On January 28, 2015, the General Court of the European Union (General Court) authorized the European Commission (Commission) to publish a new and more detailed version of a penalty decision, including information submitted pursuant to its leniency program. This solution should cause undertakings wishing to make a leniency application to take into account the margin of appreciation conferred to the Commission to communicate the content of its penalty decisions.
Following the 2007 publication of its decision in the hydrogen peroxide cartel case (Decision), the Commission informed the fined undertakings in 2011 that it intended to publish a new and more detailed version with particular reference to the involvement of the parties in the operation of the cartel. The undertaking Evonik, which had provided extensive information to the Commission in support of its leniency application and had received immunity from fines on such basis, had expressed its opposition and had referred to the Hearing Officer in this regard. The Hearing Officer rejected the request and Evonik then brought an action before the General Court, which ordered the Commission to refrain from publishing the new version of the Decision pending judgment on the merits.
The General Court, in its judgment on the merits, rejected Evonik’s claims and thereby further consolidated the significant margin of appreciation of the Commission to include the content of leniency statements in its sanction decisions. The General Court first rejected Evonik’s arguments regarding the confidentiality of the information required to be published. According to the General Court, the information published in the decision could not be qualified as ‘business secrets’, even if related to Evonik’s business relationships or pricing policy, since such information was five or more years old, and given that Evonik had not proven that it still provided decisive insights on its commercial position.
Nor could the information benefit from the broader protection afforded to ‘professional confidentiality’. Indeed, such protection can only be granted if notably such information is ‘objectively worthy of protection’. In the present case, the General Court held that such condition was not satisfied. Actually, the undertaking’s interest in the nondisclosure of its detailed anticompetitive behaviour is not worthy of ‘any specific protection’, given the interest of the victims of the infringement in knowing the details thereof in order to claim damages and the possibility for the undertaking to lodge an appeal against the decision.
Finally, the General Court dismissed all of the arguments put forward by Evonik related to the protection of legitimate expectation. In doing so, it emphasized that the mere fact that the Commission had first published a non-confidential version of the decision in 2007, without clearly pointing out that it was temporary, did not entitle the applicant to assume that a new more detailed and nonconfidential version would not be published afterwards.
By giving to the Commission an extensive margin of appreciation to decide whether or not to disclose substantial information submitted in support of a leniency application, the General Court is clearly trying to facilitate the introduction of damages claims by victims of anticompetitive practices. However, this solution will impact the effectiveness of the limits set up by regulations and case law (especially following the consultation launched last December by the Commission on the recast of Regulation 773/2004) regarding access by the victims of anticompetitive practices to the Commission’s leniency file, especially if the Commission is justified in reconsidering the content of its decisions, years after their first publication.