Case C‑162/15 P

Evonik Degussa GmbH

v

European Commission

(Appeal — Competition — Articles 101 TFEU and 102 TFEU — Regulation (EC) No 1/2003 — Article 30 — Commission decision finding an illegal cartel on the European hydrogen peroxide and perborate market — Publication of an extended non-confidential version of that decision — Rejection of a request for confidential treatment of certain information — Terms of reference of the hearing officer — Decision 2011/695/EU — Article 8 — Confidentiality — Protection of professional secrecy — Article 339 TFEU — Concept of ‘business secrets or other confidential information’ — Information from a request for leniency — Rejection of the request for confidential treatment — Legitimate expectations)

Summary — Judgment of the Court (Grand Chamber), 14 March 2017

1. Competition—Administrative procedure—Professional secrecy—Decision of the hearing officer concerning disclosure of a Commission decision penalising an infringement of the competition rules—Obligations of the hearing officer—Extent and limits

   (European Parliament and Council Regulations No 45/2001 and No 1049/2001; Commission Decision 2011/695, Art. 8)

2. Competition—Administrative procedure—Professional secrecy—Establishing whether information is covered by professional secrecy—Historic information—Not included—Information which cannot be regarded as secret or confidential

   (Arts 101 TFEU and 339 TFEU)

3. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Scope—Application to administrative files relating to procedures for reviewing compliance with the competition rules—General presumption that the disclosure of certain documents from such files undermines protection of the interests involved in such a procedure—Transposition of the presumption to the publication of decisions finding an infringement of the competition rules—Not included

   (Arts 101 TFEU and 102 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4; Council Regulation No 1/2003, Art. 30)

4. Competition—Administrative procedure—Commission decision finding an infringement—Publication of information provided to the Commission voluntarily by an undertaking, which had participated in the infringement, in order to benefit from the leniency programme—Whether permissible—Publication of verbatim quotations of a statement made with a view to obtaining leniency—Not permissible

   (Arts 101 TFEU and 339 TFEU; Council Regulation No 1/2003, Arts 23 and 30)

5. Competition—Administrative procedure—Commission decision finding an infringement—Publication of information provided to the Commission voluntarily by an undertaking, which had participated in the infringement, in order to benefit from the leniency programme—Infringement of the rights of the undertaking concerned under the Leniency Notice—None

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 30; Commission communication 2002/C 45/03)

1.  The aim of Article 8 of Decision 2011/695, on the function and terms of reference of the hearing officer in certain competition proceedings, is to provide, on a procedural level, for the protection of information required by EU law which has come to the Commission’s knowledge in the context of proceedings applying the competition rules. That protection must be understood as relating to any ground which could justify protecting the confidentiality of the contested information.

   It follows that the grounds which may restrict the disclosure of information, such as that communicated by an undertaking to the Commission with a view to obtaining leniency from it, are not restricted to those arising solely from the rules intended to afford specific protection against disclosure to the public of that information and that the hearing officer must, therefore, examine any objection based on a ground, arising from rules or principles of EU law, relied on by the interested person in order to claim protection of the confidentiality of the contested information. The scope of Article 8(2) of Decision 2011/695 would be considerably reduced if that provision had to be interpreted as allowing the hearing officer to take into account only those rules intended to afford specific protection against disclosure of the information to the public, such as the rules in Regulation No 45/2001, on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, or in Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents.

   (see paras 51, 54, 55)

2.  Information which was secret or confidential, but which is over five years old must as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes essential elements of its commercial position or that of interested third parties. Those considerations, which give rise to a rebuttable presumption, are valid both in the context of requests for confidential treatment in respect of parties intervening in actions before the EU Courts and in the context of requests for confidentiality with a view to the publication by the Commission of a decision finding an infringement of competition law.

   (see para. 64)

3.  In the light of the differences between the system of third-party access to the Commission’s file in cases pursuant to Articles 101 TFEU and 102 TFEU and the system relating to the publication of infringement decisions, the rules derived from case-law restricting the conditions in which the Commission may, under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, disclose to third parties documents in that file, cannot be transposed to the context of the publication of infringement decisions.

   The publication of a non-confidential version of a decision finding an infringement of Article 101 TFEU is provided for in Article 30 of Regulation No 1/2003. That provision reflects considerations concerning the effectiveness of the application of EU competition law in so far as, in particular, such publication enables victims of infringements of Article 101 TFEU to be provided with support during their actions for damages against those who have committed those infringements. Those different interests must, however, be weighed against the protection of rights conferred by EU law, in particular, on the undertakings concerned, such as the right to protection of professional secrecy or business secrecy, or on the individuals concerned, such as the right to the protection of personal data.

   (see paras 77-79)

4.  The publication, in the form of verbatim quotations, of information from the documents provided by an undertaking to the Commission in support of a statement made in order to obtain leniency differs from the publication of verbatim quotations from that statement itself. Whereas the first type of publication should be authorised, subject to compliance with the protection owed, in particular, to business secrets, professional secrecy and other confidential information, the second type of publication is not permitted in any circumstances.

   (see para. 87)

5.  Consequently, the only protection available to an undertaking which has cooperated with the Commission in the context of a proceeding under Article 101 TFEU is the protection concerning (i) the immunity from or reduction in the fine in return for providing the Commission with evidence of the suspected infringement which represents significant added value with respect to the information already in its possession and (ii) the non-disclosure by the Commission of the documents and written statements received by it in accordance with the notice on immunity from fines and reduction of fines in cartel cases.

   Therefore, publication under Article 30 of Regulation No 1/2003 in compliance with the protection of professional secrecy does not undermine the protection which an undertaking may claim under the 2002 Leniency Notice, since that protection can relate only to the determination of the fine and the treatment of the documents and statements specifically targeted by that notice.

   (see paras 97, 98)