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

30.04.2019 EU law
Climate goals and energy targets: legal perspectives

Seminar - On Tuesday April 30th, Stibbe organizes a seminar on climate goals and energy targets. Climate change has incited different international and supranational institutions to issue climate goals and renewable energy targets. Both the UN and the EU have led this movement with various legal instruments.

Read more

04.04.2019 NL law
Fine liability in antitrust cases is closely scrutinised by Dutch courts

Short Reads - A parent company can be held liable for a subsidiary's anti-competitive conduct if the parent has exercised decisive influence over the subsidiary, because the two are then considered a single undertaking. This is why the Trade and Industry Appeals Tribunal (CBb) recently found that the ACM cannot simply rely on managing partners' civil liability to determine fine liability for a limited partnership's anti-competitive conduct.

Read more

12.04.2019 NL law
Hoogste Europese rechter bevestigt dat overheden onrechtmatige staatssteun proactief moeten terugvorderen

Short Reads - De maand maart 2019 zal vermoedelijk de juridisch handboeken ingaan als een historische maand voor het mededingings- en staatssteunrecht. Niet alleen deed het Hof van Justitie een baanbrekende uitspraak op het gebied van het verhaal van kartelschade. Het heeft in de uitspraak Eesti Pagar (C-349/17) van 5 maart 2019 belangrijke vragen opgehelderd over de handhaving van het staatssteunrecht op nationaal niveau.

Read more

04.04.2019 NL law
Tick-tock: no reset of the appeal clock for amending Commission decision

Short Reads - The European Court of Justice recently upheld the General Court's order finding that metal production and recycling company Eco-Bat had submitted its appeal outside of the appeal term. Eco-Bat had relied on the term starting from the date of the European Commission's decision correcting figures for the fine calculation in the initial infringement decision.

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