On 16 November 2012, the President of the General Court granted requests for interim relief from Akzo Nobel (Case T-345/12) and Degussa (Case T-341/12). The Commission was thus prevented from publishing confidential information provided to the Commission on the basis of its Leniency Notice.
In 2006, the Commission adopted a decision in which Akzo Nobel and Degussa, amongst others, were fined for participating in a cartel concerning bleaching chemicals. Subsequently, in September 2007, the Commission published a non-confidential version of that decision on its website. Last year however, the Commission made known its intention to publish an extended non-confidential version of the 2006 decision. This extended version would also disclose information provided to the Commission on the basis of the Leniency Notice. This information had not been published before for reasons of confidentiality. Akzo Nobel and Degussa took the matter to court. At the same time both parties lodged interim relief proceedings in which they requested the President of the General Court to suspend the decision to publish the extended non-confidential version.
First of all, the President assessed whether the condition of urgency was satisfied. The President ruled that it was likely that the applicant's fundamental rights could be seriously and irreparably harmed if the application for interim measures was dismissed on the basis of lack of urgency. According to the President, the condition of urgency was clearly met.
The President then went on to assess whether there was a prima facie case. This means that at least one of the pleas put forward by the applicant(s) has to call for a detailed examination that has to be carried out in the main proceedings rather than by the judge dealing with the application for interim measures. The applicants had put forward that the contested decision infringes the obligation of professional secrecy guaranteed by Article 339 of the TFEU. The President found that the question on this matter could not be easily answered and held that there was a prima facie case.
Noteworthy is that the President held that in the main proceedings it will be important to ascertain whether the applicants could rely on the fact that the provided information would enjoy, as information which is inherently confidential, an enduring protection from publication. Furthermore, in the interim proceedings of Akzo Nobel and Degussa the Commission took the position that the implementation of the law on cartels by means of actions for damages is part of the penalty for infringements of competition law for the purposes of paragraph 33 of the Leniency Notice. The President found that it will be necessary to examine to what extent this argument can be reconciled with the position which the Commission defended in the cases EnBW Energie Baden-Württemberg (Case T-344/08) and CDC Hydrogene Peroxide (Case T-437/08). According to the Commission, it cannot be accepted that the protection of the professional secrecy of undertakings which cooperate in cartel proceedings should be affected by an application for access to documents by a third party based exclusively on private law interests.