At the beginning of 2015, the General Court of the European Union (“GCEU” or the “Court”) dismissed the application for the annulment of a European Commission decision rejecting a request for confidential treatment submitted by Akzo Nobel and other companies that participated in an infringement of competition law.
This decision is of particular importance since it is the first time that the GCEU provides guidelines regarding the balance between the publication of public versions of cartel decisions and the protection of professional secrets.
The decision concerned the publication of a more detailed (i.e., disclosing more information), non-confidential version of the final judgment, notwithstanding that a first version had been already published. The companies opposed the publication since it seriously harmed their interests, given that the more detailed version would contain a large amount of information provided under a leniency application related to a cartel.
Regardless of maintaining the sources of the information as confidential, the Commission took the view that there was no justification to extend that confidentiality to the information itself. Faced with the rejection of their request for confidential treatment, the companies in question argued before the GCEU that there had been a breach of the duty of confidentiality and afrustration of their legitimate expectations.
Firstly, they claimed that the new publication breaches the duty of confidentiality, since the information was voluntarily given by the applicants to the Commission under a leniency application, thus being protected against its disclosure.
Secondly, the applicants claimed that the contested decision, by authorizing the publication of a non-confidential version containing information voluntarily provided under a leniency application, frustrated their legitimate expectations, since they were assured that such information would remain confidential. In addition, a non-confidential version of the judgment had already been published.
To counter the first argument, the Court stated three conditions that must be met in order to protect confidentiality: (i) the information is known only to a limited number of persons; (ii) the disclosure of that information is liable to cause serious harm to the person who has provided it or to third parties; and (iii) the interests liable to be harmed by disclosure are, objectively, worthy of protection. The Court deemed the first two conditions proved, having stated, regarding the third, that “the interest of an undertaking which the Commission has fined for breach of competition law in the non-disclosure to the public of details of the offending conduct of which it is accused does not, in principle, merit any particular protection”. The Court made this statement when confronted with public interest in knowing the reasons for any Commission action, the interest of economic operators in knowing which behaviours are punished, and the interest of persons harmed by the infringement so that they may assert their rights (notably, to be compensated for their losses) against the undertakings punished. The Court added that the publication by the Commission of a non-confidential version of its decisions containing information that was voluntarily submitted to it under the leniency programme cannot be considered to be used for a reason other than that for which the information was obtained.
Regarding the second argument, the Court concluded that, although the previous administrative practice may have created expectations for the companies, they could not have any legitimate expectation that such practice would be maintained. Therefore, the mere fact that the Commission published an initial non-confidential version of the decision and that it did not describe that version as provisional could not have given the applicants any precise assurance that a more detailed non-confidential version would not be published later. Thus, since the Commission did not make any specific commitment not to publish a non-confidential version containing more information, the applicants cannot claim the frustration of their expectations.
This decision reinforces the wide margin of appreciation given to the Commission regarding the publication of its decisions, and shows that the information provided by companies in leniency applications should not be automatically deemed confidential. Therefore, the range of such protection will always have to be balanced with the legitimate interest in the disclosure of the facts constituting the infringement.
This article was co-authored by lawyers Gonçalo Machado Borges and Miguel Cortes Martins.
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1 Case T-345/12 – Akzo Nobel NV & Others/European Commission.
