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Language of document : ECLI:EU:T:2015:505

Case T‑465/12

(publication by extracts)

AGC Glass Europe SA and Others

European Commission

(Competition — Administrative procedure — European automotive glass market — Publication of a decision finding an infringement of Article 81 EC — Rejection of a request for confidential treatment of information the Commission intends to publish — Obligation to state reasons — Confidentiality — Obligation of professional secrecy — Leniency programme — Legitimate expectations — Equal treatment)

Summary — Judgment of the General Court (Third Chamber), 15 July 2015

1. Competition — Administrative procedure — Professional secrecy — Hearing officer — Competence — Scope and limits

(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 28(2); Commission Decision 2011/695, Art. 8)

2. Competition — Administrative procedure — Cooperation of the undertakings concerned — Information provided to the Commission voluntarily in order to benefit from the leniency programme — No impact on the civil consequences of participation in the infringement

(Arts 101 TFEU, 102 TFEU and 339 TFEU; Council Regulation No 1/2003, Art. 30(2); Commission Notices 2002/C 45/03 and 2006/C 298/11)

3. 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 — Leniency notices — Scope — No prohibition on publicising information contained in requests for leniency

(Arts 101 TFEU, 102 TFEU and 339 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4; Commission Regulation No 1/2003, Art. 30(2); Commission Notices 2002/C 45/03 and 2006/C 298/11, points 6, 31 to 35)

1. According to Article 8(2) of Decision 2011/695 on the function and terms of reference of the hearing officer in certain competition proceedings, the intervention of the Hearing Officer consists in applying the rules which protect undertakings by reason of the confidentiality of the information concerned. The intervention of the Hearing Officer serves therefore to add a phase of supplementary review by a body independent of the Commission. That organ is, in addition, obliged to defer the date when its decision takes effect, thereby giving the undertaking concerned the opportunity to bring a case before the court responsible for hearing applications for interim relief in order to have the decision suspended when the relevant conditions are met.

Consequently, a distinction must be made between the application of legal rules relating to the confidentiality of the information as such, on the one hand, and the legal rules relied on with the objective of obtaining confidential treatment of the information irrespective of whether that information is inherently confidential, on the other. In that regard, even if publication of an item of information not covered by the obligation of professional secrecy might constitute an infringement of a rule falling within the second of the two abovementioned categories, that does not render the protection conferred by the rules relating to professional secrecy illusory. Such an infringement, if it were to be established, can give rise to adequate remedies, such as damages, if the conditions governing non-contractual liability of the Union are met. Accordingly, an analysis of the substance of the arguments relating to that category of rules is outside the objectives pursued by the terms of reference conferred on a hearing officer under Article 8 of Decision 2011/695.

(see para. 59)

2. It is clear from the 2002 Leniency Notice and from the 2006 Leniency Notice that the sole aim of those notices is to establish the conditions under which an undertaking may obtain either immunity from a fine or a reduction in the amount of the fine. Those notices thus concern only the amount of fines and do not provide for any other advantage which an undertaking can claim in exchange for its cooperation. The rules provide that the fact that immunity or reduction in respect of fines is granted cannot protect an undertaking from the civil law consequences of its participation in an infringement of Article 101 TFEU.

The aim of the 2002 and 2006 Leniency Notices is to give effect to a policy of differentiating between the addressees of a decision finding an infringement of Article 101 TFEU according to the degree to which each of them cooperates, solely with regard to amount of the fine. Therefore, the notices concerned are not intended to affect the consequences under civil law of participation by the undertakings which apply for leniency in an infringement.

(see paras 66, 67, 73)

3. It is clear from point 6 of the 2006 Leniency Notice that an undertaking should not be placed at a disadvantage with regard to civil litigation which may be brought against them solely because it voluntarily submitted in writing to the Commission a leniency statement, which could be the subject of a court decision ordering discovery of documents. In the context of that desire to provide quite specific protection for leniency statements, the Commission imposed on itself, in points 31 to 35 of the 2006 Leniency Notice, specific rules governing the form of those statements, access to them and their use. Those rules concern exclusively the documents and statements, written or recorded, received in accordance with the 2002 or 2006 Leniency Notices, the disclosure of which is in general considered by the Commission to undermine the protection of the purpose of inspections and investigations within the meaning of Article 4 of Regulation No 1049/2001, as stated in points 32 and 40 of those notices. It is therefore neither the intention nor the effect of those rules that the Commission should be prevented from publishing, in its decision bringing the administrative procedure to an end, the information relating to the description of the infringement which was submitted to it as part of the leniency programme, and those rules give rise to no legitimate expectation in that regard.

Accordingly, such publication, made pursuant to Article 30 of Regulation No 1/2003 and, as is apparent from the examination of the sixth plea in law, with due regard for the obligation of professional secrecy, does not frustrate the legitimate expectation which the applicants can claim under the 2002 and 2006 Leniency Notices, which concerns the calculation of the amount of the fine and the treatment of the documents and statements specifically referred to.

Correspondingly, Article 4 of Regulation No 1049/2001 concerns access to the documents which are part of the investigation file, but is not concerned with the decision adopted by the Commission at the end of the administrative procedure, the content of that decision being defined by Article 30 of Regulation No 1/2003. Accordingly, Article 4 of Regulation No 1049/2001 cannot give rise to any legitimate expectation on the part of the applicants as to the content of the public version of the decision concerned.

(see paras 70-72)