13.10.2012   

EN

Official Journal of the European Union

C 311/9

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Annul Commission Decision C(2012) 3534 final of 24 May 2012 concerning the refusal of a request by Evonik Degussa for confidential treatment of information in the decision in Case COMP/F/38.620 — Hydrogen Peroxide and Perborate, in accordance with the fourth paragraph of Article 263 TFEU;

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order the Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure of the General Court.

1.

First plea in law, alleging infringement of Article 8 of the terms of reference of the hearing officer, (1) and of the applicant’s right to good administration and its right to be heard

The applicant submits that the hearing officer did not examine its fundamental objections to publication, thereby failing to have regard to the scope of his powers and obligations, and infringing Article 8 of the terms of reference. Since neither the hearing officer nor any other Commission officer examined or took into consideration the applicant’s fundamental objections to the planned publication, the applicant takes the view that the Commission failed to investigate all relevant aspects of the particular case, thereby breaching the principles of good administration and of an effective hearing (Article 41(1) of the Charter of Fundamental Rights of the European Union).

2.

Second plea in law, alleging breach of the duty to state reasons

The applicant submits that the contested decision does not contain any statement of reasons in relation to the applicant’s objections to the publication of the extended version of the decision. The same applies as regards the Commission’s reasons and the public interest in the publication of the extended version almost five years after the original non-confidential version was issued.

3.

Third plea in law, alleging errors of law and of assessment by virtue of breach of the obligation of professional secrecy under Article 339 TFEU and Article 8 of the European Convention on Human Rights, and failure to have regard to the confidentiality of the information to be published.

4.

Fourth plea in law, alleging breach of the applicant’s legitimate expectations and of the principle of legal certainty

The applicant submits that the Commission breached the principle of the protection of legitimate expectations when it refused the request for confidential treatment and decided to publish the contested version of the decision. Since making its applications for leniency the applicant has trusted in the confidentiality of the information transmitted. That trust is based on the leniency notices and the Commission’s established practice and, in the applicant’s view, merits protection. The principle of legitimate expectations is also breached by virtue of the fact that the Commission had already published a final non-confidential version of the decision in 2007, in respect of which it had accepted the applicant’s wishes concerning text to be omitted. The applicant submits that there is no basis in law or in fact for a subsequent modification of that decision.

5.

Fifth plea in law, alleging breach of the specific purpose requirement

In the context of this plea the applicant submits that the use — for the purpose of informing the public — of information provided by leniency applicants is contrary to the specific purpose of that information provided for in Article 28(1) of Regulation No 1/2003 and paragraph 48 of the Commission’s Notice on access to the file. (5) That is particularly the case where that use has occurred more than six years after the end of the administrative procedure.