Case T‑345/12

Akzo Nobel NV and Others

v

European Commission

(Competition — Administrative proceedings — European market for hydrogen peroxide and perborate — Publication of a decision finding an infringement of Article 81 EC — Rejection of a request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Obligation to state reasons — Confidentiality — Professional secrecy — Legitimate expectations)

Summary — Judgment of the General Court (Third Chamber), 28 January 2015

1.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision of the hearing officer, in proceedings under the competition rules, dismissing a request for confidential treatment of information

(Art. 81 EC; Art. 296 TFEU; Commission Decision 2011/695, Art. 8)

2.      Acts of the institutions — Advertising — Compliance with the principle of openness — Scope — Option to publish acts in the absence of an express obligation to do so

(Art. 1, second para., TEU; Art. 15 TFEU)

3.      Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria

(Art. 81 EC; Art. 339 TFEU; Council Regulation No 1/2003, Arts 28 and 30)

4.      Competition — Administrative procedure — Professional secrecy — Scope — Differential treatment of persons having the right to be heard and of the public in general

(Art. 81 EC; Art. 339 TFEU; Council Regulation No 1/2003, Arts 27(2), and 28(2))

5.      Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria — Disclosure liable to cause serious harm — Information consisting in the description of elements constituting a breach of the competition rules — Publication of that information making it easier to establish civil liability of the undertakings concerned

(Art. 81 EC; Art. 339 TFEU; Council Regulation No 1/2003, Arts 28 and 30)

6.      Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Criteria — Interests, capable of being harmed by the disclosure of information, deserving protection — Balancing of the public interest in the transparency of EU action and legitimate interests opposed to disclosure — Interest of an undertaking that certain information concerning its conduct not be disclosed — Interest not deserving any particular protection in the case of undertakings which participated in an infringement of EU competition rules

(Art. 81 EC; Art. 339 TFEU; Council Regulation No 1/2003, Arts 28 and 30)

7.      Competition — Administrative procedure — Professional secrecy — Establishing whether information is covered by professional secrecy — Balancing of the public interest in the transparency of EU action and legitimate interests opposed to disclosure — Publication of information provided to the Commission voluntarily in order to benefit from the leniency programme — Balancing of the interests justifying communication of that information and its protection

(Art. 81 EC; Art. 339 TFEU; Council Regulation No 1/2003, Art. 30(2); Commission Notice 2002/C 45/03)

8.      Competition — Administrative procedure — Commission decision finding an infringement — Publication of information provided to the Commission voluntarily by an undertaking which participated in the infringement in order to benefit from the leniency programme — Discretion of the Commission — Leniency notices — Self-limitation of its discretion — Scope — No prohibition on publicising information contained in requests for leniency

(Art. 81 EC; Council Regulation No 1/2003, Art. 30; Commission Notices 2002/C 45/03 and 2006/C 298/11)

9.      Competition — Administrative procedure — Commission decision finding an infringement — Publication of information provided to the Commission voluntarily by an undertaking which participated in the infringement in order to benefit from the leniency programme — Discretion of the Commission — Scope — Change from the previous practice — No breach of the principle of the protection of legitimate expectations

(Art. 81 EC; Council Regulation No 1/2003, Art. 30(2))

1.      See the text of the decision.

(see paras 30-44)

2.      See the text of the decision.

(see para. 60)

3.      See the text of the decision.

(see paras 61, 65)

4.      See the text of the decision.

(see paras 67-69)

5.      In order for information to fall, by its nature, within the ambit of the obligation of professional secrecy and thus to enjoy protection against disclosure to the public, disclosure of that information must, inter alia, be liable to cause serious harm to the person who has provided it or to third parties.

Disclosure of information consisting in the description of the constituent elements of an infringement of Article 81 EC is liable to cause serious harm to an undertaking which participated in that infringement, in so far as the information is capable of helping natural or legal persons who consider themselves to be victims of the infringement to establish the civil liability of the undertaking.

(see paras 73, 74, 77)

6.      In order for information to fall, by its nature, within the ambit of the obligation of professional secrecy and thus to enjoy protection against disclosure to the public, the interests liable to be harmed by disclosure must be objectively worthy of protection. That condition implies that assessment of the confidentiality of a piece of information requires the individual legitimate interests opposing disclosure of the information to be weighed against the public interest that the activities of the institutions take place as openly as possible.

In that respect, the interest of an undertaking which the Commission has fined for breach of competition law in the non-disclosure to the public of details of the offending conduct of which it is accused does not, in principle, merit any particular protection, given the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and given the fined undertaking’s ability to seek judicial review of such a decision.

(see paras 79, 80)

7.      The effectiveness of leniency programmes could be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities or the Commission grant the leniency applicant an exemption, in whole or in part, from the fine which they could have imposed. A person involved in an infringement of competition law, faced with the possibility of such disclosure, could be deterred from taking the opportunity offered by such leniency programmes, particularly since the documents submitted to the Commission or the declarations made to the latter are liable to be self-incriminating.

However, the right to obtain compensation for loss caused by a contract or conduct liable to restrict or distort competition can make a significant contribution to the maintenance of effective competition in the European Union and thus contributes to achieving an objective in the public interest.

It is by applying those principles that the Court of Justice — ruling on a request for a preliminary ruling in the context of disputes relating to applications for access to investigation files held by national competition authorities made by undertakings that considered they had been adversely affected by infringements of competition law — held that the national courts adjudicating on such disputes must weigh up the respective interests in favour of disclosure of information provided voluntarily by leniency applicants and of protection of that information.

In a case not concerning a challenge to a refusal to grant access to documents relating to a competition proceeding, but rather the proposed publication by the Commission of certain information contained in documents or declarations which were submitted to it voluntarily by an undertaking involved in a breach of competition law in order to benefit from the leniency programme, and in which it has been claimed that publication of information voluntarily communicated during the investigation in the hope of benefiting from the leniency programme would undermine the purpose of the Commission’s investigations, that claim does not demonstrate the existence of a rule of law infringed by the Commission simply because the proposed publication of information provided in the context of the leniency programme could have an impact on the implementation of that programme in future investigations.

Furthermore, that particular argument involves the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised, and the interest of the Commission in safeguarding the effectiveness of its leniency programme. Those specific interests are not peculiar to the undertaking concerned, with the result that it is for the Commission alone to balance, in the circumstances of the case at hand, the effectiveness of the leniency programme, on the one hand, and the interest of the public and of economic operators in knowing the content of its decision and taking action in order to protect their rights, on the other.

That conclusion cannot be called into question by the argument that, in essence, the information in respect of which the undertaking sought confidential treatment is not essential for understanding the operative part of the Commission decision finding a breach of EU competition law and therefore does not fall within the scope of the Commission’s obligation to publish under Article 30(2) of Regulation No 1/2003. That provision is not designed to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is more complete than the minimum necessary and so to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy.

(see paras 83-85, 87-90)

8.      In adopting rules of conduct such as those contained in the 2002 and 2006 Leniency Notices and announcing, by publishing them, that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of a breach of general principles of law, such as equal treatment or the protection of legitimate expectations. However, those notices do not create a prohibition on the Commission, in any circumstances, from making public information contained in leniency applications or statements made in the context of the leniency programme. The various commitments contained in those notices concern only the disclosure of documents which were voluntarily submitted by undertakings seeking to benefit from the leniency programme and statements made by those undertakings in the same context.

(see paras 104, 106, 108)

9.      Although the principle of the protection of legitimate expectations is one of the fundamental principles of EU law, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by EU institutions in the exercise of their discretion will be maintained.

In that regard, an undertaking which has participated in an infringement of the EU competition rules cannot have any legitimate expectation in the maintenance of an earlier practice of the Commission consisting in not disclosing information communicated to it voluntarily by undertakings in the context of leniency requests and of which those undertakings sought confidential treatment.

The Commission enjoys a broad margin of discretion in determining whether or not to publish such information. Article 30(2) of Regulation No 1/2003 limits the Commission’s obligation to publish to setting out the parties concerned and the main content of the decisions referred to in the first paragraph of that provision with a view to facilitating the Commission’s task of informing the public of such decisions, having regard inter alia to the linguistic constraints connected with publication in the Official Journal of the European Union. Conversely, that provision does not limit the Commission’s power to publish the full text, or at the very least, a highly detailed version of its decisions, if, resources permitting, it considers it appropriate to do so, subject to the protection of business secrets and other confidential information.

Whilst the Commission therefore has a general obligation to publish only non-confidential versions of its decisions, it is not necessary, to ensure compliance with that obligation, to interpret Article 30(2) of Regulation No 1/2003 as conferring a specific right on addressees of decisions adopted under Articles 7 to 10, 23 and 24 of that regulation whereby they may prevent publication by the Commission in the Official Journal, and, where relevant, on the Commission’s website, of information which, though not confidential, is not essential for understanding the operative part of those decisions. Thus, the aim of Article 30(2) of Regulation No 1/2003 is not to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is more complete than the minimum necessary and to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy.

(see paras 120, 122-124)