On 28 January 2015, the General Court ("GC") dismissed two applications (T-341/12 and T-345/12) that sought to prevent the Commission from publishing a new non-confidential version of an infringement decision containing information originating from leniency applications.
The two applicants, Evonik Degussa and Akzo Nobel, had applied for leniency which in 2003 revealed a cartel on the market for hydrogen peroxide and perborates. The Commission adopted an infringement decision in 2006 of which it published a non-confidential version in 2007. In 2012, the Commission decided to publish a new non-confidential version of the decision that would contain information originating from the applicants' immunity and leniency applications. The applicants sought to prevent the Commission from disclosing information originating from their respective leniency applications.
The present judgments mark the first time the GC rules on the Commission's ability to publish information originating from leniency applications. The recent GC and Court of Justice judgments on disclosure dealt with direct access to leniency documents, either on the basis of a request for access to documents on the basis of Regulation No 1049/2001 (the "Transparency Regulation") or in a civil procedure before a national court.
In the present judgments, the GC stated that the Commission's ability to disclose information concerning an infringement of EU competition law through the publication of a decision penalising an infringement cannot be conflated with allowing third parties access to documents contained in the Commission’s investigation file. Although the framework concerning access to documents under the Transparency Regulation is relevant for the question of what information the Commission is allowed to publish in a non-confidential version of an infringement decision, it is the Commission who prima facie decides what information can be published. According to the GC, the Commission has a broad margin of discretion in determining what information it will publish.
On the basis of these judgments, it can be concluded that while access to the actual leniency documents is governed by a strict framework on the basis of the Transparency Regulation that generally opposes disclosure of those documents, the Commission has been granted a broad margin of discretion for determining what information originating from those documents will be disclosed through the publication of a non-confidential version of an infringement decision. This may weigh in future considerations to apply for leniency, given that follow on litigants may eventually have access to this information.