Keywords
Summary

Keywords

1 . ACTION FOR ANNULMENT - MEASURES IN RESPECT OF WHICH AN ACTION MAY BE BROUGHT - COMMISSION DECISION ADOPTED IN CONNECTION WITH THE APPLICATION OF THE RULES ON COMPETITION AND REFUSING TO TREAT DOCUMENTS FURNISHED BY AN UNDERTAKING AS CONFIDENTIAL - INTEREST OF THE UNDERTAKING CONCERNED IN BRINGING AN ACTION

( EEC TREATY , ART . 173 )

2 . COMPETITION - ADMINISTRATIVE PROCEDURE - PROFESSIONAL SECRECY - MITIGATION - LIMITS - PROTECTION OF BUSINESS SECRETS - WHETHER VALID AS AGAINST A THIRD PARTY WHO HAS MADE A COMPLAINT

( EEC TREATY , ART . 214 ; COUNCIL REGULATION NO 17 , ARTS 19 , 20 ( 2 ) AND 21 )

3 . COMPETITION - ADMINISTRATIVE PROCEDURE - PROTECTION OF BUSINESS SECRETS - POWERS OF ASSESSMENT OF THE COMMISSION - RIGHTS OF THE UNDERTAKING CONCERNED - RIGHT TO EFFECTIVE JUDICIAL PROTECTION

( EEC TREATY , ARTS 173 AND 185 ; COUNCIL REGULATION NO 17 )

Summary

1 . A DECISION ADOPTED IN CONNECTION WITH A PROCEDURE FOR THE APPLICATION OF THE RULES ON COMPETITION IN WHICH THE COMMISSION CONSIDERED THAT DOCUMENTS FURNISHED BY AN UNDERTAKING DID NOT QUALIFY FOR THE CONFIDENTIAL TREATMENT GUARANTEED BY COMMUNITY LAW AND COULD THEREFORE BE COMMUNICATED TO A THIRD PARTY WHO HAD MADE A COMPLAINT IS DEFINITIVE IN NATURE AND INDEPENDENT OF THE DECISION ON THE QUESTION WHETHER THERE HAS BEEN AN INFRINGEMENT . SINCE IT HAS LEGAL EFFECT IN RELATION TO THE UNDERTAKING IN QUESTION AND IS OF SUCH A NATURE AS TO BRING ABOUT A CLEAR ALTERATION IN THAT UNDERTAKING ' S LEGAL POSITION AND TO AFFECT ITS INTERESTS , SUCH A DECISION MAY BE CHALLENGED BY THE SAID UNDERTAKING BY WAY OF AN ACTION FOR ANNULMENT UNDER ARTICLE 173 . THE APPLICANT ' S INTEREST IN BRINGING AN ACTION CANNOT BE DENIED ON THE GROUND THAT THE DECISION HAD ALREADY BEEN IMPLEMENTED AT THE TIME WHEN THE ACTION WAS BROUGHT . THE ANNULMENT OF SUCH A DECISION IS OF ITSELF CAPABLE OF HAVING LEGAL CONSEQUENCES , IN PARTICULAR BY PREVENTING A REPETITION BY THE COMMISSION OF THE IMPROPER COMMUNICATION OF CONFIDENTIAL DOCUMENTS AND BY RENDERING UNLAWFUL THE USE BY THE THIRD PARTY WHO HAS MADE THE COMPLAINT OF ANY DOCUMENTS IMPROPERLY COMMUNICATED TO IT .

2 . ALTHOUGH CERTAIN PROVISIONS OF REGULATION NO 17 MAKE IT POSSIBLE , IN CONNECTION WITH THE PROCEDURE FOR THE APPLICATION OF THE RULES ON COMPETITION , TO MITIGATE IN CERTAIN CIRCUMSTANCES THE OBLIGATION OF PROFESSIONAL SECRECY LAID DOWN IN ARTICLE 214 OF THE EEC TREATY , ESPECIALLY IN REGARD TO A THIRD PARTY WHO HAS MADE A COMPLAINT , WHERE COMMUNICATION OF CERTAIN INFORMATION COVERED BY PROFESSIONAL SECRECY IS NECESSARY FOR THE PROPER CONDUCT OF THE INVESTIGATION , REGARD MUST BE HAD TO THE LEGITIMATE INTEREST OF UNDERTAKINGS IN THE PROTECTION OF THEIR BUSINESS SECRETS . IT WOULD BE CONTRARY TO THE GENERAL PRINCIPLE WHICH APPLIES DURING THE COURSE OF THE ADMINIS TRATIVE PROCEDURE AS A WHOLE TO GIVE A THIRD PARTY WHO HAS SUBMITTED A COMPLAINT ACCESS TO DOCUMENTS CONTAINING BUSINESS SECRETS .

3 . IT IS FOR THE COMMISSION , IN CONNECTION WITH THE PROCEDURE FOR THE APPLICATION OF THE RULES ON COMPETITION , TO ASSESS WHETHER OR NOT A PARTICULAR DOCUMENT CONTAINS BUSINESS SECRETS . AFTER GIVING THE UNDERTAKING AN OPPORTUNITY TO STATE ITS VIEWS , THE COMMISSION IS REQUIRED TO ADOPT A DECISION IN THAT CONNECTION WHICH CONTAINS AN ADEQUATE STATEMENT OF THE REASONS ON WHICH IT IS BASED AND WHICH MUST BE NOTIFIED TO THE UNDERTAKING CONCERNED . HAVING REGARD TO THE EXTREMELY SERIOUS DAMAGE WHICH COULD RESULT FROM IMPROPER COMMUNICATION OF DOCUMENTS TO A COMPETITOR , THE COMMISSION MUST , BEFORE IMPLEMENTING ITS DECISION , GIVE THE UNDERTAKING AN OPPORTUNITY TO BRING AN ACTION BEFORE THE COURT WITH A VIEW TO HAVING THE ASSESSMENTS MADE REVIEWED BY IT AND TO PREVENTING , BY THE MEANS OF REDRESS PROVIDED BY ARTICLE 173 IN CONJUNCTION WITH ARTICLE 185 OF THE EEC TREATY , THE DISCLOSURE OF THE DOCUMENTS IN QUESTION .