information which may constitute a business secret or other confidential information’. In that context, the Hearing Officer was also correct to emphasise the discretion enjoyed by the Commission when that institution identified non‑confidential information which might be published.
59 It is important moreover to note that, as is clear from Article 8(2) of Decision 2011/695, the Hearing Officer must specify, in his decision, the date after which the information at issue ruled not to be confidential will be disclosed, that date not to be more than one week after notification. It follows from that provision that the intervention of the Hearing Officer consists in applying the rules which protect undertakings by reason of the confidentiality of the information concerned. The publication by DG Competition of information covered by the obligation of professional secrecy definitively nullifies the specific protection granted to that kind of information. The intervention of the Hearing Officer serves therefore to add a phase of supplementary review by a body independent of DG Competition. That body is, in addition, obliged to defer the date when its decision takes effect, thereby giving the undertaking concerned the opportunity to bring a case before the judge responsible for hearing applications for interim relief in order to have the decision suspended when the relevant conditions are met. Consequently, a distinction must be made between the application of legal rules relating to the confidentiality of the information as such, on the one hand, and the legal rules relied on with the objective of obtaining confidential treatment of the information irrespective of whether that information is inherently confidential, on the other. In that regard, as contended by the Commission, even if the publication of an item of information not covered by the obligation of professional secrecy might constitute an infringement of a rule falling within the second of the two abovementioned categories, that does not render the protection conferred by the rules relating to professional secrecy illusory. Such an infringement, if it were to be established, can give rise to adequate remedies, such as damages, if the conditions governing non‑contractual liability of the Union are met. Accordingly, an analysis of the substance of the arguments relating to that category of rules is outside the objectives pursued by the terms of reference conferred on a hearing officer under Article 8 of Decision 2011/695 (judgment of 28 January 2015 in Evonik Degussa v Commission, T‑341/12, ECR, EU:T:2015:51, paragraph 43), and consequently the findings in recitals 14, 17 and 19 are not vitiated by illegality.
60 In any event, finally, in recitals 12, 13 and 16 of the contested decision, the Hearing Officer stated that the applicants could not rely on any legitimate expectation or other legitimate interest to prevent the Commission from publishing non‑confidential information, even where that information was not part of the main content of the decision finding the infringement. Further, the Hearing Officer stated, in recital 18 of the contested decision, that the Commission had agreed to eliminate any reference which might identify the source of the statements produced within the leniency procedure or documents submitted as part of that procedure, in order to take due account of the applicants’ status as undertakings which had cooperated. That being the case, it is clear that the Hearing Officer made an assessment of the arguments related to breach of the principles of protection of legitimate expectations and equal treatment, and consequently the contested decision is not, in any event, vitiated by an inadequate statement of reasons.
61 Consequently, the first plea in law must be rejected.
The second and third pleas in law: breach of the principle of the protection of legitimate expectations, the principle of equal treatment and the obligation to state reasons
62 The applicants claim that both the 2006 Leniency Notice and the 2002 Leniency Notice contain provisions which create a legitimate expectation, for all undertakings falling within their scope, that information voluntarily provided will remain confidential, as far as possible, even at the stage of publication of the Commission’s decision. Further, those notices give precise assurances as to the fact that published information will have the result that undertakings which cooperated, such as the applicants, will be less exposed to the risk of civil actions being brought against them than undertakings which did not cooperate. That expectation, which is also based on Article 4(2) of Regulation No 1049/2001, covers not only documents submitted as part of a leniency procedure but also the information contained in those documents. The contested decision authorises publication of the identity of the applicants’ customers, that is to say, information given to the Commission under the leniency programme. That publication, which is not necessary for the purposes of applying Article 101 TFEU, is therefore in breach of the applicants’ legitimate expectations and puts them at a disadvantage as compared with undertakings which did not cooperate. That gives rise to an infringement of the provisions relating to the protection of professional secrecy.
63 The applicants also maintain that, as the sole applicants for leniency, their situation is different from that of the other addressees of the carglass decision. In relation to publication of the identity of the customers concerned, the contested decision allows the Commission to adopt a common approach with regard to all the addressees of the carglass decision. That disproportionately harms the applicants, since the references to the car manufacturers concerned by the cartel are mostly to their own customers. Those circumstances also amount to a breach of the obligation of professional secrecy, the findings of the Hearing Officer being in addition vitiated by a manifest error of assessment and failure to state adequate reasons.
64 Those arguments cannot be accepted.
65 It must first be observed that the findings set out in paragraph 59 above are without prejudice to the powers of the Courts of the European Union to rule on pleas in law claiming a breach of the principle of protection of legitimate expectations or of the principle of equal treatment.
66 In that regard, first, the 2002 and 2006 Leniency Notices contain no provision which supports the applicants’ arguments. In particular, it is clear from points 3 to 7 of the 2002 Leniency Notice and from points 3 to 5 of the 2006 Leniency Notice that the sole aim of those notices is to establish the conditions under which an undertaking may obtain either immunity from a fine or a reduction in the amount of the fine. As contended by the Commission, the notices concerned do not provide for any other advantage which an undertaking can claim in exchange for its cooperation. The rules stated in points 8 to 27 of the 2002 Leniency Notice and in points 8 to 30 of the 2006 Leniency Notice concern exclusively the amount of fines.
67 That finding is expressly confirmed in point 31 of the 2002 Leniency Notice and in point 39 of the 2006 Leniency Notice. The wording in those two points is identical: 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.
68 Admittedly, according to point 6 of the 2006 Leniency Notice, ‘Potential leniency applicants might be dissuaded from cooperating with the Commission under this Notice if this could impair their position in civil proceedings, as compared to companies who do not cooperate’.
69 However, that sentence must be read in context and particularly in the light of the sentences which precede it, namely:
‘In addition to submitting pre-existing documents, undertakings may provide the Commission with voluntary presentations of their knowledge of a cartel and their role therein prepared specially to be submitted under this leniency programme. These initiatives have proved to be useful for the effective investigation and termination of cartel infringements and they should not be discouraged by discovery orders issued in civil litigation.’
70 Consequently, the sentence quoted in paragraph 68 above means that an undertaking should not be placed at a disadvantage with regard to civil litigation which may be brought against them solely because it voluntarily submitted in writing to the Commission a leniency statement, which could be the subject of a court decision ordering discovery. In the context of that desire to provide quite specific protection for leniency statements, the Commission imposed on itself, in points 31 to 35 of the 2006 Leniency Notice, specific rules governing the form of those statements, access to them and their use. Yet those rules concern exclusively the documents and statements, written or recorded, received in accordance with the 2002 or 2006 Leniency Notices, the disclosure of which is in general considered by the Commission to undermine the protection of the purpose of inspections and investigations within the meaning of Article 4 of Regulation No 1049/2001, as stated in points 32 and 40 of those notices. It is therefore neither the intention nor the effect of those rules that the Commission should be prevented from publishing, in its decision bringing the administrative procedure to an end, the information relating to the description of the infringement which was submitted to it as part of the leniency programme, and those rules give rise to no legitimate expectation in that regard.
71 Accordingly, such publication, made pursuant to Article 30 of Regulation No 1/2003 and, as is apparent from the examination of the sixth plea in law, with due regard for the obligation of professional secrecy, does not frustrate the legitimate expectation which the applicants can claim under the 2002 and 2006 Leniency Notices, which concerns the calculation of the amount of the fine and the treatment of the documents and statements specifically referred to.
72 Correspondingly, for the reasons set out in paragraph 29 above, Article 4 of Regulation No 1049/2001 concerns access to the documents which are part of the investigation file, but is not concerned with the decision adopted by the Commission at the end of the administrative procedure, the content of that decision being defined by Article 30 of Regulation No 1/2003. Accordingly, Article 4 of Regulation No 1049/2001 cannot give rise to any legitimate expectation on the part of the applicants as to the content of the public version of the carglass decision.
73 Second, as contended by the Commission, the aim of the 2002 and 2006 Leniency Notices is to give effect to a policy of differentiating between the addressees of a decision finding an infringement of Article 101 TFEU according to the degree to which each of them cooperates, solely with regard to amount of the fine. Since, to follow the analysis above, the notices concerned are not intended to affect the consequences under civil law of participation by the undertakings which apply for leniency in an infringement, the applicants’ argument that they, in terms of those consequences, are in a situation which differs from that of the other addressees of the carglass decision because of their status as applicants for leniency (see paragraph 63 above) cannot be accepted. Consequently, the argument that the Commission should have adapted the published references relating to the customers of each addressee of the carglass decision according to the degree to which each of them cooperated is, in addition to being impracticable, based on a mistaken premise. Taking into consideration the fact that, as stated by the Hearing Officer in recital 18 of the contested decision, the Commission had agreed to eliminate any reference which might identify the source of the information concerning each matter of fact on which the carglass decision was based, there is, in any event, no question of a breach of the principle of equal treatment or of the obligation to state reasons.
74 The second and third pleas in law must therefore be rejected.
The fourth plea in law: infringement of the principle of good administration
75 The applicants claim that the intended publication of the identity of customers amounts to a departure from established practice adopted by the Commission in relation to publication, both before and after the carglass decision. In accordance with that practice, the names of customers are to be redacted on the ground that that is confidential information. That departure is arbitrary and unexpected, and consequently it constitutes a breach of the principle of good administration.
76 In that regard, it must be recalled that 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 24 to 29 above, versions of its decisions that are fuller than the minimum required by Article 30 of Regulation No 1/2003, encouraging the actions of persons harmed by the infringement, that being a component of competition policy (see, to that effect, judgment in Bank Austria Creditanstalt v Commission, cited in paragraph 27 above, EU:T:2006:136, paragraphs 78 and 79). 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 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 sixth plea in law, capable of affecting the lawfulness of the contested decision, from the perspective of the principle of good administration.
77 The fourth plea in law must therefore be rejected.
The fifth plea in law: infringement of the provisions relating to public access to documents of the institutions
78 The applicants claim that, to the extent that the Commission is required to refuse access to documents in accordance with Article 4(1) and (2) of Regulation No 1049/2001, it must redact, in the published version of its decision, information derived from those documents. The effect of the contested decision is to permit the Commission to publish information undermining the protection of the purpose of its investigation and the integrity of the individual, though there is no overriding public interest justifying such publication. Both the 2002 and the 2006 Leniency Notices provide specific assurances regarding more favourable treatment, to the extent possible, of applicants for leniency, as compared with the other addressees of the Commission’s decision. Furthermore, the intended publication infringes the rules established in the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 TFEU and 102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7).
79 In that regard, as regards the argument concerning an infringement of Regulation No 1049/2001, 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 29 above, those rules are not applicable to publication of the decision which the Commission adopted on the conclusion of that investigation. The same is true of the notice on the rules for access to the Commission file in competition cases. In accordance with paragraphs 1 and 3 of that notice, it relates exclusively to access to documents in a cartel investigation file under Article 27(1) and (2) of Regulation No 1/2003 and Article 15(1) of Regulation No 773/2004, granted to the persons to whom a statement of objection was addressed. Consequently, those arguments must be rejected.
80 As regards the argument concerning the alleged obligation to provide the applicants with more favourable treatment than that granted to the other addressees of the carglass decision with respect to the publication of information submitted under the leniency programme, that argument has already been rejected in paragraphs 64 to 73 above.
81 In the light of the foregoing analysis, the fifth plea in law must be rejected and consequently the action must be dismissed in its entirety.
Costs
82 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.
83 Since the applicants have been unsuccessful, they must be ordered to pay the costs of this case, as applied for by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders AGC Glass Europe SA, AGC Automotive Europe SA, AGC France SAS, AGC Flat Glass Italia Srl, AGC Glass UK Ltd and AGC Glass Germany GmbH to pay the costs.
Papasavvas | Forwood | Bieliūnas |
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]