Parties
Grounds
Operative part
In Case T‑345/12,
Akzo Nobel NV, established in Amsterdam (Netherlands),
Akzo Chemicals Holding AB, established in Bohus (Sweden),
Eka Chemicals AB, established in Farjevagen (Sweden),
represented by C. Swaak and R. Wesseling, lawyers,
applicants,
v
European Commission, represented by C. Giolito, M. Kellerbauer and G. Meessen, acting as Agents,
defendant,
supported by
CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide), established in Brussels (Belgium), represented by T. Funke, lawyer,
intervener,
APPLICATION for the annulment of Commission Decision C(2012) 3533 final of 24 May 2012 rejecting a request for confidential treatment submitted by Akzo Nobel, Akzo Nobel Chemicals Holding and Eka Chemicals pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case COMP/38.620 — Hydrogen Peroxide and perborate),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 9 April 2014,
gives the following
Judgment
GroundsBackground to the dispute
1. On 3 May 2006 the European Commission adopted Decision C(2006) 1766 final relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, Eka Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret SA, Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/38.620 — Hydrogen Peroxide and Perborate) (‘the HPP decision’).
2. In the HPP decision, the Commission found, inter alia, that the applicants, Akzo Nobel, Akzo Nobel Chemicals Holding and Eka Chemicals, had participated in an infringement of Article 81 EC within the European Economic Area (EEE) along with 14 other undertakings active in the hydrogen peroxide and perborate sector. A fine of EUR 25.2 million was imposed on the applicants jointly and severally.
3. In 2007, a first non-confidential version of the HPP decision was published on the website of the Commission’s Directorate-General for Competition (‘DG COMP’).
4. By letter of 28 November 2011, the Commission informed the applicants of its intention to publish a new, more detailed, non-confidential version of the HPP decision, containing the full content of the decision with the exception of any confidential information. On that occasion, the Commission asked the applicants to identify the information in the HPP decision that they wished to be treated as confidential.
5. After establishing that the more detailed version of the HPP decision which the Commission proposed to publish contained a large amount of information which had been provided in the context of an application based on the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’), the applicants informed the Commission in a letter dated 9 January 2012 that they opposed the Commission’s proposal on the ground that the proposed publication would considerably and irreversibly harm their interests. They therefore asked the Commission, primarily, to reconsider its intention to publish a new, more detailed, non-confidential version of the HPP decision and, in the alternative, to leave out of such publication certain information which they regarded as confidential.
6. By letter of 15 March 2012, the Commission informed the applicants that it accepted their request for the omission of all information which would allow direct or indirect tracing of the sources of the information submitted under the 2002 Leniency Notice from the new non-confidential version that was to be published. By contrast, the Commission took the view that there was no justification to treat as confidential the other information in respect of which the applicants had requested confidential treatment.
7. Availing themselves of the option provided for under Decision 2011/695/EU of the President of the Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29; ‘the decision on the function and terms of reference of the hearing officer’), the applicants applied to the hearing officer, asking him to exclude from the non-confidential version that was to be published all the information which they had provided under the 2002 Leniency Notice.
Contested decision
8. By Decision C(2012) 3533 final of 24 May 2012 (‘the contested decision’), the hearing officer rejected, on behalf of the Commission, the requests for confidential treatment submitted by the applicants and consequently authorised the publication of information which the applicants had provided to the Commission in order to benefit from the Commission’s leniency programme.
9. In the contested decision, the hearing officer first of all emphasised the limits on his terms of reference, which permitted him merely to determine whether information was to be considered confidential, but not to remedy any alleged breach of the applicants’ legitimate expectations in relation to the Commission.
10. He also pointed out that the applicants opposed publication of a new non-confidential version of the HPP decision solely on the ground that it contained information provided under the 2002 Leniency Notice. According to the hearing officer, however, the Commission enjoys a broad margin of discretion as regards the amount of information published over and above the main content of its decisions. Moreover, in his view, references to documents contained in the administrative file do not constitute, in themselves, business secrets or other confidential information.
11. According to the hearing officer, the applicants had failed to show that the disclosure of information which they had submitted to the Commission in order to benefit from the latter’s leniency programme was liable to cause them serious harm. The interest that an undertaking fined by the Commission for infringing competition law had in the non-disclosure to the public of the details of the offending conduct of which it was accused did not, in any event, warrant any particular protection. The hearing officer observed, in that connection, that actions for civil damages were part and parcel of the European Union’s competition policy and that, accordingly, the applicants could not claim to have a legitimate interest in being protected against the risk of having such actions brought against them because of their involvement in the cartel referred to in the HPP decision.
Procedure and forms of order sought
12. By application lodged at the Court Registry on 3 August 2012, the applicants brought the present action.
13. By order of 16 November 2012 in Akzo Nobel and Others v Commission (T‑345/12 R, [2012] ECR), the President of the Court, first, suspended operation of the contested decision and, secondly, ordered the Commission to refrain from publishing a version of the HPP decision which was more complete, in relation to the applicants, than that which had been published on DG COMP’s website since August 2007.
14. By document lodged at the Court Registry on 10 January 2013, the Commission requested the Court to give priority treatment to the present case, pursuant to Article 55(2) of the Rules of Procedure of the General Court.
15. By order of the President of the Second Chamber of the Court of 7 June 2013, CDC Hydrogen Peroxide Cartel Damage Claims SA was granted leave to intervene in the present case in support of the form of order sought by the Commission.
16. Following a change in the composition of the chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was consequently assigned.
17. Upon hearing the Report of the Judge-Rapporteur, the Court decided to open the oral procedure, but did not accede to the Commission’s request for priority treatment. It also, by way of measure of organisation of procedure, requested the production of documents by the applicants. The applicants produced the requested documents within the time-limits laid down.
18. The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 9 April 2014.
19. The applicants claim that the Court should:
– annul the contested decision in whole or in part;
– in the event that the Court should consider that the contested decision implies a decision authorising access under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), annul the decision containing such authorisation;
– order the Commission to pay the costs.
20. At the hearing, the applicants, in response to a question from the Court, indicated that they withdrew their second head of claim, which was recorded in the minutes of the hearing.
21. The Commission and the intervener contend that the Court should:
– dismiss the application in its entirety;
– order the applicants to pay the costs.
Law
Admissibility
22. The Commission claims, in essence, that, inasmuch as it must be considered that the letter it sent to the applicants on 28 November 2011 contained a formal decision to publish a more detailed non-confidential version of the HPP decision, the applicants are time-barred from contesting the lawfulness of that decision in the present action since they did not seek its annulment within the period laid down in the sixth subparagraph of Article 263 TFEU.
23. In that regard, it must be pointed out that, while, in its letter of 28 November 2011, the Commission indeed informed the applicants that it had ‘recently been decided’ to publish a new more detailed version of the HPP decision than that available on the DG COMP website since 2007, the purpose of doing so was to allow the applicants to request the omission of any business secrets or other confidential information, in accordance with the explanations provided in Annex III to that letter. That letter therefore did not contain the Commission’s final position on the confidentiality issues that are at the heart of the present dispute.
24. Moreover, that explains why the Commission, in its letter to the applicants of 15 March 2012, did not assert that the publication decision allegedly contained in its letter of 28 November 2011 was final, but invited the applicants to bring the matter before the hearing officer if they wished to challenge DG COMP’s rejection of the majority of their confidentiality claims.
25. It must also be noted that, following the adoption of the contested decision, the Commission, in response to a request from the applicants, sent an e-mail to their counsel from which it is clear that that decision was the only one taken as regards the applicants in that respect and that it reflected the Commission’s final position.
26. It follows that the action is admissible.
Substance
27. In support of their claims seeking the annulment of the contested decision, the applicants put forward three pleas in law. The first plea in law alleges breach of the duty to state reasons and infringement of the applicants’ right to good administration, the second plea in law alleges breach of the duty of confidentiality under Article 339 TFEU and Article 28(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 [TFEU] and 102 [TFEU] (OJ 2003 L 1, p. 1), and the third plea in law alleges frustration of the applicants’ legitimate expectations and breach of the principles of legal certainty and good administration.
The first plea in law, alleging failure to state adequate reasons and infringement of the right to good administration
28. The applicants submit that the statement of reasons for the contested decision is inadequate and thus infringes Article 296 TFEU and the right to good administration enshrined in Article 41(2) of the Charter of Fundamental Rights of the European Union. They first submit, in that respect, that the contested decision does not enable them to understand the reasons for the rejection of the arguments relating to their legitimate expectations which they made in support of their request for confidential treatment. Next, the applicants submit that the contested decision does not address their argument that the publication proposed by the Commission departs from the latter’s previous administrative practice. Lastly, they argue that the standard of reasoning required in the present case is high, since the contested decision represents a departure from the approach adopted by the Commission in 2007, namely to publish a non-confidential version of the HPP decision that did not include the information in respect of which the applicants had requested confidential treatment.
29. The Commission contends that the contested decision, viewed in the context in which it was adopted, is supported by an adequate sta tement of reasons.
30. It is settled law that the purpose of the obligation to give reasons for an individual decision is to enable the EU judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted (Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 14; Case T‑499/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 51).
31. Thus, although Article 296 TFEU requires the Commission to state the elements of fact and law which constitute the legal basis of the decision and the considerations which led it to adopt the decision, it is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the requirements laid down in that provision must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited, and Case T‑53/12 CF Sharp Shipping Agencies v Council [2012] ECR, paragraph 37). In particular, the reasons given for a measure adversely affecting a person are adequate if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (see Case T‑465/08 Czech Republic v Commission [2011] ECR II‑1941, paragraph 163).
32. That obligation to state reasons is implemented in Article 8(2) of the decision on the function and terms of reference of the hearing officer, read in conjunction with the third paragraph of that provision, as regards decisions that the hearing officer is required to take on requests for confidential treatment of certain information in the context of proceedings applying the competition rules.
33. In the present case, it can be seen from the applicants’ letters to DG COMP of 8 December 2011 and 9 January 2012 and from the letter that they sent to the hearing officer on 10 April 2012 that the applicants claimed, during the administrative proceedings, that the publication of a version of the HPP decision containing information that they had voluntarily submitted in order to benefit from the 2002 Leniency Notice would frustrate their legitimate expectations. Moreover, it can be seen from those letters that the applicants claimed that such publication would depart from the previous administrative practice of the Commission not to disclose to third parties information which undertakings had submitted in the context of the leniency programme.
34. On this point, it must be noted that, although the hearing officer did not specifically respond to the substance of each of those arguments, the reason that he refrained from doing so — as can be seen, in essence, from the judgment delivered today in Evonik Degussa v Commission (T‑341/12, ECR, paragraphs 42 to 44 and 58) — was to respect the limits of the terms of reference conferred on him by the President of the Commission pursuant to Article 8 of the decision on the function and terms of reference of the hearing officer.
35. However, the contested decision was adopted following an administrative procedure in which the Commission was required to respond to the applicants’ objections to the very principle of the proposed publication, which were outside the remit of the hearing officer.
36. In those circumstances, and in order to ensure effective judicial protection of the applicants, it is necessary to consider the contested decision in the context that led to its adoption and to hold, accordingly, that the contested decision includes implicitly, but necessarily, the positions adopted by the Commission as regards the proposed publication, expressed through DG COMP, in so far as they concern aspects which do not fall within the remit of the hearing officer.
37. The contested decision, viewed in that manner, allows the applicants to understand the matters of fact and law on which the legal justification for that measure depends.
38. Thus, in the first place, the Commission, in the letter that it sent to the applicants on 28 November 2011, justified its intention to publish a new, more detailed, non-confidential version of the HPP decision by reference to an objective of transparency. Furthermore, in a letter sent to the applicants on 20 December 2011, the Commission stated, in essence, that the proposed publication had to be understood in the light of a request for access to the confidential version of the HPP decision, made on the basis of Regulation No 1049/2001.
39. In the second place, although the hearing officer indeed declared that he was not competent to examine a possible breach of the applicants’ legitimate expectations, on the ground that such an examination would go beyond the limits of his terms of reference pursuant to Article 8 of the decision on the function and terms of reference of the hearing officer, nevertheless, the Commission, in the letter sent by DG COMP to the applicants on 15 March 2012, expressly responded to the applicants’ argument that the publication in question would frustrate their legitimate expectations.
40. It can be seen from that letter, essentially, that in its assessment of the objections to the very principle of the publication in question, the Commission considered that, in particular, the protection of the purpose of its investigations, covered by the exception to the principle of transparency laid down in the third indent of Article 4(2) of Regulation No 1049/2001, had to be weighed against the parties’ legitimate expectations. The Commission also indicated that a document did not deserve protection just because it was submitted in the context of a leniency application and that the proposed publication would not undermine the purpose of its investigations. Furthermore, it emphasised that, in the present case, it was necessary to take account of Article 4(7) of Regulation No 1049/2001, by virtue of which the exceptions to the right of access to documents referred to in the first three paragraphs of that article only apply for the period during which protection is justified on the basis of the content of the document. The Commission concluded from this that the publication at issue did not constitute a breach of the principle of protection of legitimate expectations.
41. In the third place, the contested decision refers to several factors in support of the rejection of the applicants’ confidentiality claims. The hearing officer emphasised in that decision, first of all, that references to documents contained in the administrative file do not constitute, in themselves, business secrets or other confidential information. He then justified the rejection of the confidentiality claims, first, by the Commission’s broad margin of discretion to publish more than the main content of the decisions that it adopts under Article 23 of Regulation No 1/2003, secondly, by the fact that the applicants had not demonstrated that the publication of information that they had submitted to the Commission in the context of the 2002 Leniency Notice was liable to cause them serious harm and, thirdly, by the fact that, even if that risk were established, it followed from the case-law that the applicants’ interest in the non-disclosure to the public of the details of their participation in an infringement did not warrant protection.
42. The findings in the previous paragraph also lead the Court to reject the applicants’ argument that the contested decision does not set out the reasons justifying a departure, in the present case, from the Commission’s previous administrative practice. Even if the previous administrative practice referred to by the applicants were proved, the contested decision, viewed in the context in which it was adopted, provides enough information to allow the applicants to understand why the Commission decided to depart from that practice in the present case.
43. Lastly, it is necessary to reject as ineffective the applicants’ argument that the standard of reasoning required in the present case is higher than usual since the contested decision authorises the publication of information previously considered confidential by the Commission. Even if such an intensification of the obligation to state reasons were justified, it must be held that, given both the nature of the arguments put forward by the applicants in the letter to the hearing-officer of 10 April 2012 and the context in which the contested decision was adopted, of which the applicants were aware, that decision set out, in a sufficiently clear and precise manner, why it had been decided, in the present case, no longer to consider the information at issue as confidential.
44. Accordingly, the applicants’ argument that the contested decision is not supported by an adequate statement of reasons cannot be accepted. Since, moreover, the applicants have not indicated how their complaint alleging infringement of the right to good administration differs from their line of argument alleging a failure to state adequate reasons for the contested decision, that complaint cannot be accepted either. It follows that the first plea in law must be rejected.
The second plea in law, alleging breach of the duty of confidentiality under Article 339 TFEU and Article 28(2) of Regulation No 1/2003
45. The applicants claim that the contested decision breaches the duty of confidentiality imposed on the Commission by Article 339 TFEU and Article 28(2) of Regulation No 1/2003. It is, they submit, clear from case-law that information voluntarily given by undertakings to the Commission deserves protection from disclosure. The information in respect of which the applicants sought confidential treatment in the present case had been voluntarily submitted by the applicants to the Commission in order to benefit from the 2002 Leniency Notice.
46. Moreover, the applicants refer, in that connection, to Article 30 of Regulation No 1/2003, pursuant to which, when publishing its decisions, the Commission must have regard to the legitimate interest of undertakings in non-disclosure of their business secrets, and to Article 16(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), pursuant to which business secrets and other confidential information are not to be communicated or made accessible.
47. The applicants also submit that the information that they submitted pursuant to the 2002 Leniency Notice is covered by the obligation of professional secrecy.
48. Thus, according to the applicants, the 2002 Leniency Notice, in particular paragraphs 29, 32 and 33 thereof, provides for the confidential treatment of information contained in leniency applications. The protection of that information is confirmed by paragraph 6 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the 2006 Leniency Notice’). Furthermore, it is necessary to take into account that the information at issue was provided to the Commission in its official capacity, that it was known only to a limited number of persons and that its disclosure would cause serious harm to the applicants since it would place them in a significantly worse position in actions for damages brought against them compared with other addressees of the HPP decision which did not cooperate with the Commission. For those reasons, the confidential nature of that information cannot be affected by the passing of time, unlike commercially sensitive information in the narrow sense of the term. In addition, the applicants’ interest in the non-disclosure of that information is deserving of protection since the confidential treatment of that information is essential to the proper functioning of the Commission’s leniency programme and, accordingly, for the effectiveness of EU law as regards cartels.
49. The applicants challenge, in that context, the Commission’s approach of offering protection only to documents submitted in the context of the leniency applications or to declarations made by a leniency applicant, and not the information contained in those documents. According to the applicants, that approach infringes the fundamental right to the protection of professional secrecy guaranteed by Article 339 TFEU. At the hearing, the applicants added that the publication of the more detailed non-confidential version envisaged by the Commission amounts to circumventing the exceptions to the right of access to documents of the institutions laid down in Regulation No 1049/2001, as well as the specific rules on access to investigation files in relation to cartels laid down in Regulation No 1/2003.
50. Lastly, according to the applicants, the publication of the non-confidential version of the HPP decision in 2007 already fulfils the purpose of informing the general public of the reasons for that decision. By publishing a more detailed non-confidential version of the HPP decision, the Commission actually seeks to facilitate the action for damages brought by the intervener before the Landgericht Dortmund (Dortmund Regional Court, Germany). In that respect, the contested decision reflects a wider change in the Commission’s publication policy as regards cartels, intended to assist claimants bringing actions for damages against participants in that type of infringement of competition law. However, in the absence of a reform of the applicable legal framework, the decision to publish a more detailed non-confidential version of the HPP decision is not justified. Article 28(1) of Regulation No 1/2003 prohibits the use of information gathered in the course of the investigation for purposes other than those of the investigation and therefore protects the interests of undertakings involved in Commission investigations against the use of such information in civil proceedings. The applicants added, at the hearing, that, in any event, the interests of victims of a cartel in obtaining precise information on the operation of that cartel is sufficiently protected by national courts’ power to request the Commission to communicate such information to it.
51. The Commission and the intervener dispute those arguments.
52. In that respect, the Court notes, as a preliminary point, that the arguments relating to frustration of the legitimate expectations allegedly acquired by the applicants on the basis of the 2002 and 2006 Leniency Notices and the Commission’s previous administrative practice, invoked in support of the second plea in law, are essentially the same as some of the arguments put forward in support of the third plea in law. Those arguments will therefore be examined in the context of that plea in law.
53. Next, it must be noted that, in accordance with Article 339 TFEU, the members of the institutions of the Union, the members of committees, and the officials and other servants of the Union are required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.
54. Article 28(1) of Regulation No 1/2003 provides that, without prejudice to Articles 12 and 15 thereof, information collected by the Commission in the course of investigations carried out under that regulation, pursuant to Articles 17 to 22 thereof, is to be used only for the purpose for which it was acquired. Article 28(2) of Regulation No 1/2003, which supplements the rule laid down in Article 339 TFEU in relation to the application of that regulation, provides, inter alia, that, without prejudice to the cooperation between the Commission and the competition authorities of the Member States and the possibility for addressees of a statement of objections to consult the investigation file, the Commission and those authorities, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States are required not to disclose information acquired or exchanged by them pursuant to that regulation and of the kind covered by the obligation of professional secrecy.
55. Furthermore, under Article 30(1) of Regulation No 1/2003, the Commission is to publish, inter alia, the decisions by which it imposes fines on undertakings or associations of undertakings that it finds liable for an infringement of the EU law on cartels. In accordance with Article 30(2) of that regulation, that publication is to state the names of the parties concerned and the main content of the decision, including any penalties imposed, but must have regard to the legitimate interest of undertakings in the protection of their business secrets.
56. Article 16(1) of Regulation No 773/2004 provides, in essence, that the Commission is not to communicate or make accessible information, including documents, contained in the investigation file, in so far as it contains business secrets or other confidential information of any person.
57. Lastly, Article 8(1) to (3) of the decision on the function and terms of reference of the hearing officer provides as follows:
‘1. Where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by [DG-COMP]. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments.
2. Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. If the hearing officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than 1 week from the date of notification.
3. Paragraphs 1 and 2 shall apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union .’
58. In the present case, the applicants do not deny having participated in the cartel that gave rise to the adoption of the HPP decision. They claim, however, that the information at issue is confidential simply because it was given to the Commission voluntarily in the context of the leniency programme, and that the proposed publication is therefore liable to undermine the protection of the purpose of the Commission’s investigations.
59. Since the sphere of information covered by the obligation of professional secrecy extends beyond business secrets of undertakings (see, to that effect, Case 145/83 Adams v Commission [1985] ECR 3539, paragraph 34, and Case T‑198/03 Bank Austria Creditanstalt v Commission [2006] ECR II‑1429, paragraph 29), it must be determined, without prejudice to the analysis of the substance of the third plea in law, whether, as the applicants claim, information may enjoy protection on that basis simply because it was voluntarily submitted to the Commission by an undertaking in order to benefit from the leniency programme.
60. According to the second subparagraph of Article 1 TEU, decisions are to be taken as openly as possible within the European Union. That principle is reflected in Article 15 TFEU, which, subject to certain conditions, grants citizens a right of access to documents of the institutions. In accordance with this principle, and in the absence of provisions explicitly ordering or prohibiting publication, the ability of the institutions to make acts which they adopt public is the rule, to which there are exceptions in so far as EU law, in particular through provisions ensuring compliance with the obligation of professional secrecy, prevents disclosure of such acts or of certain information contained therein (see, by analogy, Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 69).
61. Neither Article 339 TFEU nor Regulation No 1/2003 explicitly indicates what information, apart from business secrets, is covered by the obligation of professional secrecy. It cannot be inferred from Article 28(2) of Regulation No 1/2003 that such would be the case as regards all information acquired under that regulation other than information whose publication is mandatory under Article 30 thereof. Like Article 339 TFEU, Article 28(2) of Regulation No 1/2003 — which supplements and applies that provision of the Treaty to the field of competition rules applicable to undertakings — prevents only the disclosure of information of the kind covered by the obligation of professional secrecy (see, by analogy, Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 70).
62. In addition, according to paragraph 75 of the judgment in Bank Austria v Commission , paragraph 59 above, and paragraph 64 of the judgment in Case T‑474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II‑4225, in so far as the confidentiality of certain measures is protected by an exception to the right of access to documents laid down in Article 4 of Regulation No 1049/2001, such protection is relevant in order to assess whether the Commission has respected its duty under Article 28(2) of Regulation No 1/2003 not to disclose information of the kind covered by the obligation of professional secrecy.
63. However, since those judgments were delivered, the Court of Justice has interpreted Article 4 of Regulation No 1049/2001 as meaning that it is open to the institutions to base their decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature. That interpretation applies where the legislation governing the procedure also lays down strict rules as regards the treatment of information obtained or established in that procedure (Case C‑404/10 P Commission v Éditions Odile Jacob [2012] ECR, paragraphs 108, 116 and 118). That is precisely the case as regards Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004, which lay down rules restricting the use of documents in the file relating to a proceeding under Article 101 TFEU (Case C‑365/12 P Commission v EnBW Energie Baden-Württemberg [2014] ECR, paragraph 86). In that context, Article 30 of Regulation No 1/2003 would be rendered meaningless if Article 4 of Regulation No 1049/2001 were taken into account in such a way as to preclude the Commission from publishing any information to which it would be entitled to refuse access under that provision by invoking a general presumption. Such an interpretation would effectively deprive the Commission of the possibility of publishing even the main content of its decision, since that content must necessarily reveal certain information in the investigation file. Moreover, it would also, in practice, reverse the burden of proof, which, in relation to confidential treatment, is borne by the applicant for such treatment, since the applicant could merely rely on the general presumption that the institutions may invoke in the conditions described above and, in practice, require the Commission to prove that the information at issue may be included in the published version of its decision.
64. Contrary to what is argued, in essence, by the applicants, disclosing information concerning an infringement of EU competition law through the publication of a decision penalising that infringement, on the basis of Article 30 of Regulation No 1/2003, cannot, in principle, be conflated with allowing third parties access to documents contained in the Commission’s investigation file relating to such an infringement. Thus, in the present case, the publication of information relating to the circumstances constituting the infringement that was not contained in the non-confidential version of the HPP decision published in 2007 — were it to take place — would not result in the communication to third parties of the leniency applications submitted to the Commission by the applicants, of the minutes of the oral statements made by the applicants in the context of the leniency programme, or of the documents that the applicants voluntarily submitted to the Commission during the investigation.
65. The Court will examine, in the light of those principles, the three cumulative conditions that must be met in order for information to fall, by its nature, within the ambit of the obligation of professional secrecy and thus to enjoy protection against disclosure to the public, namely (i) that it is known only to a limited number of persons, (ii) that its disclosure is liable to cause serious harm to the person who has provided it or to third parties and (iii) that the interests liable to be harmed by disclosure are, objectively, worthy of protection ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 71, and Pergan Hilfsstoffe für industrielle Prozesse v Commission , paragraph 62 above, paragraph 65).
66. The Commission submits that the first condition is not met in the present case, on the ground that the information submitted to it by the applicants in the course of the investigation was contained in the file to which the other addressees of the HPP decision had access.
67. That argument must be rejected. A distinction should be drawn, in that respect, between the protection that must be afforded to information covered by the obligation of professional secrecy in relation to persons, undertakings or associations of undertakings having a right to be heard in the context of proceedings applying the competition rules, and the protection which should be afforded to such information in relation to the general public ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 29; see also, by analogy, the order of the Vice-President of the Court of 10 September 2013 in Case C‑278/13 P(R) Commission v Pilkington Group , ECR, paragraphs 56 and 57).
68. Thus, the obligation on officials and other servants of the institutions not to disclose information in their possession covered by the obligation of professional secrecy, laid down in Article 339 TFEU and implemented, in the field of competition rules applicable to undertakings, by Article 28(2) of Regulation No 1/2003, is modified as regards persons on whom Article 27(2) confers the right to be heard. The Commission may communicate to such persons certain information covered by the obligation of professional secrecy in so far as it is necessary to do so for the proper conduct of the investigation. In such circumstances, it must nevertheless be held that the information in question is known only to a limited number of persons.
69. It follows that the rule laid down in Article 27(2) of Regulation No 1/2003, establishing the right of parties concerned by the Commission’s investigation to access the administrative file, is without prejudice to the protection against disclosure to the general public of information submitted to the Commission in the course of the investigation and covered by the obligation of professional secrecy.
70. As regard the second condition, the applicants argue that the disclosure of the information that they communicated to the Commission in the context of the leniency programme would cause them serious harm since it would place them in a significantly worse position in actions for compensation brought against them than other addressees of the HPP decision which did not cooperate with the Commission. Moreover, in their view, such disclosure could also undermine the public interest since it is liable to deter undertakings from reporting infringements of Article 81 EC in the future.
71. The Commission contests the applicants’ line of argument, submitting that the disclosure of the information at issue could not cause serious harm to the applicants since their allegedly less favourable position in civil proceedings is merely the legitimate consequence of their participation in an infringement of EU competition law.
72. However, it must be noted that the Commission’s objection in that respect exclusively concerns the legitimacy of the applicants’ interest in having the confidentiality of the information at issue protected, which is at the heart of the third condition examined in paragraphs 79 to 89 below, and not the serious nature, considered objectively, of the harm that could be caused to the applicants if that information were made available to the public.
73. In that regard, it is undisputed that the information at issue — the publication, or non-publication, of which depends upon the outcome of the present dispute — essentially consists in the description of the constituent elements of the infringement of Article 81 EC penalised by the Commission in the HPP decision.
74. Thus, although in the contested decision the Commission did not give specific reasons relating to the objective of facilitating actions for damages brought before the national courts, it can nevertheless be seen from the file that, prima facie, the publication of the more detailed non-confidential version of the HPP decision proposed by the Commission, in particular the part of that decision relating to the description of the way in which the cartel operated, is liable to allow the intervener — which represents the interests of undertakings which consider themselves to have been adversely affected by the infringement of competition law found in that decision — more easily to establish the civil liability of the applicants as well as that of the other undertakings which participated in that infringement and, as the case may be, the scope of that liability, in the context of the action for damages which it brought before the Landgericht Dortmund.
75. That version provides details of the collusive contacts and anti-competitive agreements in which the applicants participated, mentioning, inter alia, names of the products concerned by those contacts and agreements, figures concerning the prices applied, and the objectives pursued by the applicants as regards prices and the allocation of market shares. Such information is capable of facilitating the demonstration of harm suffered by natural or legal persons which, like the undertakings represented by the intervener, consider themselves to have been adversely affected by the infringement of Article 81 EC penalised in the HPP decision, as well as the causal link between that infringement and the alleged harm.
76. It must also be pointed out that, besides the explanations provided by the intervener in that regard in its statement in intervention and during the hearing, the Commission emphasised, in its written pleadings, that private enforcement of the prohibition laid down in Article 81 EC would be encouraged by the publication of the new non-confidential version that it proposed.
77. Accordingly, it has been established that the disclosure of the information in respect of which the applicants sought confidential treatment would be liable to cause them serious harm, and it is not necessary, at this stage, to rule on whether, as the applicants claim, the publication of the contested information would place them at a disadvantage in actions for compensation brought against them as compared with other undertakings which participated in the infringement penalised by the HPP decision, but which did not show the same willingness to cooperate.
78. The second condition referred to in paragraph 65 above is therefore met in the present case.
79. Lastly, as regards the third condition, it must be noted that when the confidentiality of a piece of information is assessed, the individual legitimate interests opposing disclosure of the information must be weighed against the public interest that the activities of the institutions take place as openly as possible ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 71, and Pergan Hilfsstoffe für industrielle Prozesse v Commission , paragraph 62 above, paragraph 65).
80. In that respect, as regards first of all the applicants’ argument that the proposed publication would expose them to an increased risk of being held liable in civil proceedings brought against them, in particular by the intervener, because of their participation in the infringement penalised in the HPP decision, it must be pointed out at the outset 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, given, first, the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and, secondly, the fined undertaking’s ability to seek judicial review of such a decision ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 78, and Pergan Hilfsstoffe für industrielle Prozesse v Commission , paragraph 62 above, paragraph 72; see, by analogy, judgment of the EFTA Court in Case E-14/11 DB Schenker v EFTA Surveillance Authority [2012], Report of the EFTA Court, p. 1178, paragraph 189).
81. It follows that the applicants cannot legitimately oppose the publication, by the Commission, of information revealing the details of their participation in the infringement penalised in the HPP decision on the ground that such publication would expose them to an increased risk of having to bear the consequences, in terms of civil liability, of their participation in that infringement.
82. However, independently of the third plea in law, the applicants claim, in essence, that the contested decision, by deterring undertakings from reporting infringements of EU competition law of which they are aware and from cooperating with the Commission in order to benefit from the Commission’s leniency programme, is liable to undermine the effectiveness of the fight against infringements of EU law in relation to cartels. According to the applicants, that interest merits protection since the leniency programme has a significant impact on the overall effectiveness of EU law in relation to cartels. They add in that context, in essence, that, since the information whose publication is proposed relates to them more than to the other undertakings that did not seek leniency, such publication would place them at a disproportionate disadvantage in proceedings before the national courts, which would jeopardise the effectiveness of the leniency programme.
83. In that respect, it must be noted, on the one hand, that the effectiveness of those programmes could be compromised if documents relating to a leniency procedure were disclosed to persons wishing to bring an action for damages, even if the national competition authorities or the Commission grant the leniency applicant an exemption, in whole or in part, from the fine which they could have imposed (see, by analogy, Case C‑360/09 Pfleiderer [2011] ECR I‑5161, paragraph 26). A person involved in an infringement of competition law, faced with the possibility of such disclosure, could be deterred from taking the opportunity offered by such leniency programmes, particularly since the documents submitted to the Commission or the declarations made to the latter are liable to be self-incriminating.
84. On the other hand, the right to obtain compensation for loss caused by a contract or conduct liable to restrict or distort competition can make a significant contribution to the maintenance of effective competition in the European Union (see Case C‑199/11 Otis and Others [2012] ECR, paragraph 42 and the case-law cited) and thus contribute to the protection of the public interest (see, to that effect and by analogy, DB Schenker v EFTA Surveillance Authority , paragraph 80 above, paragraph 132).
85. It is by applying those principles that the Court of Justice — ruling on a request for a preliminary ruling in the context of disputes relating to applications for access to investigation files held by national competition authorities made by undertakings that considered they had been adversely affected by infringements of competition law — held that the national courts adjudicating on such disputes must weigh up the respective interests in favour of disclosure of information provided voluntarily by leniency applicants and of protection of that information ( Pfleiderer , paragraph 83 above, paragraph 30, and Case C‑536/11 Donau Chemie and Others [2013] ECR, paragraphs 30 and 31).
86. It is necessary to assess the extent to which that case-law applies to the present case.
87. As can be seen from paragraph 64 above, the present case does not concern a challenge to a refusal to grant access to documents relating to a competition proceeding, which was at the heart of the cases that gave rise to the judgments in Pfleiderer , paragraph 83 above, and Donau Chemie and Others , paragraph 85 above, but rather the proposed publication by the Commission of certain information contained in documents or declarations which were submitted to it voluntarily by the applicants in order to benefit from the leniency programme.
88. In the present case, the applicants merely assert, in general terms, that the publication of information that they voluntarily communicated during the investigation in the hope of benefiting from the leniency programme would undermine the purpose of the Commission’s investigations.
89. In those circumstances, it must be noted that, even if that assertion were correct, it does not mean that there is a rule of law that the Commission would infringe simply because the proposed publication of information provided in the context of the leniency programme could have an impact on the implementation of that programme in future investigations. Furthermore, that particular argument involves the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised, and the interest of the Commission in safeguarding the effectiveness of its leniency programme. Those specific interests are not peculiar to the applicants, with the result that it is for the Commission alone to balance, in the circumstances of the case at hand, the effectiveness of the leniency programme, on the one hand, and the interest of the public and of economic operators in knowing the content of its decision and taking action in order to protect their rights, on the other.
90. That conclusion cannot be called into question by the applicants’ argument that, in essence, the information in respect of which they sought confidential treatment is not essential for understanding the operative part of the HPP decision and therefore does not fall within the scope of the Commission’s obligation to publish under Article 30(2) of Regulation No 1/2003. Without it even being necessary to examine whether or not that is the case, it suffices to note that, having regard to the finding in paragraph 80 above, the aim of Article 30(2) of Regulation No 1/2003 is not to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is more complete than the minimum necessary and so to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 79).
91. Likewise, the applicants’ argument based on Article 16(1) of Regulation No 773/2004 cannot be accepted since, as is clear from the foregoing, the applicants have not demonstrated that the information in respect of which they sought confidential treatment in the present case constitutes either business secrets or other confidential information.
92. In those circumstances, it is necessary to reject as ineffective the applicants’ argument that the confidential nature of the information at issue is not affected by the passing of time.
93. The reference made by the applicants to the judgment in Case C‑67/91 Asociación Española de Banca Privada and Others ([1992] ECR I‑4785) is irrelevant in the present case since it differs in an essential respect from the present case.
94. Without it even being necessary to point out the differences between Article 20(1) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), and Article 28(1) of Regulation No 1/2003, which replaced it, it suffices to note that the judgment in that case concerned the use by national authorities, as evidence, of information gathered by the Commission from undertakings which had not been referred to in the Commission’s decision penalising an infringement of competition law, published in accordance with the conditions laid down in Article 21 of Regulation No 17, the Court holding that such use was precluded because it was for a reason other than that for which that information had been obtained ( Asociación Española de Banca Privada and Others , paragraph 93 above, paragraphs 35 to 38 and 47 to 54).
95. In contrast, as can be seen from Evonik Degussa v Commission , paragraph 34 above (paragraphs 170 to 175), the publication by the Commission of a non-confidential version of a deci sion that it adopts under Article 23 of Regulation No 1/2003, containing information that was voluntarily submitted to it by undertakings in order to benefit from the leniency programme, cannot be considered to be used for a reason other than that for which the information was obtained.
96. It follows that the second plea in law is unfounded and must be rejected.
The third plea in law, alleging frustration of the applicants’ legitimate expectations and breach of the principles of legal certainty and good administration
97. The applicants maintain that, in so far as it authorises the publication of a non-confidential version of the HPP decision containing information which they voluntarily submitted to the Commission under the leniency programme, the contested decision frustrates their legitimate expectations and thereby breaches the principle of legal certainty and the right to good administration guaranteed by Article 41 of the Charter of Fundamental Rights.
98. In that connection they argue, first of all, that the 2002 and 2006 Leniency Notices gave them precise assurances regarding the preservation of the confidentiality of the information which they had provided to the Commission in the context of their leniency application. Those assurances arose not only from the wording of those notices, in particular the reference to the fact that potential leniency applicants might be dissuaded from cooperating if it could impair their position in civil proceedings, as compared to undertakings which do not cooperate, but also from the Commission’s previous practice. The applicants emphasise that the Commission only recently changed its policy as regards the protection of statements and documents voluntarily submitted in the context of its leniency programme.
99. The applicants also contest the Commission’s argument that it was not its practice, until recently, to accept requests for confidential treatment of information that had been voluntarily submitted to it in the context of its leniency programme. In that regard, they cite several previous decisions in which the Commission imposed fines for infringement of Article 81 EC. Whilst the applicants acknowledge that there are cases in which decisions finding infringements of Article 81 EC were published without the information submitted to the Commission in the context of the leniency programme being redacted, that may have occurred because the undertakings which had submitted that information had not requested confidential treatment.
100. The applicants’ claim that their legitimate expectations also arose from the fact that the Commission had already published a non-confidential version of the HPP decision in 2007, that that version had not been presented as being provisional and that the rules applicable to publication did not provide for the possibility of publishing a more detailed non-confidential version of that decision. The present case differs, on that last point, from other cases in which the Commission published provisional non-confidential versions of decisions finding infringements of Article 81 EC, pending a definitive resolution of confidentiality issues.
101. The Commission and the intervener dispute those arguments.
102. In that respect, it must be emphasised, as a preliminary point, that, in accordance with the reasoning set out in paragraphs 34 to 36 above, the contested decision must be viewed in the context of the administrative procedure that led to its adoption and it therefore includes the positions adopted by the Commission as regards the proposed publication, in so far as they concern aspects which do not fall within the remit of the hearing officer.
103. It follows that the sole fact that the hearing officer was not competent to examine the applicants’ arguments alleging breach of the principles of the protection of legitimate expectations and legal certainty is without prejudice to the Court’s jurisdiction to adjudicate on such arguments in the context of the present action (see, by analogy, Evonik Degussa v Commission , paragraph 34 above, paragraph 133).
104. As to the substance, it must be pointed out that, in adopting rules of conduct such as those contained in the 2002 and 2006 Leniency Notices and announcing, by publishing them, that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of a breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, to that effect and by analogy, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 211, and Case T‑73/04 Carbone-Lorraine v Commission [2008] ECR II‑2661, paragraph 71).
105. Moreover, it is settled case-law that the right to rely on the principle of the protection of legitimate expectations applies to any individual in a situation in which an institution of the European Union, by giving that person precise assurances, has led him to entertain well-founded expectations (Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC [1987] ECR I‑1155, paragraph 44, and Case C‑537/08 P Kahla Thüringen Porzellan v Commission [2010] ECR I‑12917, paragraph 63).
106. In the present case, first of all, it is necessary to reject the applicants’ argument that the Commission is prohibited from making public, in any circumstances, information contained in leniency applications or statements made in the context of the leniency programme as a result of the 2002 or 2006 Leniency Notices.
107. It is true that paragraphs 32 and 33 of the 2002 Leniency Notice indicate that ‘[a]ny written statement made vis-à-vis the Commission in relation to this notice … may not be disclosed or used for any other purpose than the enforcement of Article 81 EC’ and that ‘[t]he Commission considers that normally disclosure, at any time, of documents received in the context of [a leniency application] would undermine the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation (EC) No 1049/2001’. It is also true that the Commission stated in its 2006 Leniency Notice, which was adopted after the period in which the applicants cooperated with the investigation that led to the HPP decision, first, that the initiatives taken by some undertakings to provide it with voluntary presentations of their knowledge of a cartel and their role therein ‘should not be discouraged by discovery orders issued in civil litigation’ (paragraph 6) and, furthermore, that ‘[o]ther parties such as complainants will not be granted access to corporate statements’ made in the context of the leniency programme (paragraph 33).
108. However, as the Commission rightly emphasises, those various commitments concern only the disclosure of documents which were voluntarily submitted by undertakings seeking to benefit from the leniency programme and statements made by those undertakings in the same context. Moreover, the Commission’s decision, to which it refers in its written pleadings, to refuse EnBW Energie Baden-Württemberg AG access to all of the documents in the administrative file relating to the procedure in Case COMP/F/38.899 — Gas insulated switchgear, must be understood in the light of those commitments.
109. Those commitments also shed light on the reason for the Commission’s decision to redact, in the more detailed non-confidential version of the HPP decision whose publication is proposed, all the information which could allow the identification, directly or indirectly, of the source of the information submitted to it by the applicants in order to benefit from the leniency programme.
110. In the second place, it must be noted that the distinction drawn in paragraphs 106 to 109 above is not contradicted by the statements made or views expressed by the Commission to which the applicants refer.
111. Thus, first of all, the passage in the letter sent by the Director General of DG COMP to a United States judge in October 2011, in which it was indicated that ‘[t]he Commission’s long standing policy is that the corporate statements specifically prepared for submission under the leniency programme are given protection against disclosure both during and after its investigation’, is irrelevant in the present case. As the Commission rightly notes, that passage merely reflects its willingness to protect statements made by undertakings in the context of the leniency programme from being disclosed. It cannot, however, be inferred from that passage that the Director General of DG COMP suggested the existence of a Commission policy guaranteeing the confidentiality of all information voluntarily submitted by an undertaking seeking the benefit of the leniency programme, particularly in the context of the publication of decisions that the Commission adopts on the basis of Article 23 of Regulation No 1/2003.
112. Analogous reasoning applies to the passage in the statements made by the Commission as an amicus curiae before the High Court of Justice (England & Wales) in November 2011, referred to by the applicants, since, in that passage, the Commission merely noted ‘[its] long established practice [that] the corporate statements specifically prepared for submission under the leniency programme are given protection against disclosure both during and after its investigations’.
113. As regards the reference to a meeting of the European Competition Network held on 23 May 2012, the applicants merely note that it was emphasised at that meeting that the protection from disclosure of leniency applications as such — and not, in principle, the information that they contain — was key for the effective enforcement of EU competition law.
114. As regards the applicant’s references to the views expressed by the Commission in the cases that gave rise to the judgments in Case T‑344/08 EnBW Energie Baden-Württemberg v Commission [2012] ECR, in Commission v EnBW Energie Baden-Württemberg , paragraph 62 above, and in Case T‑437/08 CDC Hydrogene Peroxide v Commission [2011] ECR II‑8251, they are irrelevant in the present case since, as the Commission rightly emphasises, those cases concerned either a decision refusing to grant access to the investigation file relating to an infringement of Article 81 EC, or a decision refusing to grant access to the table of contents of an investigation file relating to such an infringement. It follows that the views expressed by the Commission in that context could not have given rise to a legitimate expectation on the part of the applicants that the Commission would not make public any information that had been voluntarily submitted to it during the investigation in order to benefit from the leniency programme.
115. Lastly, the applicants submit that the Commission indicated, in a submission to the United States Antitrust Modernization Commission in April 2006 that, ‘disclosure of information submitted on a voluntary basis during an investigation can seriously undermine the effectiveness of the European Commission’s and other authorities’ antitrust enforcement actions.’
116. However, although that statement does indeed relate to the information submitted to the Commission in the context of leniency applications and not the leniency applications or the statements as such made in the context of those applications, it is nevertheless the case that the statement in question is, in that respect, an isolated case when set against the findings in paragraphs 111 to 114 above.
117. Moreover, the Commission rightly emphasises the difference between publication such as that envisaged in the present case and the disclosure of leniency information in the context of proceedings pending before the authorities responsible for pursuing and penalising competition law infringement in a non-Member State, such as the United States. As noted in paragraph 95 above, the disclosure of such information through a publication under Article 30 of Regulation No 1/2003 is not a use for a reason other than that for which the information was obtained within the meaning of Article 28(1) of that regulation, namely pursuing and penalising infringements of EU competition law. By contrast, the Commission was entitled to consider, without contradicting itself, that the rule laid down in Article 28(1) of Regulation No 1/2003 could be an obstacle to the disclosure to the authorities of a non-Member State of the content of leniency applications or of statements made to it in that context, without prejudice to any obligations of cooperation by which it might be bound pursuant to the EU’s international commitments.
118. In the third place, it is necessary to examine the applicants’ argument that their legitimate expectations also arose from the Commission’s previous practice not to disclose information that had been voluntarily submitted to it by undertakings in the context of leniency applications and in respect of which those undertakings had sought confidential treatment. According to the applicants, that practice is illustrated by the non-confidential version of the HPP decision published in 2007, which reflects their requests for confidential treatment and which, by contrast with other published versions of decisions penalising infringements of EU competition law, was not described as provisional by the Commission.
119. In that respect, it must be pointed out that even if the existence of such a practice were proved, it could not give rise to a legitimate expectation on the part of the applicants that the Commission would not change that practice in the future.
120. Although the principle of the protection of legitimate expectations is one of the fundamental principles of EU law, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by EU institutions in the exercise of their discretion will be maintained (Case 245/81 Edeka [1982] ECR 2745, paragraph 27, Case T‑29/05 Deltafina v Commission [2010] ECR II‑4077, paragraph 426 and the case-law cited).
121. In the present case, it can be seen from the examination of the second plea in law that the information, publication of which is opposed by the applicants, cannot be regarded, in view of their arguments in the administrative procedure and in the present judicial proceedings, as being confidential in nature.
122. The Commission enjoys a broad margin of discretion in determining whether or not to publish such information. Bearing in mind the principles recalled in paragraphs 60 and 61 above, Article 30(2) of Regulation No 1/2003 must be construed as meaning that the Commission’s obligation to publish is limited to setting out the parties concerned and the main content of the decisions referred to in the first paragraph of that provision with a view to facilitating the Commission’s task of informing the public of such decisions, having regard inter alia to the linguistic constraints connected with publication in the Official Journal . Conversely, that provision does not limit the Commission’s power to publish the full text, or at the very least, a highly detailed version of its decisions, if, resources permitting, it considers it appropriate to do so, subject to the protection of business secrets and other confidential information (see, by analogy, Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 76).
123. While the Commission therefore has a general obligation to publish only non-confidential versions of its decisions, it is not necessary, to ensure compliance with that obligation, to interpret Article 30(2) of Regulation No 1/2003 as conferring a specific right on addressees of decisions adopted under Articles 7 to 10, 23 and 24 of that regulation whereby they may prevent publication by the Commission in the Official Journal , and, where relevant, on the Commission’s website, of information which, though not confidential, is not essential for understanding the operative part of those decisions (see, by analogy, Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 77). Thus, the aim of Article 30(2) of Regulation No 1/2003 is not to limit the Commission’s freedom to publish, of its own volition, a version of its decision that is more complete than the minimum necessary and to include information whose publication is not required, in so far as the disclosure of that information is not inconsistent with the protection of professional secrecy ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraphs 69 and 79).
124. It therefore follows from that margin of discretion that, in accordance with the case-law cited in paragraph 120 above, even were the previous administrative practice referred to by the applicants to be established, they could not have any legitimate expectation that the practice in question would be maintained.
125. That conclusion is all the more pertinent in the present case since the publication of detailed information on an infringement of EU law is liable to facilitate the establishment of the civil liability of the undertakings responsible for such an infringement and thereby reinforce the application of EU law in the private sphere. It is also necessary to take account, in that regard, of the fact that the Commission emphasised, in paragraph 31 of its 2002 Leniency Notice and in paragraph 39 of its 2006 Leniency Notice, that ‘[t]he fact that immunity or reduction in respect of fines is granted cannot protect an undertaking from the civil law consequences of its participation in an infringement of Article 81 EC’.
126. It is also necessary to reject the applicants’ argument that, as a result of the publication of an initial non-confidential version of the HPP decision in 2007 which took account of the confidentiality claims they had made, they had a legitimate expectation that the Commission would not divulge the information submitted voluntarily during the investigation.
127. It is true that the Commission did not expressly describe that first non-confidential version of the HPP decision, published in 2007, as provisional.
128. However, it must be pointed out that, at that time, the Court had already interpreted Article 21(2) of Regulation No 17 — which corresponds, in essence, to Article 30(2) of Regulation No 1/2003 — as meaning that the aim of that provision was not to limit the Commission’s freedom to publish, of its own volition, a version of its decision that was more complete than the minimum necessary and to include information whose publication was not required, in so far as the disclosure of that information was not inconsistent with the protection of professional secrecy ( Bank Austria Creditanstalt v Commission , paragraph 59 above, paragraph 79). In that context, it must be held that the mere fact that the Commission published an initial non-confidential version of the HPP decision in 2007 and that it did not describe that version as provisional could not have given the applicants any precise assurance, within the meaning of the case-law cited in paragraph 105 above, that a more detailed non-confidential version of that decision would not be published at a later stage.
129. Moreover, since the applicants have not produced any evidence capable of establishing that the Commission made a specific commitment to them not to publish a non-confidential version of the HPP decision containing more information than that published on the website of DG COMP in September 2007, they cannot claim that a legitimate expectation arose from that initial publication alone.
130. Lastly, the complaints alleging a breach of the principles of legal certainty and of the right to good administration must also be rejected, since the reasoning put forward by the applicants in support of those complaints is essentially the same as that put forward in support of the complaint alleging breach of the principle of protection of legitimate expectations.
131. It follows that the third plea in law is unfounded and must therefore be rejected, and the action must be dismissed in its entirety.
Costs
132. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
133. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission and the intervener.
Operative partOn those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Akzo Nobel NV, Akzo Chemicals Holding AB and Eka Chemicals AB to pay the costs, including those relating to the proceedings for interim measures.
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