Keywords
Summary

Keywords

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1. Competition ° Administrative procedure ° Information obtained by the Commission pursuant to Regulation No 17 ° Transmission to the competent authorities of the Member States ° Observance of professional secrecy ° Obligation on the authorities of the Member States to observe the confidentiality of the information transmitted by the Commission ° Extent ° Limits

(Council Regulation No 17, Arts 10 and 20)

2. Appeals ° Pleas in law ° Grounds of a judgment disclosing a breach of Community law ° Operative part well founded for other reasons of law ° Dismissal

3. Competition ° Administrative procedure ° Protection of business secrets ° Whether valid as against the national authorities ° Powers of assessment of the Commission ° Rights of the undertaking concerned ° Right to effective judicial protection ° Possibility of relying on the protection of business secrets against a decision ordering a document to be produced to the Commission ° None

(EEC Treaty, Art. 214; Council Regulation No 17, Arts 10, 11 and 20)

Summary

1. Although, in the context of the procedure for the application of the rules on competition, the Commission is obliged under Article 10 of Regulation No 17 to transmit to the competent authorities of the Member States copies of the most important documents lodged with it, those authorities are obliged under Article 20 of that regulation not to disclose information which is acquired by them as a result of the application of that regulation and which is of the kind covered by the obligation of professional secrecy. That prohibition of disclosure does not, however, guarantee that the information in question will not be taken into consideration by the authorities which receive it or their officials who learn of it in the performance of their duties. The procedural safeguard given to undertakings by the fact that the authorities cannot use the information received by them for a purpose other than that for which it has been obtained may not go so far as to call for the information transmitted to be actually ignored.

In a case where the Commission has ordered the production of a contract between undertakings and where the Member State to which it is to be communicated is the supervisory authority of a third undertaking which is a competitor of one of the undertakings which are parties to the contract, the restriction imposed by Article 20 of the regulation on the use of the information received could not avert the irreversible consequences of the mere knowledge of the terms of business laid down in the contract. The national authorities who had legitimately consulted the contract could not effectively be required to disregard those terms if it fell to them to determine the commercial policy of the competing undertaking supervised by them. Article 20 therefore does not constitute an effective safeguard for the undertaking in question.

2. If the grounds of a judgment of the Court of First Instance disclose a breach of Community law but the operative part appears well founded for other reasons of law, the appeal must be dismissed.

3. Although, in the context of the procedure for the application of the rules on competition, the Commission is obliged under Article 10 of Regulation No 17 to transmit to the competent authorities of the Member States copies of the documents it considers to be the most important of those lodged with it, that obligation may be limited by the general principle of the right of undertakings to protection of their business secrets, a principle which finds expression in Article 214 of the Treaty and in various provisions of the said regulation. That may be the case where an undertaking raises before the Commission the confidential nature of a document as against the competent national authorities and that argument is not irrelevant.

Consequently, it is for the Commission to judge whether or not a particular document contains business secrets. After giving the undertaking an opportunity to state its views, it 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 the improper communication of documents, if the Commission wishes to transmit a document to the national authorities notwithstanding the claim that that document is of a confidential nature with respect to those authorities, it 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 the contested disclosure.

It is therefore in an action for the annulment of such a decision, and not in an action brought against the decision under Article 11 of the regulation ordering the document to be produced to the Commission, that the undertaking might effectively rely on its right to protection of its business secrets, since the obligation to produce the document does not necessarily mean that it can be transmitted to the competent national authorities.