The
European Court of Justice has clarified the scope of publication of leniency
information in the European Commission’s public cartel decisions and the role
of the Hearing Officer in conducting reviews of claims for redaction. The
scope of publication of sensitive information in the Commission’s cartel
decisions is increasingly important in the context of private actions for
damages in the national courts.
Evonik
Degussa appealed against a General Court judgment that upheld the Hearing
Officer’s refusal to grant confidential treatment to leniency information in
the decision in the hydrogen peroxide cartel. Evonik objected to the
proposed release of information that it supplied to the Commission about its
business relations in support of its leniency application. Evonik claimed
that it had supplied the information in the expectation that it would not be
disclosed publicly.
The
Court drew a distinction between the publication of verbatim quotations of
information from documents that a leniency applicant may provide in support of
its application – and verbatim quotation from the application itself. The
former can be published subject to compliance with the protection of business
secrets, professional secrecy and other confidential information, whereas the
latter must not be published under any circumstances. However, the
Hearing Officer must examine any objection based on a ground arising from rules
or principles of EU law relied on by the interested party in order to claim
protection.
The
case is likely to require a redefinition in the role of the Hearing Officer now
that it is confirmed that a claim for redaction of sensitive material is not
limited to the technicalities of the concept of business secrets or
professional secrecy and may be based on claims such as legitimate
expectations.
Case
C-126/15 P - Evonik Degussa v Commission, judgment of 14 March 2017
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