On 14 March 2017 the ECJ handed down its judgment [8] in an appeal by German chemicals company Evonik against a judgment [9] by the GC in 2015.[10] This provides clarification on the extent to which information provided in the context of a cartel leniency application may be published in the European Commission’s non-confidential public decision. The issue of access to this type of sensitive material is becoming increasingly significant in the context of private actions for damages in national courts.

In 2006 the Commission fined several participants in a hydrogen peroxide cartel. Evonik had provided the Commission with information on the arrangements in its leniency application. The point at issue in the GC and ECJ cases arose from the refusal by a Commission hearing officer[11] to review Evonik’s request that information which was supplied as part of its leniency application be excluded from the Commission’s public decision. 

The GC had supported the Commission’s view that it could publicly disclose such information and Advocate-General Maciej Szpunar reiterated this stance in his subsequent opinion. However, the ECJ has partially upheld the appeal. In particular, it held that the hearing officer is not limited to reviewing the disclosure of specifically confidential matters (such as business secrets and personal data) but must also examine any claim of confidentiality based on general principles of EU law. Therefore the GC had erred in law in finding that the hearing officer had been correct to decline competence to review Evonik’s objections to the publication on the basis of the principles of the protection of legitimate expectations and equal treatment.

The ECJ also concluded that the Commission is not prohibited from publishing information relating to the elements constituting the infringement of EU competition law which was provided in the context of a leniency application, as the leniency regime only affords protection in relation to (i) the determination of the fine and (ii) the non-disclosure of the documents and statements received in accordance with that regime. 

The ECJ clarified that “the publication, in the form of verbatim quotations, of information from the documents provided by an undertaking to the Commission in support of a statement made in order to obtain leniency differs from the publication of verbatim quotations from that statement itself. Whereas the first type of publication should be authorised, subject to compliance with the protection owed, in particular, to business secrets, professional secrecy and other confidential information, the second type of publication is not permitted in any circumstances”.[12]