Keywords
Summary

Keywords

1. Actions for annulment ° Acts against which proceedings may be brought ° Acts affecting the applicant' s legal situation ° Commission decision allowing use, in national legal proceedings, of documents from an administrative procedure in a competition case

(EC Treaty, Art. 173)

2. Competition ° Administrative procedure ° Information obtained by the Commission under Regulation No 17 ° Use ° Limits ° Commission' s obligation to prohibit the use of such information in national legal proceedings ° None ° Principle of sincere cooperation between the Member States and Community institutions ° Inapplicability of Regulation No 17 to cooperation between the Commission and national courts ° Obligation of national courts to safeguard rights deriving from the direct effect of Articles 85(1) and 86 of the Treaty ° Protection of confidential information and business secrets guaranteed by the national courts

(EC Treaty, Arts 5, 85(1) and 86; Regulation No 17 of the Council, Art. 20(1))

3. Community law ° Principles ° Rights of the defence ° Use, in legal proceedings, of information obtained by the Commission under Regulation No 17 ° Infringement ° None

(Regulation No 17 of the Council)

4. Competition ° Administrative procedure ° Professional secrecy ° Information obtained by the Commission under Regulation No 17 ° Confidential information and business secrets ° Transmission to national judicial authorities ° Precautions to be taken by the Commission ° Legitimate grounds for refusal

(EC Treaty, Art. 214; Regulation No 17 of the Commission, Art. 20(2))

Summary

1. A letter by which the Commission removes the prohibition, mentioned when the statement of objections was sent to undertakings which were participating, but were not formal complainants, in a proceeding before the Commission, on using that document in national legal proceedings and by which it also gives its view as to the lack of any obstacle to production, in the national court, of that statement of objections and the minutes of the subsequent hearing, is in the nature of a decision. It directly affects the interests of an undertaking belonging to an association of undertakings to which that statement of objections was sent and may therefore be the subject of an action for annulment brought by that undertaking. In that respect, it is of little importance that that undertaking is not a party to the national legal proceedings since production of those documents in such proceedings involves the forwarding of information, which in some cases is confidential, on the same basis as production thereof in national proceedings to which it is a party.

2. Article 20(1) of Regulation No 17, which prohibits the use of information obtained under Articles 11 to 14 of that regulation for a purpose other than that for which it was requested, must be interpreted in the light of the principle of sincere cooperation embodied in Article 5 of the Treaty. That principle requires the Community institutions, and above all the Commission, which is entrusted with the task of ensuring application of the provisions of the Treaty, to give active assistance to any national judicial authority dealing with an infringement of Community rules. That assistance, which takes various forms, may, where appropriate, consist in disclosing to the national courts documents acquired by the institutions in the discharge of their duties.

Such cooperation between the Commission and the national courts falls outside the scope of Regulation No 17. Consequently, Article 20(1) of that regulation cannot be interpreted as imposing on the Commission an obligation to prohibit undertakings from producing documents from the administrative procedure in national legal proceedings.

Interpretation of that paragraph in such a manner as to prohibit any use by the national court of the information obtained would also undermine the rights of litigants deriving from the direct effect of Articles 85(1) and 86 of the Treaty in relations between individuals which the national courts must safeguard. The requirement of providing protection for undertakings having an interest in non-disclosure of confidential information, in particular business secrets, cannot override the right of undertakings in possession of such information to argue their case in national legal proceedings.

Moreover, such a prohibition is not necessary to protect confidential information and business secrets. Once such documents from the administrative procedure are produced in national legal proceedings, there is a presumption that the national courts will guarantee the protection of confidential information, in particular business secrets, since, in order to ensure the full effectiveness of the provisions of Community law in accordance with the principle of cooperation laid down in Article 5 of the Treaty, those authorities are required to uphold the rights which those provisions confer on individuals.

3. Even if production by one of the parties to those proceedings of documents containing information obtained in a Commission administrative procedure in a competition case is capable of weakening the position of the undertakings to which the information relates, it is nevertheless for the national court to guarantee, on the basis of national rules of procedure, that the rights of defence of such undertakings are protected. In that connection, the national court may inter alia take account of the provisional nature of the opinion expressed by the Commission in the statement of objections and of the possibility of suspending the national proceedings pending adoption by the Commission of a final position.

The production of the documents at issue would not undermine the rights of defence of the undertaking concerned in the administrative procedure. The transmission of the documents concerned, in particular the statement of objections, to the national judicial authorities has no impact on the administrative procedure since the undertakings concerned are not thereby deprived of the right to be informed and heard by the Commission regarding all the matters of fact and law contained in those documents.

4. Article 214 of the Treaty and Article 20(2) of Regulation No 17 do not require the Commission to prohibit third parties from producing, in national legal proceedings, documents received in the procedure before the Commission which contain confidential information and business secrets.

Article 20(2) of Regulation No 17 is inapplicable to direct and indirect cooperation between the Commission and the national judicial authorities, which falls outside the scope of that regulation. Also, Article 214 of the Treaty, which prohibits all officials and employees of the institutions from disclosing confidential information and business secrets to third parties, cannot be interpreted as meaning that, by virtue of its obligation to observe professional secrecy, the Commission is required to prohibit undertakings from producing to national courts any documents received in the course of the administrative procedure. Such an interpretation might compromise cooperation between the national judicial authorities and the Community institutions, as provided for by Article 5 of the Treaty, and above all detract from the right of economic agents to effective judicial protection.

However, when faced with a request from an undertaking for authority to produce to national courts documents containing confidential information and business secrets, the Commission is required to take all necessary precautions, including, where appropriate, those of a procedural nature, to ensure that the entitlement of the undertakings concerned to protection of that information is not undermined by or during the transmission of the documents to the national courts. Such precautions may include, in particular, informing the latter of the documents or passages of documents which contain confidential information or business secrets. It is then the responsibility of the national court to guarantee protection of the confidentiality of such information or business secrets.

In particular, in a case where, during the administrative procedure, the undertakings concerned gave notice of the existence of business secrets, the Commission must give those undertakings an opportunity to state their views. It must in particular give them an opportunity both to point out the passages in the documents of which the transmission to the national court might cause it damage if no precautions were taken, and to indicate the nature and scope of that damage.

The Commission may refuse to disclose documents to national judicial authorities only in exceptional circumstances where protection of the rights of third parties and the functioning and independence of the Community could not be fully ensured even if the Commission took all the abovementioned precautions.