Competition — Administrative proceedings — European market for hydrogen peroxide and perborate — Publication of a decision finding an infringement of Article 101 TFEU — Rejection of a request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Obligation to state reasons — Confidentiality — Professional secrecy — Legitimate expectations
Disclosing information concerning an infringement of EU competition law through the publication of a decision penalising that infringement, on the basis of Article 30 of Regulation No 1/2003, cannot, in principle, be conflated with allowing third parties access to documents contained in the Commission’s investigation file relating to such an infringement. Thus, in the present case, the publication of information relating to the circumstances constituting the infringement that was not contained in the non-confidential version of the HPP decision published in 2007 — were it to take place — would not result in the communication to third parties of the leniency applications submitted to the Commission by the applicants, of the minutes of the oral statements made by the applicants in the context of the leniency programme, or of the documents that the applicants voluntarily submitted to the Commission during the investigation.
There is no rule of law that the Commission would infringe simply because the proposed publication of information provided in the context of the leniency programme could have an impact on the implementation of that programme in future investigations. Furthermore, that particular argument involves the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised, and the interest of the Commission in safeguarding the effectiveness of its leniency programme. Those specific interests are not peculiar to the applicants, with the result that it is for the Commission alone to balance, in the circumstances of the case at hand, the effectiveness of the leniency programme, on the one hand, and the interest of the public and of economic operators in knowing the content of its decision and taking action in order to protect their rights, on the other.
It is necessary to reject the applicants’ argument that the Commission is prohibited from making public, in any circumstances, information contained in leniency applications or statements made in the context of the leniency programme as a result of the 2002 or 2006 Leniency Notices.
In this judgment, the General Court confirmed that the Commission could in principle publish a non-confidential version of a cartel decision containing information submitted voluntarily by a cartel participant in an immunity application. No rules prevent the Commission from publishing such a version so long as it refrains from disclosing any business secrets of the cartel participant involved and the actual documents submitted in the immunity or leniency application. In those circumstances, the applicants’ legitimate expectations and right to good administration would not be infringed.