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

07.10.2021 NL law
Commission’s record fine for gun jumping upheld

Short Reads - Pre-closing covenants protecting the target’s value or commercial integrity pending merger clearance from the European Commission must be drafted carefully. The General Court confirmed the Commission’s record-breaking fines on Altice for violating the EU Merger Regulation’s notification and standstill obligations. According to the General Court, the mere possibility of exercising decisive influence over the target can result in a gun jumping breach.

Read more

07.10.2021 NL law
ACM walks the walk: first-ever vertical price coordination fine

Short Reads - The Dutch Competition Authority (“ACM”) has claimed a first victim in its vertical restraints battle. Samsung Electronics was fined nearly EUR 40 million for having meddled in the online resale prices for televisions at seven retailers. Compared to the European Commission’s fines on four consumer electronics producers for resale price maintenance (“RPM”), the ACM’s summary decision seems to refer to a ‘light’ version of RPM: systematic price coordination without any threats, sanctions or incentives for the retailers to stick to the price.

Read more

07.10.2021 NL law
Commission reveals first piece of antitrust sustainability puzzle

Short Reads - The European Commission has published a Policy Brief setting out its preliminary views on how to fit the European Green Deal’s sustainability goals into the EU competition rules. Companies keen to be green may be left in limbo by a looming clash with more far-reaching proposals from national competition authorities. More pieces of the antitrust sustainability puzzle will fall into place as soon as the ongoing review of the guidelines on horizontal cooperation is finalised.

Read more

13.09.2021 NL law
Adopting the new Standard Contractual Clauses to secure international personal data transfers

Short Reads - Recently, the European Commission issued an implementing decision on standard new contractual clauses (“SCCs”) for the transfer of personal data to countries outside the European Economic Area. Organisations need to use the new SCCs from 27 September 2021 and onwards. Transitional periods apply for existing international data transfer agreements. To meet their obligations under the General Data Protection Regulation, organisations need to make the appropriate changes in time.

Read more

07.10.2021 NL law
Court of Appeal provides guidance for further course of proceedings in prestressing steel litigation

Short Reads - On 27 July 2021, the Court of Appeal of Den Bosch issued an interim judgment in the Dutch prestressing steel litigation, ruling on three issues: (i) the obligation of claimant to furnish facts; (ii) the assignment of claims; and (iii) the liability of the parent companies. In short, the Court of Appeal allowed the claimant Deutsche Bahn another opportunity to supplement the facts needed to substantiate its claims in the next phase of the proceedings.

Read more

09.09.2021 BE law
Digital Law Up(to)date: (1) Parliamentary initiatives about cyber attacks; (2) ‘Zero tariff’ options before the CJEU; and (3) Council of State, GDPR and encryption

Articles - In this blog, we briefly present three interesting news in the field of digital law: (1) Parliamentary initiatives to tackle cyber attacks (2) "Zero tariff" options and open internet access do not mix! (3) Council of State, GDPR and encryption: validation of a decision of the Flemish Authorities

Read more