European Union: General Court Issues Three Judgments On Access To File And Publication Of Business Secrets In Car Glass Cartel

In three judgments issued on 7 July and 15 July 2015, the General Court ruled on the right of third parties to access certain documents in the EU Commission's file in cartel proceedings and the right of addressees of a cartel decision to have certain information kept confidential when the Commission publishes the decision. The judgments arose from the Commission's 2008 decision in the car glass cartel case, in which the Commission imposed fines on four producers of car glass, including Pilkington Group Ltd ("Pilkington") and AGC Glass Europe SA ("AGC"), due to their involvement in a cartel between 1998 and 2003 (See VBB on Competition Law Volume 2008, No.11, available at www.vbb.com).

7 July judgment on right of access to file

In its judgment of 7 July 2015 (T-677/13), the General Court ruled on the right of AXA Versicherung AG ("AXA") to have access to the full version of the Commission's file index in the car glass cartel case ("Request 1") and to a series of documents in the file, which constituted approximately 90% of the entire file ("Request 2"). AXA had made this access request for the purposes of substantiating a damages claim against two of the four addressees of the decision. The Commission had granted AXA only partial access to the index and denied access to all of the documents requested.

As regards Request 1, the Court overturned the Commission's decision denying AXA access to the section of the index which described documents relating to leniency applications. The Court disagreed with the Commission's assertion that, besides applying the general presumption that providing this section of the index would undermine the protection of the purpose of inspections and investigations, pursuant to Article 4(2) of Regulation 1049/2001, the Commission had also relied on more specific grounds when invoking the exception provided for by Article 4(2). According to the Court, such an assessment based on more specific grounds could not be found in the contested Commission decision. Instead, according to the Court, the denial of access to the specific section of the index was based on general and speculative considerations that access would undermine the effectiveness of the Commission's leniency programme. The Court found that this consideration did not establish a conceivable risk of a concrete and actual impediment to the interests expressed by the Commission. Accordingly, the Court concluded that the Commission had failed to state to the requisite legal standard the reasons for its decision in respect of Request 1.

As regards Request 2, however, the Court found that, without violating its obligation to state reasons or committing a fundamental error of law and assessment, the Commission had correctly applied the general presumption under Article 4(2). According to the Court, the general presumption applied in this instance since the documents sought by Request 2 related to inspections and investigation activities in the sense of Article 4(2) of Regulation 1049/2001. This was because all of the documents had been created and assembled by the Commission in the framework of its investigation into suspected violations of the competition rules. The Court emphasised that this general presumption may be rebutted in relation to a specific document or where an applicant can establish a public interest in the dissemination of the document in question, pursuant to Article 4 (2) of Regulation 1049/2001. However, the Court found that AXA had failed to do so in this case.

15 July judgments on publication of information in the Commission's decision

In another development relating to the car glass cartel proceedings, on 15 July 2015, the Court issued two judgments on the appeals of Pilkington (T-462/12) and AGC (T-465/12) against the Hearing Officer's rejection of most parts of both companies' requests for confidential treatment of certain information in the public, non-confidential version of the Commission's decision.

In 2008 and 2009, the Commission informed Pilkington and AGC of its intention to publish a non-confidential version of the car glass decision and asked both parties to identify any confidential information or information containing business secrets. The Commission did not, however, accept the parties' requests relating to all of the information that the parties wished to keep confidential. The information that was not accepted as confidential was information relating to customer names, descriptions of the products concerned and information that could allow an individual customer to be identified, information on the volume of parts supplied, the allocation of quotas to each car manufacturer, and price agreements and information concerning natural persons who were members of staff.

In 2011 and 2012, Pilkington and AGC referred the matter to the Commission's Hearing Officer. In its decision, the Hearing Officer rejected parts of the parties' objections. Both parties appealed against the Hearing Officer's decision before the General Court.

The Court found that Pilkington was justified in objecting to the Hearing Officer's rejection of its claim for confidentiality in relation to a specific section of the decision that DG COMP had previously accepted should remain confidential. The Court ruled that, under Decision 2011/695 on the function and terms of reference of the Hearing Officer in certain competition proceedings, the powers of the Hearing Officer are limited by the request referred to him or her. Decision 2011/695 further stipulates that the Hearing Officer does not have the power to call into question decisions taken by DG COMP where those involve acceptance of a request for confidentiality.  As DG COMP had previously agreed to maintain confidential treatment to the specific section in question, the Hearing Officer could not remove this confidential treatment.

However, the Court rejected all of the remaining objections of Pilkington. Among other things, the Court found that, as regards information that could enable an individual customer to be identified, it could not be accepted that the identity of all the applicant's customers constitutes information which was only known to a limited number of persons since Pilkington itself had provided its competitors with a list of its customers as part of the cartel arrangement. The Court further found that the information concerned was historical since it was more than five years old and Pilkington had failed to demonstrate that confidential treatment of that information was necessary.

The General Court rejected all of AGC's objections. Among AGC's arguments were that both the 2006 Leniency Notice and the 2002 Leniency Notice contain provisions which create legitimate expectations, for all undertakings falling within their scope, that information voluntarily provided will remain confidential, as far as possible, even when the Commission's Decision is published. The Court however rejected this reasoning, finding that the Leniency Notices do not provide a cooperating undertaking any advantage other than obtaining immunity from a fine or a reduction of its fine.

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