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

05.09.2019 NL law
ECJ answers preliminary questions on jurisdiction in cartel damage case 

Short Reads - On 29 July 2019, the ECJ handed down a preliminary ruling concerning jurisdiction in follow-on damages proceedings in what is termed the trucks cartel. The court clarified that Article 7(2) Brussels I Regulation should be interpreted in such a way as to allow an indirect purchaser to sue an alleged infringer of Article 101 TFEU before the courts of the place where the market prices were distorted and where the indirect purchaser claims to have suffered damage. In practice, this often means that indirect purchasers will be able to sue for damages in their home jurisdictions.

Read more

08.08.2019 BE law
Regulating online platforms: piece of the puzzle

Articles - The new Regulation no. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, applicable as of 12 July 2020, is another piece of the puzzle regulating online platforms, this time focussing on the supply side of the platforms.

Read more

05.09.2019 NL law
Wanted: fast solutions for fast-growing platforms

Short Reads - Dominant digital companies be warned: calls for additional tools to deal with powerful platforms in online markets are increasing. Even though the need for speed is a given in these fast-moving markets, the question of which tool is best-suited for the job remains. Different countries are focusing on different areas; the Dutch ACM wants to pre-emptively strike down potential anti-competitive conduct with ex ante measures, while the UK CMA aims for greater regulation of digital markets and a quick fix through interim orders.

Read more

01.08.2019 NL law
General court dismisses all five appeals in the optical disk drives cartel

Short Reads - The General Court recently upheld a Commission decision finding that suppliers of optical disk drives colluded in bids for sales to Dell and HP by engaging in a network of parallel bilateral contacts over a multi-year period. The General Court rejected applicants' arguments regarding the Commission's fining methodology, including that the Commission ought to have provided reasons for not departing from the general methodology set out in its 2006 Guidelines.

Read more

05.09.2019 NL law
No fine means no reason to appeal? Think again!

Short Reads - Whistleblowers who have had their fine reduced to zero may still have an interest in challenging an antitrust decision. The Dutch Authority for Consumers and Markets (ACM) held two de facto managers personally liable for a cartel infringement but, instead of imposing a EUR 170,000 fine, granted one of them immunity from fines in return for blowing the whistle. The Trade and Industry Appeals Tribunal found that, despite this fortuitous outcome, the whistleblower still had an interest in appealing the ACM's decision.

Read more

01.08.2019 NL law
Brand owners beware: Commission tough on cross-border sales restrictions

Short Reads - The European Commission recently imposed a EUR 6.2 million fine on Hello Kitty owner Sanrio for preventing its licensees from selling licensed merchandising products across the entire EEA. Sanrio is the second licensor (after Nike) to be fined for imposing territorial sales restrictions on its non-exclusive licensees for licensed merchandise. A third investigation into allegedly similar practices by Universal Studios is ongoing. The case confirms the Commission's determination to tackle these practices, regardless of type or form.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring