O âmbito de proteção da informação constante dos requerimentos de clemência – o acórdão do TJUE no processo C-162/15p, Evonik Degussa

Background

In 2006, the European Commission (“Commission”) sanctioned Evonik Degussa GmbH (“Degussa” or “Appellant”) and 16 competitors for having participated in a cartel in the hydrogen peroxide and perborate sector, which lasted for approximately six years. Degussa actively contributed to the Commission’s investigation and proof of the infringement, as it was the first to give the Commission information on the functioning of the cartel under the leniency regime in force at the time. In exchange for such cooperation, Degussa was not fined.

After publishing, in 2007, a first non-confidential version of the fining decision (the “PHP decision”), the Commission decided, in 2011, to publish on its site a new non-confidential version with more details than the first one.

Degussa objected to the publication, alleging that the new version contained confidential information and that its publication would breach its legitimate expectation that the information voluntarily disclosed to the Commission under the leniency regime would not be disclosed as well as the principle of equal treatment (in respect of other cartel participants who did not cooperate with the Commission), while at the same time having an adverse effect on the Commission’s investigations.

The Commission agreed to delete from the new version all the information that would allow the source of the information communicated under the leniency regime, and the names of Degussa’s employees, to be identified. However, it considered that there was no reason to grant the benefit of confidentiality to the remaining information for which Degussa had requested such confidential treatment (“the contested information”).

Degussa then requested the Hearing Officer – who is in charge of ensuring the effective exercise of procedure rights at the administrative stage of the proceeding (before the Commission) – to delete from the new version all information supplied by it pursuant to the 2002 Leniency Notice. However, the Hearing Officer rejected the request as it considered that Degussa did not show that the publication of the contested information was likely to cause it serious harm. In addition, the Hearing Officer considered itself incompetent to answer Degussa’s argument that disclosure to third parties of the information which it had communicated to the Commission in the context of leniency would breach the principles of protection of legitimate expectations and equal treatment.

Degussa appealed this decision to the General Court and later on (as the General Court rejected its appeal) to the European Court of Justice (ECJ).

The contested information

The contested information consisted broadly of additional details regarding the elements constituting the infringement and in the appellant’s participation in it, in particular, by referring to the names of products covered, prices charged and the objectives pursued by the participants in respect of prices and market shares, all of which would put more focus on the infringing behaviour of Degussa. The contested information would make it easier for potential victims to show the damage caused by Degussa as well as the causal link between the infringement and the damage caused.

The judgment of the ECJ

The ECJ first assessed the issue of the Hearing Officer’s powers and considered – contrary to the assessment of the Hearing Officer and of the General Court – that the grounds which may restrict the disclosure of information communicated with a view to obtaining leniency are not limited to the rules affording specific protection against disclosure to the public and that the Hearing Officer must, therefore, examine any objection based on rules or principles of EU law, relied on by the interested person in order to claim protection of the confidentiality of the contested information. For the ECJ, a different interpretation would run counter to the aim of the Hearing Officer’s terms of reference – the safeguard of the effective exercise of procedural rights – and would limit considerably the ability to raise objections to disclosure of information before the Hearing Officer. The ECJ annulled the appealed decision on this ground.

In what concerns the other objections raised by the Appellant against the publication of the contested information, they were all rejected by the ECJ, in particular, based on the following:

• The contested information was more than five years old and was therefore presumed to have already lost its secret or confidential nature due to the passage of time; also, Degussa failed to rebut this presumption: in particular, it did not show that, despite its age, such information still constituted an essential element of its commercial position;
• The ECJ also considered that the interest of an undertaking which has been fined, in the non-disclosure to the public of the details of the offending conduct of which it is accused is an interest that does not warrant any particular protection;
• In the present case, there is no presumption that the disclosure of the contested information is contrary to the protection of the commercial interests of the undertakings concerned or to the objectives of the investigation. Such a general presumption exists only in respect of access by third parties to documents in the Commission’s administrative file (in article 101 of the Treaty on the Functioning of the European Union (TFEU) proceedings) and cannot be transposed to the publication of decisions on infringements of Article 101 TFEU given the different underlying interests in each case;
• The fact that, in the Leniency Notice, the Commission acknowledges that the disclosure of leniency statements is capable of undermining the protection of the purpose of inspections and investigations does not mean that the Commission is prevented from publishing information relating to the elements constituting the infringement submitted to it in the context of the leniency programme and which does not enjoy protection against publication on other grounds.

Final remarks

The question of whether publication of the contested information by the Commission constitutes a breach of the principles of protection of legitimate expectations and of equal treatment remained open in this case and will now have to be assessed, first of all, by the Hearing Officer.

The judgment confirms that information/documents that are voluntarily conveyed to the Commission in the context of a leniency programme do not automatically benefit from a blanket protection against publication.

In respect of the scope of protection given to information delivered under a leniency programme, the ECJ draws a distinction between verbatim quotations from leniency statements, which are never permitted, and verbatim quotations of information from the documents provided in support of a leniency statement made, which can be published, subject to compliance with the protection owed, in particular, to business secrets, professional secrecy and other confidential information.