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

07.11.2019 NL law
Tackling Big Tech up-front? Time to stop thinking and start acting

Short Reads - Benelux competition authorities have published a joint memorandum on how best to keep up with challenges in fast-moving digital markets. As well as calling on the European Commission to issue an economic study on digital mergers, the memorandum calls for an ex ante intervention tool to fill the gap between interim measures and ex post enforcement. This tool would pre-emptively impose behavioural remedies on digital gatekeepers without first having to establish an actual competition law infringement.

Read more

08.11.2019 BE law
Interview with Wouter Ghijsels on Next Gen lawyers

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Read more

07.11.2019 NL law
Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

Short Reads - The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.

Read more

07.11.2019 NL law
Safeguarding legal privilege: better safe than sorry?

Short Reads - The European Court of Justice recently ruled that the European Commission does not have to take additional precautionary measures to respect the right of legal professional privilege when conducting a new dawn raid at the same company. Companies are well-advised to mark clearly all communications covered by legal privilege as 'privileged and confidential' and to keep all privileged communication separate from other communication.

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