Short Reads

Court of Justice rules on the Hearing Officer's competence to resolve confidentiality requests

Court of Justice rules on the Hearing Officer's competence to resolve

Court of Justice rules on the Hearing Officer's competence to resolve confidentiality requests

04.04.2017 NL law

On 14 March 2017, the Court of Justice ruled on an action brought by Evonik Degussa ("Evonik") against the publication of an extended non-confidential version of the hydrogen peroxide cartel decision. This judgment clarifies the Hearing Officer's competence to decide on confidentiality claims and provides guidance on the type of information the European Commission may disclose in a public decision.

In 2007, the Commission published a first non-confidential version of the decision in which information originating from Evonik's leniency application was redacted. In 2011, the Commission informed Evonik that it intended to publish a more extensive version of this decision. Evonik objected to this, arguing that the information from its leniency application should remain confidential. The Commission's Hearing Officer rejected Evonik's request as it had failed to show that disclosing this information would cause it "serious harm". Moreover, the Hearing Officer considered that he was not competent to rule on Evonik's claim that disclosing this information would also breach the principles of legitimate expectations and equal treatment.

In 2012, Evonik brought an action before the General Court against the rejection of its request for confidential treatment. The General Court rejected the appeal in its entirety [see our February 2015 Newsletter]. In 2015, Evonik appealed this judgment before the Court of Justice.

The Hearing Officer's competence to decide on confidentiality claims

The Court of Justice ruled that the Hearing Officer must examine any objection "relied on by the interested person in order to claim protection of the confidentiality of the contested information." This includes grounds arising from general rules or principles of EU law and therefore it is not limited to the specific rules intended to afford protection against disclosure.

The Court therefore upheld Evonik's appeal on this ground and annulled the Hearing Officer's decision in so far as it declined its competence to review Evonik's claim on this point.

The confidential treatment of leniency statements

The Court dismissed the remaining grounds of appeal concerning (i) whether the information originating from Evonik's leniency application was confidential and (ii) whether such information should be protected against publication on other grounds. Interestingly, the Court clarified that the case-law relating to third-party access to the documents in the Commission's file (the "Transparency Regulation") cannot be relied upon to contest the publication of information in an infringement decision. In addition, the Court confirmed that while the publication of verbatim quotations from a leniency statement is never allowed, the Commission is allowed – subject to compliance with the rules on protecting business secrets and professional secrecy – to disclose verbatim quotations from documents which support a leniency statement.

The judgment confirms that the Commission has a broad margin of discretion in determining what information will be disclosed in the public version of an infringement decision. Leniency statements may enjoy special protection in this regard, although the merits of confidentiality claims will be critically reviewed by both the Commission and the courts.

This article was published in the Competition Law Newsletter of April 2017. Other articles in this newsletter:

  1. Court of Justice confirms the fine imposed on Samsung in the cathode ray tubes cartel
  2. General Court annuls European Commission's merger blocking decision in UPS/TNT for procedural errors 
  3. European Commission proposes a new Directive to empower national competition authorities to be more effective enforcers of EU competition law rules
  4. European Commission launches anonymous whistleblower tool
  5. District Court of Gelderland denies passing-on defense in antitrust litigation related to the GIS-

Team

Related news

02.07.2020 NL law
European Commission to pull the strings of foreign subsidies

Short Reads - The European Commission is adding powers to its toolbox to ensure a level playing field between European and foreign(-backed) companies active on the EU market. On top of merger control and Foreign Direct Investment screening obligations, companies may also need to account for future rules allowing scrutiny of subsidies granted by non-EU governments if those subsidies might distort the EU Single Market.

Read more

04.06.2020 NL law
Please share – ACM conditionally clears shared mobility platform merger

Short Reads - There may soon be a new competition tool available to tackle structural competition concerns in dynamic tech and platform markets. Until then, competition authorities resort to existing tools to deal with these markets. The Dutch competition authority (ACM) recently subjected the merger of two emerging platforms – without significant market footprint – to behavioural remedies. On 20 May 2020, the ACM cleared the merger between the travel apps of Dutch rail operator NS and transport company Pon.

Read more

04.06.2020 NL law
No proof of competitive disadvantage? No abusive favouritism

Short Reads - Companies claiming abuse of dominance in civil proceedings have their work cut out for them, as demonstrated by a ruling of the Amsterdam Court of Appeal. Real estate association VBO had accused dominant online platform Funda of favouritism. However, in line with the District Court’s earlier ruling, the Appeal Court dismissed the claim for insufficient evidence of negative effects on competition. The ruling confirms that the effect-based approach also applies in civil abuse claims, and that the standard of proof is high.    

Read more

02.07.2020 NL law
New competition tool: something old, something new, something borrowed

Short Reads - Large online platforms may face more regulatory obligations, whilst non-dominant companies’ unilateral conduct may soon be curbed. The European Commission intends to tool up its kit by adding a new regulation to keep digital gatekeepers in check, as well as providing more clarity on how to define digital markets in its new Market Definition Notice.

Read more

04.06.2020 NL law
Not so fast – General Court clarifies merger control test

Short Reads - There is no magical number when it comes to “4-to-3” telecom mergers. On 28 May 2020, the EU’s General Court (“Court”) handed down a landmark judgment annulling a 2016 decision of the European Commission (“Commission”) blocking the merger between O2 UK and Three. The judgment fine-tunes the Commission’s application of the “significant impediment to effective competition” test for horizontal mergers and raises the bar for proving the removal of an “important competitive force” as a result of the merger.  

Read more