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Language of document : ECLI:EU:C:2016:587

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 21 July 2016 (1)

Case C‑162/15 P

Evonik Degussa GmbH

Commission

(Appeal — Implementation of Articles 101 TFEU and 102 TFEU —Regulation (EC) No 1/2003 — Publication of Commission decisions — Article 30 — Terms of reference of the hearing officer in competition proceedings — Decision 2011/695/EU — Article 8 — Protection of professional secrecy — Article 339 TFEU — Concept of ‘business secrets or other confidential information’ — Information originating in the statement made by an undertaking with a view to obtaining leniency — Rejection of request for confidential treatment — Legitimate expectations)

I – Introduction

1. By the present appeal, Evonik Degussa GmbH asks the Court to set aside the judgment of 28 January 2015 in Evonik Degussa v Commission, (2) whereby the General Court of the European Union dismissed its action for annulment of the Decision C(2012) 3534 of the European Commission (3) rejecting a request for confidential treatment submitted by the appellant.

2. The aspects of the judgment under appeal to which the appellant takes exception concern, in particular, the problem — not hitherto encountered in the case-law of the Court (4) — of the extent of the protection to be afforded to information taken from a statement made with a view to obtaining leniency, in the context of the publication of Commission decisions relating to the application of Article 101 TFEU. (5)

II – Legal framework

3. Article 30 of Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU], (6) entitled ‘Publication of decisions’, provides as follows:

‘1. The Commission shall publish the decisions, which it takes pursuant to Articles 7 to 10, 23 and 24.

2. The publication shall state the names of the parties and the main content of the decision, including any penalties imposed. It shall have regard to the legitimate interest of undertakings in the protection of their business secrets.’

4. Article 8 of Decision 2011/695/EU on the function and terms of reference of the hearing officer in certain competition proceedings, (7) entitled ‘Business secrets and other confidential information’, provides as follows:

‘1. Where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate-General for Competition. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments.

2. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. If the hearing officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification.

3. Paragraphs 1 and 2 shall apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union.

…’

III – Background to the dispute

5. The background to the dispute, as stated in the judgment under appeal, may be described as follows.

6. On 3 May 2006, the Commission adopted Decision C(2006) 1766 final relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.620 — Hydrogen Peroxide and Perborate; ‘the PHP Decision’).

7. In the PHP Decision, the Commission found, in particular, that the appellant had participated in an infringement of Article 81 EC on the territory of the European Economic Area (EEA), with 16 other companies active in the hydrogen peroxide and perborate sector. The appellant, in application of the Commission notice on immunity from fines and reduction of fines in cartel cases (‘the 2002 Leniency Notice’), (8) was granted complete immunity from any fine.

8. In 2007, a first non-confidential version of the PHP Decision was published on the Commission’s website.

9. In a letter to the appellant dated 28 November 2011, the Commission informed the appellant that it intended to publish a new, more complete, non-confidential version of the PHP Decision, setting out the entire content of that decision apart from the confidential information. On that occasion, the Commission asked the appellant to identify the information in the PHP Decision in respect of which it proposed to request confidential treatment.

10. Being of the view that that more complete non-confidential version contained confidential information or business secrets, the appellant informed the Commission, in a letter of 23 December 2011, that it objected to the proposed publication. In support of its objection, the appellant claimed, more particularly, that that non-confidential version contained a significant amount of information which it had communicated to the Commission under the leniency programme, and also the names of a number of its collaborators and information concerning its business relations. In the appellant’s contention, the proposed publication would thus fail to have regard, in particular, to the principles of protection of legitimate expectations and equal treatment and would be liable to have an adverse effect on the Commission’s investigations.

11. By letter of 15 March 2012, the Commission informed the appellant that it agreed to delete from the new non-confidential version for publication all the information that would directly or indirectly enable the source of the information communicated pursuant to the 2002 Leniency Notice, and likewise the names of the appellant’s collaborators, to be identified. On the other hand, the Commission considered that there was no reason for the other information in respect of which the appellant had requested confidential treatment to benefit from confidentiality.

12. Taking advantage of the possibility provided for in Decision 2011/695, the appellant requested the hearing officer to omit from the non-confidential version for publication all the information which it had supplied pursuant to the 2002 Leniency Notice.

IV – The decision at issue

13. By the decision at issue, the hearing officer, on behalf of the Commission, rejected the appellant’s request.

14. The hearing officer first of all emphasised the limits of his terms of reference, which enabled him only to determine whether information must be regarded as confidential and not to make good an alleged breach of the appellant’s legitimate expectations.

15. The hearing officer further noted that the appellant’s only reason for objecting to the publication of a new, more complete version of the PHP Decision was that it contained information supplied pursuant to the 2002 Leniency Notice and that the disclosure of such information to third parties was likely to be detrimental to the appellant in the context of any actions for damages brought before the national courts.

16. In the hearing officer’s view, the appellant had not shown that the publication of that information was likely to cause it serious harm. The interest of which an undertaking which has infringed competition law has in the details of its unlawful conduct not being disclosed to the public does not in any event merit special protection. The hearing officer observed, on that point, that actions for damages before the national courts formed an integral part of EU competition policy and that, accordingly, the appellant could not claim a legitimate interest in being protected against such actions.

17. The hearing officer also considered that he was not competent to answer the appellant’s argument that the disclosure at issue would harm the leniency programme, as such a question was outside the scope of his terms of reference.

18. Last, the hearing officer stated that, since his terms of reference were limited to requests for confidentiality, he was not competent to give a ruling on the alleged breach of the principle of equal treatment resulting from the fact that the proposed publication would have the effect of placing the appellant in a less favourable position than other addressees of the PHP Decision who had not cooperated with the Commission.

V – Procedure before the General Court and judgment under appeal

19. By application lodged at the Registry of the General Court on 2 August 2012, the appellant brought an action for annulment of the decision at issue.

20. In the context of the action, the appellant lodged an application for interim measures, seeing suspension of the operation of the decision at issue. By order of 16 November 2012 in Evonik Degussa v Commission (T‑341/12 R, EU:T:2012:604), the President of the General Court granted that application.

21. In support of the action, the appellant raised, in essence, five pleas in law. The first four pleas alleged, respectively, infringement of Article 8 of Decision 2011/695 (first plea); breach of the obligation to state reasons (second plea); breach of the professional secrecy protected by Article 339 TFEU (third plea); and breach of the principles of legitimate expectations, legal certainty and equal treatment (fourth plea). (9)

22. By the judgment under appeal, the General Court dismissed the action in its entirety and ordered the appellant to pay the costs.

VI – Procedure before the Court and forms of order sought

23. By its appeal, Evonik Degussa claims that the Court should set aside the judgment under appeal, annul the judgment at issue and order the Commission to pay the costs. The Commission contends that the appeal should be dismissed and that the appellant should be ordered to pay the costs.

24. In the context of the appeal, the appellant lodged an application for interim measures, asking the Court to suspend the operation of the decision at issue. By order of 2 March 2016 in Evonik Degussa v Commission (C‑162/15 P-R, EU:C:2016:142), the Vice-President of the Court granted that application.

VII – Assessment of the appeal

25. In support of its appeal, the appellant puts forward three pleas in law, alleging, first, infringement of Art 8(2) and (3) of Decision 2011/695, relating to the competence of the hearing officer; second, infringement of Article 339 TFEU and Article 30 of Regulation No 1/2003 concerning the allegedly confidential nature of the information at issue; and, third, breach of the principles of legal certainty and the protection of legitimate expectations.

A – First plea

26. By its first plea, the appellant maintains that the General Court infringed Article 8(2) and (3) of Decision 2011/695 by holding, in paragraphs 31 to 44 of the judgment under appeal, that the hearing officer was not competent to examine the objections based on the principles of protection of legitimate expectations and equal treatment.

1. The judgment under appeal

27. Before the General Court, the appellant raised a plea alleging infringement of Article 8 of Decision 2011/695, maintaining that the hearing officer had improperly restricted the scope of his control. The General Court rejected that plea as unfounded, in paragraphs 23 to 44 of the judgment under appeal.

28. In paragraph 26 of the judgment under appeal, the General Court stated that the appellant took issue with the hearing officer for having declined to answer the separate arguments relating, in particular, to breach of the principles of legitimate expectations and equal treatment.

29. In paragraph 33 of the judgment under appeal, the General Court stated that, according to the case-law on the third paragraph of Article 9 of Decision 2001/462/EC, ECSC, (10) which continues to be relevant for Article 8 of Decision 2011/695, the hearing officer is required not only to determine whether the version intended for publication contains business secrets or other confidential information enjoying similar protection, but also to check whether that version contains other information which cannot be disclosed to the public either on the basis of rules of EU law affording such information specific protection or because it constitutes information of the kind covered by the obligation of professional secrecy. (11)

30. In paragraph 42 of the judgment under appeal, the General Court held that, in this instance, the principles of law on which the appellant relied were not such rules intended to afford specific protection against disclosure. According to the General Court, unlike, in particular, the rules on the treatment of personal data or the exceptions to the right of public access to documents, (12) such principles are not specifically intended to protect the confidentiality of information or documents. As the objections based on those principles thus fall outside the framework of the task entrusted to the hearing officer under Article 8 of Directive 2011/695 (paragraph 43 of the judgment under appeal), the hearing officer was correct to decline competence (paragraph 44 of the judgment under appeal).

31. Subsequently, the General Court rejected the appellant’s argument that none of the Commission’s services had examined the objections in question, stating that the services of the Directorate-General ‘Competition’ had adopted a reasoned position on those objections, in letters set to the appellant on 28 November 2011 and 15 March 2012, before the matter had come before the hearing officer (paragraphs 45 to 49 of the judgment under appeal).

32. The General Court held in that regard that, in order to ensure effective judicial protection for the appellant, it was appropriate to look at the decision at issue in the context which had led to its adoption and, accordingly, to consider that that decision included implicitly, but necessarily, the positions adopted by the Commission and expressed in the letters of 28 November 2011 and 15 March 2012, in so far as those positions concerned aspects not falling within the terms of reference of the hearing officer (paragraphs 60 and 132 of the judgment under appeal).

2. Arguments of the parties

33. In its appeal, the appellant claims that the hearing officer is the organ of the Commission which takes the final decision concerning the publication of information which an affected undertaking regards as confidential. The hearing officer should thus be competent to examine all the grounds that may stand in the way of publication. The appellant maintains that, although the hearing officer is competent only to verify the confidential nature of the information, he ought nonetheless to have taken all the relevant requirements into account in his decision, including fundamental rights and the general principles of EU law, which form part of the legitimate interests that may stand in the way of publication.

34. The appellant thus maintains that the reasoning set out in paragraphs 42 to 44 of the judgment under appeal is based on an error of law.

35. In the appellant’s submission, the General Court ought to have found that the hearing officer had not examined the objections which the appellant based on the principles of legitimate expectations and equal treatment and, consequently, ought to have annulled the decision at issue on that ground. In holding, in paragraphs 58 to 60 and 132 to 133 of the judgment under appeal, that the decision at issue ‘by implication, but necessarily’ included the positions taken by the Commission in the correspondence previously exchanged with the appellant, the General Court distorted the content of that decision.

36. The Commission disputes the appellant’s arguments and refers, essentially, to the relevant grounds of the judgment under appeal.

3. Assessment

37. The first plea consists, in essence, of two parts.

38. The first part relates to the extent of the hearing officer’s powers under Article 8(2) and (3) of Decision 2011/695 (paragraphs 42 to 44 of the judgment under appeal). The second part concerns the General Court’s rejection of the complaint alleging failure to state reasons for the decision at issue (paragraphs 60 and 67 of that judgment).

a) First part

i) Preliminary observations

39. Under 339 TFEU, the members of the institutions of the Union and the officials and other servants of the Union are required not to disclose information which by its nature is covered by the obligation of professional secrecy. For the purposes of the application of Articles 101 TFEU and 102 TFEU, that obligation is reiterated in Article 28 of Regulation No 1/2003 and Article 16 of Regulation (EC) No 773/2004 (13) and is to apply, according to the latter measure, to ‘business secrets or other confidential information’.

40. The Court’s case-law enables the outlines of those concepts to be defined.

41. It follows, in particular, from that case-law that the right to protection of business secrets is a general principle of EU law. (14) The field to which that applies is not restricted to business secrets in the strict sense, that is to say, to commercially sensitive information, (15) but also encompasses other confidential information. (16)

42. In addition, the confidential nature of information may result as much from its intrinsically sensitive content, as is the case of business information, as from the combination of the content and the circumstances in which the information was communicated to the public body.

43. The latter hypothesis relates to information communicated to the Commission in circumstances which impose a duty of confidentiality, in particular information provided voluntarily by a person having a legitimate desire to remain anonymous, such as an informant or a complainant, (17) and also other information communicated to the Commission on condition that it remains confidential. (18)

44. The Commission took that case-law into consideration in its Notice on access to the file, by distinguishing two categories of information to which access may be restricted, namely the category relating to business secrets, consisting of information about an undertaking’s business activity, disclosure of which could result in serious harm to that undertaking, and the category relating to other confidential information, consisting of information ‘other than business secrets, which may be [regarded] as confidential, insofar as its disclosure would significantly harm a person or undertaking’. Last, confidential information may consist of information protected in the public interest, such as military secrets, and information protected by the private interest, such as personal data. (19)

45. The General Court, in turn, has interpreted the concept of ‘information covered by business secrecy’ by identifying three criteria. According to that Court, in order to be classified as such, it is necessary, first, that the information is known only to a limited number of persons; second, that its disclosure is liable to cause serious harm to the person who has provided it or to third parties; and, third, that the interests liable to be harmed by disclosure must be worthy of protection. (20) Thus far, the Court of Justice has not had the opportunity to rule on those criteria. (21)

ii) The extent of the hearing officer’s control

46. The role of the hearing officer within the Commission, which has developed significantly since the position was created, consists in ensuring that procedural rights are observed in competition proceedings. It was considered necessary to entrust that task to a person who is independent of the services of the Directorate-General for Competition. (22)

47. The powers of the hearing officer are defined in Decision 2011/695.

48. Articles 7 and 8 of that decision attribute to the hearing officer certain powers in relation to requests for confidential treatment. The hearing officer takes a decision on such requests in the context of access to the file and where information is to be disclosed by the Commission.

49. In the latter hypothesis, Article 8(1) and (2) of Decision 2011/695 states that the person concerned must be informed by the Commission in advance and, where the information in question may constitute business secrets or other confidential information, he may object to its disclosure by referring the matter to the hearing officer. Where the hearing officer considers that the information in question may be disclosed, either because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure, he is to take a reasoned decision specifying the date after which the information will be disclosed, which may not be less than one week from the date of notification.

50. In accordance with Article 8(3) of Decision 2011/695, those provisions are to apply mutatis mutandis to the publication of Commission decisions.

iii) Assessment of the findings of the General Court

51. In the present case, the appellant maintains that, pursuant to Article 8(1) and (2) of Decision 2011/695, the hearing officer is competent to take a decision on all objections to publication, including those based on general principles of law.

52. I would observe that, if the appellant’s assertion must be taken to mean that the hearing officer’s powers cover objections other than those connected with the confidentiality of information, it is not corroborated by either the wording or the structure of Article 8 of Decision 2011/695.

53. As regards the wording of those provisions, the application of Article 8(1) and (2) of Decision 2011/695 is clearly confined to the situation in which the information to be disclosed ‘may constitute a business secret or other confidential information of any undertaking or person’.

54. As regards the structure of those provisions, I note that they form part of the wider role of the hearing officer of ensuring observance of the procedural rights of the parties and other interested parties in competition proceedings. On account of his independence, the hearing officer is well placed to settle a disagreement between the person concerned and the Commission’s services as to the confidential nature of information, where appropriate by weighing up the opposing interests.

55. To my mind, those considerations apply only where the hearing officer is dealing with requests for confidential treatment.

56. While it is possible to envisage other objections to the publication of a decision, based, for example, on infringement of intellectual property rights or image rights, they would not be connected with the conduct of the competition proceedings and examination of such objections would therefore not be consistent with the role of the hearing officer.

57. The same applies, in this case, to the objections raised by the appellant on the basis of general principles of law, independently of its request for confidentiality.

58. As is clear from paragraph 26 of the judgment under appeal, by the first plea in the application at first instance, the appellant took issue with the hearing officer for having declined to answer three separate arguments alleging, in the first place, breach of the ‘purpose’ principle set out in Article 28(1) of Regulation No 1/2003 (that argument is not taken up again in the appeal); in the second place, breach of the appellant’s legitimate expectation that the information at issue would not be published; and, in the third place, breach of the principle of equal treatment resulting from the fact that that publication would have the effect of putting the appellant in a less favourable situation than other addressees of the PHP Decision.

59. It is apparent from the argument submitted by the appellant in the context of its appeal, moreover, that those objections were raised independently of the request for confidential treatment of the information originating from the leniency statements.

60. In so far as the objections in question were formulated independently of the request for confidential treatment, the General Court — was entitled, in my view — to hold, in paragraph 44 of the judgment under appeal, that the hearing officer was not competent to answer them.

61. It should be made clear that the argument raised by the appellant before the hearing officer on the basis of the principles of legitimate expectation and equal treatment may be understood in two different ways.

62. It might be understood as seeking to establish that the information contained in a leniency declaration must be classified as confidential, in the light of the legitimate expectation of the leniency applicant that he will not be placed, in civil actions, in a less favourable situation than other participants in the infringement who chose not to cooperate. The principles of legitimate expectations and equal treatment would thus be relied on, only indirectly, in support of the argument that the information at issue is confidential. It is common ground that the hearing officer examined and rejected that argument in the decision at issue.

63. On the other hand, that argument of the appellant might be understood as seeking to establish that that has been a breach of the principles of legitimate expectation and equal treatment irrespective of whether the information at issue must be classified as confidential. Such a separate argument may be derived from the failure to comply with the requirements relating to the withdrawal of administrative acts or the alteration of the Commission’s previous practice. (23) To my mind, however, those arguments, in so far as they do not rely on the confidential nature of information, do not fall within the competence of the hearing officer.

64. Nor am I convinced by the appellant’s argument that to accept the limitation of the competence of the hearing officer would breach the appellant’s right to judicial protection.

65. I recall that the procedure involving the hearing officer has the effect of suspending the disclosure of information and thus enables the person concerned to bring an action for annulment and an application for interim measures before the General Court, in accordance with the judgment in AKZO Chemie and AKZO Chemie UK v Commission (24).

66. The requirement for such judicial review before disclosure is justified, however, by the fact that disclosure of the confidential information may cause the person concerned to sustain serious and irreparable harm: but such justification applies only in so far as the person concerned relies on the confidential nature of the information and cannot be extended to other objections to publication.

67. Accordingly, I consider that the General Court was correct to hold, in paragraph 44 of the judgment under appeal, that the hearing officer’s powers under Article 8(2) of Decision 2011/695 do not extend to the objections raised by the appellant on the basis of the principles of legitimate expectation and equal treatment.

68. I note, last, that one of the grounds on which the General Court reached that conclusion is ambiguous.

69. The General Court held, in paragraphs 42 and 43 of the judgment under appeal, that the principles of legitimate expectations and equal treatment, on which the appellant relied, were not within the competence of the hearing officer, because, unlike the rules on the treatment of personal data or those governing the right of access to documents, those principles were not ‘rules intended to afford specific protection against disclosure’ and were not ‘specifically intended to protect the confidentiality of information or documents’.

70. The General Court did not make clear what it meant by the reference to rules intended to afford specific protection against disclosure. (25) If that ground of the judgment under appeal had to be taken to mean that the principle of legitimate expectations cannot in any event constitute the basis for the classification of information as confidential, such a ground would to my mind be incorrect in law.

71. Admittedly, as the Commission observes, the request for confidential treatment must be duly substantiated by the person concerned, but, as is clear from the case-law of this Court, (26) such a request may be based on the argument that the information in question was communicated in the legitimate expectation that the Commission would respect its confidential nature. In my view, the requirements related to respect for an individual’s legitimate expectations may in principle justify confidential treatment, independently of the existence of specific rules.

72. However, even if paragraphs 42 and 43 of the judgment under appeal had to be understood in that sense, such an error would not be such as to entail the setting-aside of the judgment under appeal, since its operative part appears to be based on other legal grounds. (27) In fact, on those grounds, the General Court merely found that the hearing officer had been correct to decline competence to answer the ‘separate’ arguments based on the principles of legitimate expectations and equal treatment (paragraphs 26 and 44 of the judgment under appeal).

73. That finding, as such, is well founded in law. In so far as the appellant relied on such arguments independently of its request for confidentiality, their assessment did not fall within the competence of the hearing officer. Consequently, I consider that the finding of the General Court in paragraph 44 of the judgment under appeal must in any event be upheld.

74. Accordingly, I propose that the first part of the first plea should be rejected.

b) Second part

75. By the second part of the first plea, the appellant takes issue with the General Court for having rejected its complaint alleging breach of the obligation to state reasons.

76. The appellant maintains that the General Court was wrong to consider that the positions adopted by the Commission’s services, contained in its letters of 28 November 2011 and 15 March 2012, are part of the statement of reasons on which the decision at issue is based (paragraphs 60 and 132 of the judgment under appeal).

77. I would observe that the finding of the General Court, set out in paragraphs 60 and 132 of the judgment under appeal, that the statement of reasons on which the decision at issue is based must be seen in the context of the previous correspondence with the appellant, cannot as such be criticised.

78. In fact, it has consistently been held that the sufficiency of the statement of reasons on which a decision of an EU institution is based must be assessed with regard not only to its wording but also to its context, where that context is known to the person concerned and enables him to understand the scope of the measure concerning him. (28)

79. Furthermore, in so far as a decision of an EU institution merely confirms the position previously expressed, even by another service, the content of that position may be considered to constitute the relevant context for the reasons on which that decision is based. (29) That approach is also valid where a request is dealt with by two independent administrative authorities. (30)

80. The application of that consideration to the present case is not to my mind irreconcilable with the fact that the hearing officer has an independent role within the Commission. (31)

81. Where two authorities within the Commission adopt the same position to the disclosure of a document and to the extent of confidentiality, all the reasons stated go to make up the relevant context for the purposes of the review of the lawfulness of the final decision.

82. Accordingly, in the present case, the General Court was entitled, when examining the reasons on which the decision at issue is based, to take into account the position expressed by the services of the Directorate-General ‘Competition’ in the previous correspondence with the appellant.

83. In that regard, I note that, as is apparent from paragraph 65 of the judgment under appeal, the decision at issue sets out the reasons why the appellant’s request for confidentiality was rejected. In fact, in setting out the limits of his competence, the hearing officer answered the appellant’s objections, in so far as they were based on the confidentiality of the information in its leniency statement, by stating that such information must not be classified as confidential or as being covered by professional secrecy solely because it was submitted in the context of cooperation with the Commission (recitals 12, 14 and 18 to 21 of the decision at issue).

84. In rejecting in its entirety the appellant’s request for confidential treatment, the hearing officer confirmed the position defined in the Commission’s letters of 28 November 2011 and 15 March 2012, described in paragraphs 47 and 48 of the judgment under appeal. That position is therefore relevant for the purpose of assessing the grounds of the decision at issue.

85. In addition, as regards the position known by the appellant before the matter was referred to the hearing officer, the appellant cannot legitimately maintain that the fact that that position was taken into account by the General Court breached its right to be heard, on the ground that it was unable to challenge the arguments put forward in those letters.

86. In the light of all of those observations, I propose that the second part and, consequently, the first plea in its entirety should be rejected.

B – Second plea

87. By the present plea, which concerns paragraphs 76 to 127 of the judgment under appeal, the appellant maintains, in essence, that by rejecting its argument that the information contained in its leniency statement should be classified as confidential, the General Court infringed Article 339 TFEU and Article 30 of Regulation No 1/2003, and breached its right to protection of its private life.

1. The judgment under appeal

88. In paragraphs 76 to 127 of the judgment under appeal, the General Court examined and rejected the third plea in the application at first instance, which consisted in essence of three parts, alleging, first, breach of the appellant’s business secrets; second, breach of the confidentiality of information communicated in the context of the leniency programme; and, third, breach of the right to protection of private life (paragraph 76 of the judgment under appeal).

89. As regards the first part, the General Court held that, even on the assumption that some of the commercial information might have constituted business secrets, it must in any event be considered to be old, since it dated from five or more years previously and since the appellant had not shown that, in spite of its age, that information still constituted essential elements of its commercial position (paragraphs 84 to 86 of the judgment under appeal).

90. As regards the second part, the General Court considered whether, as the appellant maintained, information must be protected, as business secrets, solely because it had been communicated voluntarily by an undertaking to the Commission with the aim of benefiting from the leniency programme (paragraph 88 of the judgment under appeal).

91. The General Court rejected the argument that the scope of protection against disclosure under Article 4 of Regulation No 1049/2001 was relevant in the present case. If Article 4 of that regulation were to be taken into account as prohibiting the Commission from publishing any information protected by an exception to the right of access to documents, that would have the effect of depriving the Commission of the possibility of publishing even the essential part of its decision, since, in accordance with a presumption laid down by the Court of Justice in the judgment in Commission v EnBW, (32) such an exception protects all the material in the investigation file (paragraphs 91 and 92 of the judgment under appeal).

92. The disclosure of information relating to an infringement of competition law by publication of a Commission decision penalising that infringement cannot in principle be confused with access by third parties to documents in the Commission’s investigation file. The publication of such information would not result in the communication of leniency statements to third parties (paragraph 93 of the judgment under appeal).

93. The General Court then examined the three conditions relating to the concept of ‘professional secrecy’ laid down in its case-law. (33)

94. As regards the first two conditions, the General Court considered that they were satisfied, as the information in question was known only to a limited number of persons and its disclosure was likely to cause serious harm to the appellant. The General Court found that the information at issue consisted essentially in the description of component elements of the infringement. A number of passages in the PHP Decision, publication of which was envisaged, shed significantly more detailed light on the appellant’s unlawful conduct and could therefore enable injured third parties to establish more easily the conditions and the extent of its civil liability (paragraphs 96 to 105 of the judgment under appeal).

95. As concerns the third condition, on the other hand, the General Court held that the appellant’s interests that were likely to be harmed by disclosure did not objectively merit protection and that the information at issue therefore did not fall under professional secrecy. The General Court recalled that the condition in question required that the public interest of transparency be weighed against the legitimate interests opposing disclosure. In order to object to the publication of the information relating to the infringement, the appellant could not lawfully rely on the interest in the protection of its reputation, or on its interest in protecting itself against an order for damages, or on the public interest in the effectiveness of the leniency programmes (paragraphs 106 to 122 of the judgment under appeal).

96. As regards, last, the third part, the General Court held that although information received in the context of an investigation concerning an infringement of EU law relating to cartels must in principle be regarded as relating to the private activity of a person, that person cannot rely on his right to the protection of that information in order to complain of a loss of reputation which is the foreseeable consequence of his own actions (paragraphs 124 to 126 of the judgment under appeal).

97. In answer to the appellant’s arguments relating to a breach of legitimate expectations, raised in support of the third plea in the application at first instance, the General Court considered that those arguments were essentially the same as the arguments developed in respect of the fourth plea and must be examined in the context of that plea (paragraph 77 of the judgment under appeal). The General Court examined those arguments in paragraphs 134 to 158 of the judgment under appeal.

2. Arguments of the parties

98. The present plea consists of four parts.

99. By the first part, the appellant maintains that the General Court was wrong to find that the information at issue had ceased to be confidential solely because it was more than five years old (paragraphs 84 to 86 of the judgment under appeal).

100. By the second part, the appellant claims that General Court ought to have found that the information originating in the leniency statements should have been classified as confidential.

101. In the appellant’s submission, the General Court was wrong to refuse to apply in this case the same criteria as those applicable to access to documents, referred to in Article 4 of Regulation No 1049/2001 (paragraphs 92 and 93 of the judgment under appeal). It maintains that the distinction which the General Court draws between access to documents and publication of the information in those documents is artificial.

102. The appellant submits that leniency statements are made for the sole purposes of the Commission’s proceedings and in reliance on the fact that the Commission will respect the assurances given in point 32 of the 2002 Leniency Notice and point 40 of the Commission Notice in Immunity from fines and reduction of fines in cartel cases (‘the 2006 Leniency Notice’). (34)

103. In the appellant’s submission, the grounds set out in paragraphs 93, 117, 138, 140 to 150, 155 and 161 of the judgment under appeal are therefore incorrect, in that they are based on the finding that the disclosure of the content of leniency statements, in the public version of the PHP Decision, cannot be treated in the same way as the partial disclosure of the leniency statements themselves. The appellant maintains that the General Court was wrong to find that the Commission was free to publish any type of information taken from the leniency statements, even where it included direct or indirect quotations from those statements.

104. In the alternative, by the third part, the appellant maintains that the information at issue is in any event confidential according to the criteria laid down in the judgment in Bank Austria Creditanstalt v Commission. (35) Contrary to the General Court’s findings in paragraphs 107 to 111 of the judgment under appeal, the appellant’s interests are objectively deserving of protection within the meaning of that case-law.

105. By the fourth part, the appellant takes issue with paragraphs 121 to 126 of the judgment under appeal, relating to the alleged breach of its right to protection of its private life. It maintains that the disclosure of the content of its leniency statements cannot, contrary to the General Court’s assertion, be considered to be a foreseeable consequence of its participation in the cartel.

106. The Commission disputes those arguments, referring, in essence, to the relevant grounds of the judgment under appeal.

3. Assessment

a) Preliminary observations

i) The confidential nature of the leniency statements

107. The appellant’s main argument in the context of the present plea relates to the allegedly confidential nature of the information taken from the leniency statements and its protection against disclosure in the context of the publication of Commission decisions.

108. I note that corporate statements made with a view to obtaining leniency are different from any other document received by the Commission in the course of the investigation, since they contain a detailed description of the facts of the infringement provided voluntarily by a direct participant. (36) A leniency statement, unlike the other material in the Commission’s file, is thus an evaluative document, communicated spontaneously, and specifically intended to be drawn up in the context of the leniency programme and whereby its author admits the infringement, thus waiving his right not to incriminate himself.

109. The nature of that document justifies reservations as to its disclosure.

110. In accordance with the 2002 Leniency Notice and the 2006 Leniency Notice, the public disclosure of leniency statements, and of other documents obtained in the context of the leniency programme, is in principle precluded, even after adoption of the Commission’s decision, having regard to the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, on the protection of commercial interests and the protection of the purpose of inspections and investigations. (37) Such statements should not be affected by the communication of documents in civil proceedings. On the other hand, the protection of leniency statements does not prevent their being disclosed to the other parties exercising their rights of defence, in the context of access to the file. (38) The documents relating to the European Competition Network make provision for exceptions to the exchange of statements between the competition authorities. (39)

111. The Commission’s practice as revealed in those documents is based on a distinction between leniency statements and pre-existing documents submitted by the leniency applicant. Leniency statements enjoy, in principle, complete immunity from disclosure to the public and communication to the national courts.

112. The Commission has consistently defended that practice before the Court of Justice (40) and, as amicus curiae, before the national courts. (41)

113. In the judgment in Pfleiderer, (42) the Court acknowledged the possibility that documents relating to a leniency programme might be disclosed in civil proceedings. When examining an application for access to such documents, the national courts must weigh up, on a case-by-case basis, the interests in favour of disclosure of the information and the protection of the information provided voluntarily by the leniency applicant. It is thus necessary to weigh the right of the third parties injured by the cartel to bring civil actions for damages (43) and the protection of the effectiveness of proceedings brought by the public authorities. However, the Court did not rule on the special nature of leniency statements. (44)

114. In the judgment in Commission v EnBW, (45) the Court held that there is a general presumption that the disclosure of the documents in a file relating to a proceeding under Article 101 TFEU will, in principle, undermine the protection of the commercial interests of the undertakings involved in such a proceeding and the protection of the purpose of the investigations relating to the proceeding within the meaning of the first and third indents of Article 4(2) of Regulation No 1949/2001.

ii) The consequences of protecting leniency statements when the Commission’s decisions are published

115. It is necessary to determine whether the protection afforded to leniency statements must be reflected in certain limits being placed on the use of the information taken from those statements in the grounds of Commission decisions finding the infringement.

116. I note, in that regard, that protection against disclosure is intended for sensitive information, irrespective of the medium whereby it is presented. It follows that if leniency statements are protected, that protection also extends, in principle, to the transcription of that information in other documents.

117. That reasoning seems to be accepted by the Commission. When it intervened as amicus curiae before a United Kingdom court in November 2011, (46) the Commission maintained that the reservations attaching to the disclosure of leniency statements also apply where the confidential version of its decision is disclosed in a civil action, since that decision contains quotations from the leniency statements.

118. The fact that the information contained in leniency statements must also be protected when it is transcribed in another document, implies that the Commission must exercise some restraint as regards the use of such information in the public version of its decisions.

119. I nonetheless note that the protection of leniency statements is justified by the public interest in ensuring that the leniency programmes, an essential instrument in the detection of cartels, are attractive. (47) However, the appellant cannot rely on such a public interest as against the Commission.

120. One might wonder whether the protection at issue is also based on the particular interest of the leniency applicant. (48)

121. In my view, the existence of such an interest may be inferred from the way in which the leniency programmes function.

122. When the public authority establishes the leniency programme, it creates a legal framework which encourages an undertaking to report spontaneously its participation in the infringement and thus to waive its right not to incriminate itself. It follows that there is a relationship based on trust between the appellant and the Commission, comparable to that between the Commission and the informant or complainant in competition proceedings. (49) An undertaking which decides to waive its right not to incriminate itself must be able to take that decision in full knowledge of the facts. It can thus expect that the Commission will take its interests into account when making use of the information communicated in that specific context.

123. However, even accepting that it may be inferred that the undertaking concerned has a legitimate expectation that it will receive confidential treatment, that expectation applies only to the disclosure of the information obtained within the framework of cooperation in a context which enables the source of the information to be traced, and does not apply to the protection of that information as such.

124. That consideration arises from the fact that the protection of the information at issue is not the consequence of its intrinsically sensitive content, but of the combination of the content and the circumstances in which the information was communicated to the Commission. (50)

125. Therefore, to my mind, even though the Commission must exercise a certain restraint as regards the use of that information when it publishes its decisions, the restrictions on disclosure resulting from the legitimate interest of the leniency applicant apply only to the information that enables the connection with the leniency statement to be identified. Only the disclosure of that information would enable the reader to reconstruct the precise content of the passages from the leniency statements, which would be equivalent to its partial disclosure.

126. On the other hand, to my mind, the Commission must have a discretion as regards the use in the public versions of its decisions of other material taken from the leniency statements.

127. The Commission must have a wide discretion when describing the functioning of the cartel in its decision, including in the published version. In many investigations the leniency statements constitute, at least for certain episodes in the infringement and on condition that they are corroborated by other independent material, the main source of evidence. If all the information originating in those statements had to be deleted, the decision might prove to be of no use as a source of information about an infringement. It is necessary to take account of the fact that, since the Commission’s file is protected by the general presumption established in the judgment in Commission v EnBW, (51) the non-confidential version of the Commission’s decision is the most important source of information for third parties who consider that they have been harmed by the cartel. (52) The possibility for those third parties to bring civil actions might thus be unduly restricted.

128. Furthermore, in deciding to report the cartel, a leniency applicant must be aware that the information communicated in the context of its cooperation will be an important source of information and will be extensively used by the Commission in order to establish and describe the facts, including in the non-confidential version of the decision. Thus, the leniency applicant must accept that, apart from direct quotations from his statements and other information that would allow him to be identified as a source, the information communicated to the Commission will be reported in its decision, including in the public version.

129. I would point out that, in deciding to cooperate with the Commission, an applicant can reasonably foresee that the confidential nature of his cooperation cannot be protected without reservation. The identity of the leniency applicant will be known to the public as soon as the Commission’s decision is adopted. In addition, although the Commission might be expected to take reasonable measures to conceal the source of the evidence obtained in the context of cooperation, it is inevitable that a reader of the decision, aware of the identity of the leniency applicant or applicants, might be led to speculate that one or another item of information is the consequence of their cooperation.

b) First part

130. By the first part of the plea, the appellant disputes the application of the ‘five years’ presumption, based on the age of the commercial information, in paragraphs 84 to 86 of the judgment under appeal.

131. According to the Commission’s practice (53) and the case-law of the General Court developed in the context of applications for confidentiality, (54) as a general rule, information which is five or more years old must be deemed not to be confidential, unless, exceptionally, the undertaking concerned shows that the information is still an essential element of its commercial situation.

132. That practice is based on the general consideration that commercial information ceases to be sensitive with the passage of time. To my mind, that consideration justifies the application of a presumption linked to a fixed period based on experience, which the undertaking concerned is able to rebut by adducing evidence to the contrary.

133. I note that that presumption does not preclude the confidentiality of certain information being maintained beyond that period of five years. Its application can therefore be reconciled with the consideration that exceptions in matters related to access to documents may potentially be applied for a period of 30 years, or even longer where necessary. (55)

134. I must make clear that all of those considerations relate to commercially sensitive information and do not apply to information in respect of which confidentiality is claimed on a different ground.

135. In the present case, the appellant takes issue with paragraphs 84 to 86 of the judgment under appeal and maintains that the information taken from a leniency statement does not cease to be confidential solely by reason of the passage of time. In its submission, the protection of such information cannot be limited to a strictly-defined period.

136. To my mind, that criticism is the consequence of a misreading of the judgment under appeal.

137. In paragraphs 84 to 86 of the judgment under appeal, the General Court rejected the appellant’s argument that the proposed publication contained confidential commercial information relating to its business relations and its pricing policy (first part of the first plea in the application at first instance).

138. The rejection of that argument is without prejudice to the examination by the General Court of the appellant’s separate argument that the information at issue must be protected against disclosure on the ground that it comes from a leniency statement (second part of the third plea, paragraphs 88 to 122 of the judgment under appeal).

139. Thus, in maintaining that the ‘five years’ presumption cannot apply to information contained in the leniency statement, the appellant disregards the fact that the application of that presumption, in paragraphs 84 to 86 of the judgment under appeal, relates only to the argument which it bases on commercially sensitive information.

140. I therefore consider that the first part of the plea is unfounded.

c) Second part

141. The appellant maintains that the information at issue, contained in its leniency statement, enjoys the protection afforded to business secrets, so that, having regard to Article 339 TFEU and Article 30 of Regulation No 1/2003, read in the light of Article 4(2) of Regulation No 1049/2001, the Commission cannot include that information in the public version of its decision, unless there is an overriding public interest, which, in the appellant’s submission, has not been demonstrated in the present case.

142. That argument rests on the premiss that the use of information taken from a leniency statement in the public version of the Commission’s decision is tantamount to partial disclosure of the statement itself.

143. However, having regard to my observations above, (56) that premiss is incorrect.

144. Although the Commission must take the confidential nature of the leniency statement into account when it uses the information in that statement in the public version of its decision, the limitations in that respect relate to the information that enable its origin to be inferred, that is to say, mainly to direct quotations from the statements and to references to the source.

145. Thus, even if it is accepted that the appellant has a particular interest in the confidentiality of its leniency statements, which the Commission disputes in the present case, that interest could be relied on solely in order to oppose the publication of the passages of the decision that contain direct quotations from the statement or references to the source.

146. However, the disclosure of such information does not form the subject-matter of the present case.

147. In fact, the Commission states that it deleted, in the extended non-confidential version publication of which is envisaged, all the information from which it might be inferred that it came from statements or documents submitted to the Commission in the context of cooperation under the leniency programme, by redacting in the main text and in the footnotes any link between the information and the fact that it came from the leniency applicant.

148. Thus, as is apparent from paragraph 139 of the judgment under appeal, all information that might permit, directly or indirectly, identification of the source of the information taken from the appellant’s leniency statement was redacted.

149. In so far as the appellant maintains, in the context of the appeal, that the non-redacted passages still include verbatim quotations from its leniency statement, it is appropriate to examine that argument in the light of what the appellant means by ‘verbatim quotation’.

150. In effect, the appellant maintains that that concept covers not only ‘word-for-word quotations and those marked as such’, but also ‘passages which reproduce verbatim, but either (i) without being marked as quotations or (ii) in indirect speech, the wording of corporate statements’, and maintains, in that regard, that it is not sufficient for the Commission to redact the name of the undertaking quoted or the actual reference to the document in the Commission’s file. The appellant claims that, since it is regarded, in recital 85 of the PHP Decision, as the main source of the Commission’s information, third parties will take it a priori as the source of at least a large number of the quotations in the decision.

151. However, as I have already stated, (57) although the Commission may be expected to take reasonable measures to conceal the source of the evidence obtained in the context of cooperation, it is inevitable that a reader of the decision who is aware of the identity of the leniency applicant or applicants may be led to speculate that one or another item of information is the consequence of their cooperation. That consideration is not sufficient to uphold a legitimate reservation as to the publication of the passages concerned. Therefore, apart from the direct quotations from the statements and other information from which the source might be identified, which are not concerned by the argument on which the appellant relies, the appellant cannot validly object to the publication, in the Commission’s decision, of the information relating to the infringement contained in its leniency statement.

152. Nor am I convinced by the appellant’s argument that the General Court failed to apply the criteria on access to documents referred to in Article 4(2) of Regulation No 1049/2001.

153. Admittedly, the Court of Justice has held that, as regards access to the public documents contained in its file relating to the competition proceedings, the Commission was able to rely on a general presumption that such disclosure is inconsistent with the interests referred to in the first and third indents of Article 4(2) of Regulation No 1049/2001. (58)

154. However, that presumption, which was established in favour of the Commission and which allows it to decline to examine each individual document in its file, cannot in my view be raised as against the Commission itself. Where it describes the unlawful acts in the public version of its decision, the Commission cannot proceed from the presumption that its entire file is confidential. As the General Court stated in paragraph 92 of the judgment under appeal, such a presumption would not only render Article 30 of Regulation No 1/2003 ineffective, but would also have the effect, in practice, of reversing the burden of proof, which, where confidential treatment is concerned, is borne by the person requesting such treatment.

155. The appellant cannot therefore validly rely on the case-law of the General Court in which it has been held that information must be considered to be covered by professional secrecy, in so far as its confidentiality is the consequence of an exception to the right of access to documents laid down in Article 4 of Regulation No 1049/2001. (59)

156. Last, to my mind the appellant is wrong to maintain that the solution adopted by the General Court means that the Commission is free to publish any information taken from a leniency statement.

157. I note that it follows from the decision at issue that the Commission agreed to certain requests submitted by the appellant, in particular those relating to the redaction of the references to the source of the information. Those requests therefore no longer formed the subject-matter of the dispute before the General Court.

158. In that regard, in paragraphs 136 to 139 of the judgment under appeal, the General Court drew a distinction between the publication of the information taken from the leniency statements and the disclosure of the statements themselves, referring to the fact that the Commission suppressed all information that might permit, directly or indirectly, identification of the source of the information communicated to it in the context of the leniency programme. (60) It is apparent from paragraph 141 of the judgment under appeal, moreover, that the protection afforded to the confidential version of a Commission decision is justified, in particular, by the fact that it contains indications of the source of the information communicated in the context of the leniency programme and that such a confidential version is therefore liable to reflect the self-incriminating statements made by those undertakings. It may be inferred that the same restriction applies to the non-confidential version of a Commission decision, from which such indications relating to the source of the information should be removed.

159. Therefore, contrary to the appellant’s contention, it does not follow from the grounds of the judgment under appeal that the Commission’s discretion in relation to the publication of information obtained in the context of cooperation is unlimited.

160. In the light of the foregoing, I consider that the General Court was correct to reject the appellant’s argument based on the confidentiality of the information communicated under the leniency programme.

d) Third part

161. By way of alternative to the preceding parts of the plea, the appellant maintains that, contrary to the findings of the General Court in paragraphs 106 to 111 of the judgment under appeal, the third condition relating to the classification of professional secrecy referred to in the case-law stemming from the judgment in Bank Austria Creditanstalt v Commission, (61) namely the existence of interests that are objectively worthy of protection, is satisfied in the present case.

162. The appellant takes issue with the rejection of its argument that the proposed interference would constitute an unwarranted interference in pending or future civil actions. In that regard, it asserts that the General Court distorted its argument by stating that the appellant sought in essence to protect itself against any order for damages made by a national court, which is not an interest worthy of protection (paragraphs 109 and 110 of the judgment under appeal). In the appellant’s submission, its interest is not in avoiding payment of damages but in avoiding being treated in a discriminatory fashion in the context of such actions for damages, since the disclosure of information taken from its statement would place it at a disadvantage by comparison with other participants in the cartel.

163. I note that, as is apparent, in particular, from paragraphs 103 and 104 of the judgment under appeal, the more complete publication envisaged by the Commission related in particular to the grounds of the PHP Decision relating to the functioning of the cartel and would therefore have been likely to enable injured third parties to establish more easily the civil liability of both the appellant and other undertakings that had participated in the infringement. The information in question is therefore information that facilitates the establishment of the liability of all the participants in the cartel.

164. In that regard, on the assumption that the appellant may lawfully rely on its interest in preventing a link being established between the information provided and the appellant itself as a source of information, that interest is ensured by the redaction of the direct quotations and other information that would permit identification of the source.

165. If, on the other hand, the appellant intends to rely on its interest in concealing the importance of the role which it played in organising the infringement, which is apparent from the information in question, so that that aspect would not be raised in actions for damages or actions for indemnity, the interest in question is therefore, as the Commission submits with reference to paragraphs 107 and 110 of the judgment under appeal and the case-law of the Court of Justice cited in those paragraphs, not an interest worthy of protection, in the light of the right to seek reparation of the harm caused by anti-competitive conduct.

166. I therefore consider that the third part of the plea is unfounded.

e) Fourth part

167. By the fourth part of the plea, the appellant takes issue with paragraphs 124 to 126 of the judgment under appeal and claims that there has been a breach of its right to protection of its private life, as enshrined in Article 7 of the Charter of Fundamental Rights of the European Union.

168. As the General Court observed in paragraph 124 of the judgment under appeal, the information submitted to the Commission by undertakings relates to their private activity and as such is subject to compliance with respect for their private life.

169. The General Court then stated that although such compliance applies to the information received in the context of an investigation concerning an infringement of EU law relating to cartels, the person concerned cannot rely on that right in order to complain of a loss of reputation which is the foreseeable consequence of his own unlawful actions (paragraph 125 of the judgment under appeal). Respect for private life cannot therefore prevent the disclosure of information which concerns an undertaking’s participation in an infringement of competition law established by the Commission (paragraph 126 of the judgment under appeal).

170. The appellant contends that that consideration does not apply in the present case, since the disclosure of the information at issue is not the foreseeable consequence of its participation in the infringement.

171. I note that the appellant does not dispute the General Court’s finding that it cannot properly rely on the loss of its reputation resulting from the publication of the information relating to its unlawful activities, as that loss was the foreseeable consequence of its own actions. That finding is supported, moreover, by the settled case-law of the European Court of Human Rights, with which the General Court drew a parallel. (62)

172. However, apart from the alleged impairment of its right to its reputation, which was examined and rejected by the General Court, the appellant does not indicate how the disclosure of the information at issue would have consequences for its right to respect for its private life.

173. I therefore consider that the fourth part and, accordingly, the second plea in its entirety must be rejected.

C – Third plea

174. By its third plea, the appellant relies on an alleged error of law by the General Court in its assessment of the principles of legal certainty and protection of legitimate expectations.

175. The appellant disputes, in essence, the rejection of its argument that the new publication of the PHP Decision would constitute a breach of its legitimate expectations, in particular, in that it would be tantamount to the withdrawal of a favourable decision adopted when the decision was first published in 2007 and, moreover, to the modification of the Commission’s previous practice.

1. The judgment under appeal

176. In paragraphs 159 to 163 of the judgment under appeal, the General Court examined and rejected as unfounded the appellant’s argument, put forward in the context of the fourth plea, that the publication of a first non-confidential version of the PHP Decision in 2007 is the source of its legitimate expectations.

177. The General Court held that the Commission was free to publish, of its own volition, a version of the PHP Decision that was fuller than the minimum necessary and also to include information the publication of which is not required, in so far as the disclosure of that information was not inconsistent with the protection of professional secrecy. In that context, the mere fact that the Commission published a first non-confidential version of the PHP Decision in 2007 and did not describe that version as provisional could not be regarded as having given the appellant any precise assurance that a new, more complete, non-confidential version of that decision would not be published subsequently. Such a subsequent publication could, in particular, take into account the fact that, with the passage of time, the commercially sensitive information had become dated.

2. Arguments of the parties

178. The appellant takes issue with the rejection, in paragraphs 136 to 165 of the judgment under appeal, of its argument that there had been a breach of the principles of legitimate expectations and legal certainty.

179. In the first place, in the appellant’s submission, the General Court disregarded the case-law of the Court of Justice, according to which lawful administrative acts, in favour of an individual, cannot in principle be withdrawn or cancelled. (63) The appellant maintains in that regard that, by publishing the first non-confidential version of the PHP Decision in 2007, the Commission agreed to the deletions desired by the appellant and put an end to the publication procedure, adopting a decision favourable to the appellant, the cancellation of which, envisaged by the decision at issue, is contrary to the conditions laid down in the case-law.

180. In the second place, the appellant maintains that the General Court was wrong to reject its argument based on the modification of the Commission’s previous practice. In the appellant’s submission, even if it were accepted that the Commission is free to alter the practice established in the 2006 Leniency Notice and to reduce the level of protection afforded to leniency statements — for future cases — it could not, on the contrary, intervene, to the appellant’s detriment, in a factual situation in respect of which it had already made a determination by publishing the decision in 2007.

181. The Commission disputes those arguments, referring, essentially, to the relevant grounds of the judgment under appeal.

3. Assessment

182. The argument developed by the appellant within the present plea consists, in essence, of two parts, alleging, first, a breach of the conditions on which an administrative measure may be withdrawn and, second, a breach of legitimate expectations as a result of the Commission’s alleged modification of its practice.

a) First part

183. It has consistently been held that the retroactive withdrawal of an individual administrative measure is generally subject to very strict conditions. The Court has acknowledged that the EU institutions are entitled to withdraw an unlawful measure, provided that they do so within a reasonable period and respect the legitimate expectation of the beneficiary. (64) It may be inferred that the withdrawal of a legal individual measure, which creates a right, is in principle precluded. (65)

184. The guarantees afforded to the person concerned in that context are recognised only in so far as the measure in question creates a right, in that it affects his legal position.(66)

185. In the present case, the appellant maintains that, by publishing the first non-confidential version of the PHP Decision in 2007, the Commission agreed to the deletions desired by the appellant and that such a decision cannot be withdrawn.

186. In order to answer that argument, it is necessary to determine whether, in the context of the 2007 publication, the Commission made a determination as to the confidential nature of the information not included in the version of the PHP Decision published at that time.

187. I note that, as is apparent from paragraph 163 of the judgment under appeal, the Commission did not take a specific decision that might be analysed as a commitment vis-à-vis the appellant not to publish in future certain information deleted in 2007.

188. The appellant’s argument thus raises the question whether the Commission implicitly made a ruling as to the confidential nature of the information not published in 2007, merely by not including that information in the non-confidential version published at that time.

189. To my mind, the existence of such an implicit decision cannot be inferred from the circumstances in which the decision was published in 2007. As stated in paragraph 161 of the judgment under appeal, the Commission has a wide discretion to define the scope of the information published pursuant to Article 30(2) of Regulation No 1/2003. It cannot be inferred from that provision that the Commission must adopt a definitive position in that regard at the time of the first publication.

190. There are, on the other hand, several reasons that could justify the subsequent, more complete, publication of a decision.

191. In order to enable the public to become aware of the grounds of its decision, the Commission must take account of the principle of transparency and must draw up, without delay, a non-confidential version, even if it is a provisional version, of its decision containing material not covered by the requests for confidentiality that cannot be resolved immediately. (67) The requirement for transparency, in the light of the strict time limits laid down in Regulation 1049/2001, may thus justify a number of successive publications of the same decision.

192. Furthermore, as the General Court observed in paragraph 162 of the judgment under appeal, a subsequent publication may be justified by the fact that certain confidential information may cease to be sensitive with the passage of time.

193. In those circumstances, as the General Court correctly stated in paragraphs 106 and 161 of the judgment under appeal, the mere fact that the non-confidential version of the PHP Decision published in 2007 was not described as ‘provisional’ is not sufficient to establish that the Commission adopted a definitive position of the scope of the publication, and committed itself, implicitly, not to publish a new, more detailed, non-confidential version of that decision in future.

194. I therefore propose that the first part of this plea should be rejected.

b) Second part

195. It is apparent from the appellant’s arguments that, independently of whether or not the information at issue is confidential, it relies on a breach of the principle of legitimate expectations which, it claims, is the consequence of the alteration of the Commission’s practice.

196. I recall that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union.(68)

197. I note that the Commission’s commitments in the 2002 Leniency Notice and the 2006 Leniency Notice relate solely to the disclosure of the leniency statements and other documents submitted in the context of the leniency programme (paragraphs 137 and 138 of the judgment under appeal).

198. Thus, to my mind, even if it is accepted that those notices give rise to the legitimate expectations that the confidentiality of the leniency statements will be respected, there can be no legitimate expectation that the information about the infringement contained in those statements will not be included in the public version of the Commission’s decision.

199. I therefore consider that the appellant’s argument alleging that there was a breach of the principle of legitimate expectations as a consequence of the modification of the Commission’s practice cannot succeed.

200. I note that it is clearly desirable that the functioning of the leniency programme should be accompanied by conditions that are clear and foreseeable for leniency applicants. (69) I also note that, at the material time, the Commission had not established precise guidelines relating to the preparation of the public versions of its decisions, relying in that regard on the question of the use of information received in the context of the leniency programme. However, that circumstance alone is not capable of leading to the finding that the Commission breached precise assurances given to the appellant.

201. Consequently, I propose that the third plea should be rejected and, consequently, that the appeal in its entirety should be dismissed.

D – Final observations

202. Following my assessment, I should like to make a number of general observations about the system of the production of evidence established by Directive 2014/104. That directive admittedly postdates the facts of the dispute but to my mind it should nonetheless be taken into account by the Commission in the event that it should proceed with the proposed publication following the present appeal.

203. Directive 2014/104 closes the discussion of the extent of the protection of statements made with a view to obtaining leniency. It requires that those statements should be fully protected against disclosure in actions for damages, in particular by drawing a distinction between those statements and pre-existing information, which may be disclosed. That solution thus ensures that a fair balance is struck between the opposing interests, by legislative means. (70)

204. To my mind, the fact that the leniency statements are afforded full protection does not mean that the same level of protection must be afforded to the factual information concerning the infringement contained in those statements when the Commission’s decisions are published. Public access to the information relating to the unlawful facts is a fundamental element of actions for damages, since it allows injured third parties to ascertain the course taken by the cartel and facilitates the establishment of the facts relating to the existence and the extent of liability, with respect to all the participants.

205. If the absolute protection afforded to leniency statements by Directive 2014/104 were to be extended to information relating to the unlawful facts contained in those statements, the delicate balance established by that directive could be upset. Such a wide protection of the leniency documents cannot be inferred from Directive 2014/104, in the absence of any express provision to that effect. On the other hand, that directive specifically envisages, in recital 26, that the limitations on the disclosure of evidence should not prevent the competition authorities from publishing their decisions in accordance with the applicable EU or national law.

206. Thus, to my mind, the information in leniency statements may be used in the public versions of Commission decisions, provided only that the link that would enable their source to be identified is removed. (71)

207. Even if it is accepted that a leniency applicant might legitimately rely on his leniency statement being afforded confidential treatment, in view of the fact that his participation in the leniency programme means that he has waived his right not to incriminate himself, that expectation applies only to the protection of the statement as such, of the verbatim quotations and other information that would permit that statement to be directly identified as the source. On the other hand, that expectation does not cover the disclosure of the factual information relating to the infringement.

208. Last, I would observe that the tension between the application of competition law by the public authorities and the role of civil actions for damages is apparent in various contexts. The interests of leniency applicants are also protected by other means, less harmful to the interests of injured third parties, in particular by limiting their joint and several liability. (72)

VIII – Conclusion

209. In the light of all of the foregoing, I propose that the Court should dismiss the appeal and order Evonik Degussa GmbH to pay the costs, including the costs of the interlocutory proceedings.

Table of contents

I – Introduction

II – Legal framework

III – Background to the dispute

IV – The decision at issue

V – Procedure before the General Court and judgment under appeal

VI – Procedure before the Court and forms of order sought

VII – Assessment of the appeal

A – First plea

1. The judgment under appeal

2. Arguments of the parties

3. Assessment

a) First part

i) Preliminary observations

ii) The extent of the hearing officer’s control

iii) Assessment of the findings of the General Court

b) Second part

B – Second plea

1. The judgment under appeal

2. Arguments of the parties

3. Assessment

a) Preliminary observations

i) The confidential nature of the leniency statements

ii) The consequences of protecting leniency statements when the Commission’s decisions are published

b) First part

c) Second part

d) Third part

e) Fourth part

C – Third plea

1. The judgment under appeal

2. Arguments of the parties

3. Assessment

a) First part

b) Second part

D – Final observations

VIII – Conclusion

1 Original language: French.

2 T‑341/12, EU:T:2015:51, ‘the judgment under appeal’.

3 Commission Decision of 24 May 2012 rejecting a request for confidential treatment made by Evonik Degussa, in application of Article 8 of Decision 2011/695/EU of the President of the Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case COMP/38.620 — Hydrogen Peroxide and Perborate; ‘the decision at issue’).

4 I note that the issue of disclosure and confidentiality in the context of actions for damages was recently discussed at the XXVIIth FIDE Congress (FIDE Congress Proceedings Vol. 2. Private Enforcement and Collective Redress in European Competition Law, Budapest 2016, see questions 44 to 55).

5 Apart from the judgment delivered in the present case, three judgments delivered by the General Court concerned the same matter and one of them is under appeal: judgments of 28 January 2015 in Akzo Nobel and Others v Commission (T‑345/12, EU:T:2015:50); of 15 July 2015 in AGC Glass Europe and Others v Commission (T‑465/12, EU:T:2015:505, under appeal in the pending Case C‑517/15 P); and of 15 July 2015 in Pilkington Group v Commission (T‑462/12, EU:T:2015:508).

6 Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ 2003 L 1, p. 1).

7 Decision of the President of the European Commission of 13 October 2011 (OJ 2011 L 275, p. 29).

8 OJ 2002 C 45, p. 3.

9 The fifth plea alleged infringement of Article 28(1) of Regulation No 1/2003 and breach of the Commission’s Notice on the rules for access to the Commission files in cases pursuant to Articles [101 TFEU] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and of Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7; ‘the Notice on access to the file’).

10 Commission Decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ 2001 L 162, p. 21).

11 See judgments of 30 May 2006 in Bank Austria Creditanstalt v Commission (T‑198/03, EU:T:2006:136, paragraph 34) and of 12 October 2007 in Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306, paragraph 66).

12 See, respectively, 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 [EU] institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1) and 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).

13 Commission Regulation (EC) 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).

14 See judgments of 24 June 1986 in AKZO Chemie and AKZO Chemie UK v Commission (53/85, EU:C:1986:256, paragraph 28); of 19 May 1994 in SEP v Commission (C‑36/92 P, EU:C:1994:205, paragraph 37); of 14 February 2008 in Varec (C‑450/06, EU:C:2008:91, paragraph 49); and of 29 March 2012 in Interseroh Scrap and Metals Trading (C‑1/11, EU:C:2012:194, paragraph 43).

15 The area of the unlawful appropriation of business secrets was recently harmonised by Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ 2016 L 157, p. 1). That directive is not to affect the rules relating to the disclosure of information to the administrative authorities (Article 1(2)(b)).

16 The Court held that what is involved is a general principle which also applies to information supplied by natural persons, if that information is by nature confidential. See judgment of 7 November 1985 in Adams v Commission (145/83, EU:C:1985:448, paragraph 34) and the Opinion which Advocate General Lenz delivered in AKZO Chemie and AKZO Chemie UK v Commission (53/85, EU:C:1986:25).

17 In the case of information supplied on a purely voluntary basis, but accompanied by a request for confidentiality in order to protect the informant’s anonymity, an institution which accepts such information is bound to comply with such a condition (see judgments of 7 November 1985 in Adams v Commission (145/83, EU:C:1985:448, paragraph 34); of 18 September 1996 in Postbank v Commission (T‑353/94, EU:T:1996:119, paragraph 86); of 6 July 2000 in Volkswagen v Commission (T‑62/98, EU:T:2000:180, paragraph 279); and of 5 April 2006 in Degussa v Commission (T‑279/02, EU:T:2006:103, paragraph 409)).

18 See, as regards access to the file, judgments of 1 April 1993 in BPB Industries and British Gypsum v Commission (T‑65/89, EU:T:1993:31, paragraph 33), and also of 6 April 1995 in BPB Industries and British Gypsum v Commission (C‑310/93 P, EU:C:1995:101, paragraph 26). The Court held that third party undertakings which submit documents to the Commission and consider that reprisals might be taken against them as a result can do so only if they know that account will be taken of their request for confidentiality. See also judgments of 28 April 1999 in Endemol v Commission (T‑221/95, EU:T:1999:85, paragraph 66) and of 25 October 2002 in Tetra Laval v Commission (T‑5/02, EU:T:2002:264, paragraph 98).

19 See Notice on access to the file, points 17 to 20.

20 Judgments of 30 May 2006 in Bank Austria Creditanstalt v Commission (T‑198/03, EU:T:2006:136, paragraph 71), and of 12 October 2007 in Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306, paragraph 65).

21 I note that the Court has already had occasion to interpret the duty of professional secrecy in the context of prudential secrecy (see judgment of 12 November 2014 in Altmann and Others, C‑140/13, EU:C:2014:2362). A pending case concerns the conditions in which the information communicated to the financial markets supervisory authority is covered by the term ‘confidential information’ (pending case in Baumeister, C‑15/16).

22 See recitals 3 and 8 of Decision 2011/695. Similar posts have been established in certain Member States, in particular the Procedural Adjudicator in the Office of Fair Trading (OFT) in the United Kingdom.

23 See point 182 of this Opinion.

24 Judgment of 24 June 1986 (53/85, EU:C:1986:256, paragraph 29).

25 In a subsequent judgment, of 15 July 2015 in AGC Glass Europe and Others v Commission (T‑465/12, EU:T:2015:505, paragraph 59), the General Court held, referring to paragraph 43 of the judgment under appeal, that the powers of the hearing officer, with regard to confidential information, are confined to objections based on ‘the application of legal rules relating to the confidentiality of the information as such’ and do not extend to those ‘relied on with the objective of obtaining confidential treatment of the information irrespective of whether that information is inherently confidential’.

26 See point 43 of this Opinion.

27 Judgments of 9 June 1992 in Lestelle v Commission (C‑30/91 P, EU:C:1992:252, paragraph 28) and of 9 September 2008 in FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187).

28 See, to that effect, judgments of 14 February 1990 in Delacre and Others v Commission (C‑350/88, EU:C:1990:71, paragraph 16), and of 15 November 2012 in Council v Bamba (C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54 and the case-law cited).

29 See, to that effect, judgments of 6 November 2014 in Italy v Commission (C‑385/13 P, EU:C:2014:2350, paragraph 116) and, as regards the case-law of the General Court, judgments of 18 December 2003, in Olivieri v Commission and EMEA (T‑326/99, EU:T:2003:351, paragraph 55); of 27 June 2007 in Nuova Gela Sviluppo v Commission (T‑65/04, EU:T:2007:189, paragraph 49); of 19 April 2013 in Italy v Commission (T‑99/09 and T‑308/09, EU:T:2013:200, paragraphs 69 to 72); of 13 December 2013 in Hungary v Commission (T‑240/10, EU:T:2013:645, paragraph 91); and of 11 June 2015 in Laboratoires CTRS v Commission (T‑452/14, EU:T:2015:373, paragraph 60).

30 See, for an example in EU Trade Mark law, the case-law to the effect that, where a Board of Appeal of the European Union Intellectual Property Office (EUIPO) upholds the decision of the lower instance, the grounds of both decisions are to be taken into consideration. See judgments of 17 March 2016 in Naazneen Investments v OHIM (C‑252/15 P, EU:C:2016:178, paragraph 31); of 21 November 2007 in Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (VITAL FIT) (T‑111/06, EU:T:2007:352, paragraph 64); and of 18 March 2016 in El Corte Inglés v OHIM — STD Tekstil (MOTORTOWN) (T‑785/14, EU:T:2016:160, paragraph 42).

31 See recitals 8 and 15 and Article 1 of Decision 2011/695.

32 Judgment of 27 February 2014 (C‑365/12 P, EU:C:2014:112, paragraph 86).

33 Judgments of 30 May 2006 in Bank Austria Creditanstalt v Commission (T‑198/03, EU:T:2006:136, paragraph 71) and of 12 October 2007 in Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306, paragraph 65).

34 OJ 2006 C 298, p. 17.

35 Judgment of 30 May 2006 (T‑198/03, EU:T:2006:136).

36 The 2002 Leniency Notice, applicable at the material time, refers, without more, to ‘any written statement’ made vis-à-vis the Commission (point 33). The concept of ‘corporate statement’ made with a view to obtaining leniency, on the other hand, is explained in points 6 to 9 and 31 of the 2006 Leniency Notice, and also in Article 4a(2) of Regulation (EC) No 773/2004, as amended by Regulation (EU) No 2015/1348. See also the definition of ‘leniency statement’ in Article 2(16) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

37 The 2002 Leniency Notice (points 32 and 33) and the 2006 Leniency Notice (point 40).

38 The 2006 Leniency Notice (points 6 and 33) and Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles [101 TFEU] and [102 TFEU] (OJ 2004 C 101, p. 54, ‘the Notice on cooperation between the Commission and the national courts’).

39 See Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43, points 40 and 41) and European Competition Network Model Leniency Programme (point 30).

40 Notably in the cases giving rise to the judgments of 14 June 2011 in Pfleiderer (C‑360/09, EU:C:2011:389; see point 17 of the Opinion delivered by Advocate General Mazák in that case, C‑360/99, EU:C:2010:782); and of 27 February 2014 in Commission v EnBW (C‑365/12 P, EU:C:2014:112; see point 31 of the Opinion delivered by Advocate General Cruz Villalón in that case, C‑365/12 P, EU:C:2013:643).

41 See paragraph 141 of the judgment under appeal.

42 Judgment of 14 June 2011 (C‑360/09, EU:C:2011:389, paragraphs 30 and 31).

43 Judgments of 13 July 2006 in Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 91), and of 20 September 2001 in Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 27).

44 In his Opinion in Pfleiderer (C‑360/09, EU:C:2010:782, point 44), Advocate General Mazák proposed that the possibility of disclosing the statements submitted by leniency applicants, contributing voluntarily to the incrimination of their authors, should be limited.

45 Judgment of 27 February 2014 (C‑365/12 P, EU:C:2014:112, paragraphs 92 and 93).

46 See paragraph 145 of the judgment under appeal and the document available on the Commission’s website (http://ec.europa.eu/competition/court/amicus_curiae_2011_national_grid_en.pdf).

47 In fact, the disclosure of those statements would be likely to have the effect that leniency applicants incurred civil liability in more disadvantageous circumstances than those of other participants in the infringement and the incentive to report the cartel might thus be compromised. See the Notice on cooperation between the Commission and the national courts (point 45), the 2006 Leniency Notice (point 6) and judgment of 14 June 2011 in Pfleiderer (C‑360/09, EU:C:2011:389, paragraphs 26 and 27).

48 In point 45 of his Opinion in Pfleiderer (C‑360/09, EU:C:2010:782), Advocate General Mazák observed that leniency applicants could entertain a legitimate expectation in accordance with the practice of the Bundeskartellamt (Federal Cartel Office, Germany).

49 See point 43 of this Opinion.

50 See also point 42 of this Opinion.

51 Judgment of 27 February 2014 (C‑365/12 P, EU:C:2014:112).

52 The General Court has referred to this aspect in its case-law. See judgment of 7 October 2014 in Schenker v Commission (T‑534/11, EU:T:2014:854, paragraphs 114 and 115).

53 Notice on access to the file, point 23).

54 See orders cited in paragraph 84 of the judgment under appeal: orders of 15 November 1990 in Rhône-Poulenc and Others v Commission (T‑1/89 to T‑4/89 and T‑6/89 to T‑15/89, EU:T:1990:69, paragraph 23 ); of 22 February 2005 in Hynix Semiconductor v Council (T‑383/03, EU:T:2005:57, paragraph 60 and the case-law cited); of 8 May 2012 in Spira v Commission (T‑108/07, EU:T:2012:226, paragraph 65); and of 10 May 2012 in Spira v Commission, T‑354/08, EU:T:2012:231, paragraph 47).

55 See Article 4(7) of Regulation No 1049/2001 and judgment of 28 June 2012 in Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393, paragraphs 124 to 126).

56 See points 115 to 129 of this Opinion.

57 See point 129 of this Opinion.

58 Judgment of 27 February 2014 in Commission v EnBW (C‑365/12 P, EU:C:2014:112, paragraphs 92 and 93).

59 Judgments of 30 May 2006 in Bank Austria Creditanstalt v Commission (T‑198/03, EU:T:2006:136, paragraph 75), and of 12 October 2007 in Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306, paragraph 64).

60 It is apparent from the guidance document adopted by the Commission after the delivery of the judgment under appeal that the Commission will habitually redact of its own motion, in the public versions of its decisions on the application of Article 101 TFEU, quotes from corporate statements submitted under the Leniency Notice and information which could, directly or indirectly, allow for the identification of an applicant as the source of specific information submitted under the leniency programme. See ‘Guidance on the preparation of public versions of Commission Decisions adopted under Articles 7 to 10, 23 and 24 of Regulation No 1/2003’, (26 May 2015), (http://ec.europa.eu/competition/antitrust/guidance_on_preparation_of_public_versions_antitrust_04062015.pdf), point 22(c).

61 Judgment of 30 May 2006 (T‑198/03, EU:T:2006:136).

62 See paragraph 125 of the judgment under appeal.

63 Judgment of 17 April 1997 in de Compte v Parliament (C‑90/95 P, EU:C:1997:198, paragraph 35 and the case-law cited).

64 See, to that effect, judgments of 3 March 1982 in Alpha Steel v Commission (14/81, EU:C:1982:76, paragraphs 10 to 12); of 26 February 1987 in Consorzio Cooperative d’Abruzzo v Commission (15/85, EU:C:1987:111, paragraphs 12 to 17); of 20 June 1991 in Cargill v Commission (C‑248/89, EU:C:1991:264, paragraph 20); and of 20 June 1991 in Cargill (C‑365/89, EU:C:1991:266, paragraph 35).

65 Judgment of 22 March 1961 in Snupat v High Authority (42/59 and 49/59, EU:C:1961:5, p. 149).

66 Judgments of 22 March 1961 in Snupat v High Authority (42/59 and 49/59, EU:C:1961:5, p. 149); of 24 January 2002 in Conserve Italia v Commission (C‑500/99 P, EU:C:2002:45, paragraph 90); of 16 December 2010 in Athinaïki Techniki v Commission (C‑362/09 P, EU:C:2010:783, paragraph 79) and point 75 of the Opinion which Advocate General Bot delivered in Jager & Polacek v OHIM (C‑402/11 P, EU:C:2012:424). See also, to that effect, judgments of 10 July 1997 in AssiDomän Kraft Products and Others v Commission (T‑227/95, EU:T:1997:108, paragraph 41) and of 12 May 2011 in Région Nord-Pas-de-Calais and Communauté d’Agglomération du Douaisis v Commission (T‑267/08 and T‑279/08, EU:T:2011:209, paragraph 190).

67 Judgment of 7 October 2014 in Schenker v Commission (T‑534/11, EU:T:2014:854, paragraph 137).

68 Judgment of 13 June 2013 in HGA and Others v Commission (C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 132 and the case-law cited).

69 In his Opinion in Pfleiderer (C‑360/09, EU:C:2010:782, point 32), Advocate General Mazák observed that transparency and foreseeability are necessary for the effective functioning of the leniency programme.

70 See Article 2(16) and (17) and Article 6(6)(a) of Directive 2014/104. The 2006 Leniency Notice and the Notice on cooperation between the Commission and the national courts were amended accordingly (OJ 2015 C 256, p. 1 and p. 5).

71 Although Directive 2014/104 states, in recital 26, that the exemption from disclosure is to apply to ‘verbatim quotations from leniency statements’, that ground must in my view be seen as protecting statements against partial disclosure, in a context in which the source of the quotation could be identified.

72 See Article 11(4) of Directive 2014/104.