Leniency applicant Evonik recently managed to successfully block
the publication of a more detailed version of an earlier cartel
decision. Time will tell whether this success is a Pyrrhic victory.
The European Court of Justice ruled that before a more detailed
version can be published, the hearing officer should first take
into account all of the leniency applicants' objections to
determine whether particular information may be disclosed. However,
the ECJ also found that the Commission is not prevented from
supplementing the extended cartel decision with information
provided by a leniency applicant. This ruling underlines that
applying for leniency may have the drawback of producing greater
exposure to damage claims. Potential leniency applicants should
therefore carefully consider whether a possible leniency grant will
outweigh the risk of further detailed disclosure in a future
non-confidential cartel decision, with a potentially larger group
of damages claimants as a result.
In 2007, the European Commission published an initial
non-confidential version of its decision to impose fines
totalling over EUR 388 million on seven companies for their
participation in a bleaching chemicals cartel. In line with the
Commission's leniency notice, Evonik was granted full
immunity from being fined in return for providing evidence of the
cartel to the Commission. In 2011, the Commission wanted to publish
a new and more detailed non-confidential version of its cartel
decision, containing information that had been voluntarily provided
by Evonik under the leniency programme. Evonik argued that this
information should be protected from disclosure, to safeguard,
among other things, the proper functioning of the Commission's
leniency programme; however, this argument fell on deaf ears at the
On appeal, the European Court of Justice ruled that the fact that immunity is granted
cannot protect a leniency applicant from civil damages claims. The
only protection available to leniency applicants is protection
immunity from, or reduction in, the fine, in return for
providing the Commission with evidence of the cartel, and
the Commission's non-disclosure of documents and written
statements which it has received in accordance with the Leniency
As a result, the Commission is allowed to publish verbatim
quotations of information included in the documents provided by a
leniency applicant, provided that business secrets, professional
secrecy and other confidential information is protected. It is for
the hearing officer to take account of all the arguments related to
general EU law principles raised by a leniency applicant to protect
the information's confidentiality. However, verbatim quotations
from the leniency statement itself may not be published under any
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