Presenting Public Knowledge: Leniency Programmes and Cartels
By his opinion of 21 July 2016 in Case C-162/15 P, Evonik Degussa, Advocate General (AG) Maciej Szpunar of the EU Court of Justice confirmed that information on the functioning of a clandestine cartel, even when it originates from the leniency statements, is not protected from publication in non-confidential versions of decisions by the European Commission (Commission). The opinion gives clear guidance on the alleged conflict between the protection of the rights of leniency applicants on the one hand and on the other hand the right of access to information of the public in general and persons potentially harmed by the reported anticompetitive conduct in particular. This guidance is not only relevant for the future publication practice of the Commission, but also for the interpretation of the access to information provisions of the new Damages Directive.
Relevant facts
The proceedings before the EU courts in Luxembourg concerned the rejection by the Hearing Officer at DG Competition of Evonik Degussa’s request to omit from publishing a new, more complete, non-confidential version of the Commission decision of 3 May 2006 finding an infringement of Article 81 EC and Article 53 EEA in the hydrogen peroxide and perborate sector (HPP Decision). Evonik Degussa was the first applicant to provide substantial evidence and information on the infringement under the Commission’s 2002 Leniency Notice and therefore benefited from full immunity from fines.
In its decision the Hearing Officer disagreed with Evonik Degussa that all information which had been communicated to the Commission under the leniency programme must automatically be regarded as confidential or being covered by professional secrecy. Further, the Hearing Officer considered that the interest of an infringing undertaking in relation to its unlawful conduct not being disclosed to the public, including potentially damaged third parties, is not worthy of protection.
In setting a balance between the different parties’ legitimate interest and the need to safeguard the effectiveness of the leniency programme, the Commission agreed to delete from the extended non-confidential version for publication of the HPP Decision only information that would directly or indirectly enable the identification of the source of the information communicated under the 2002 Leniency Notice, and likewise the names of the appellant’s collaborators.
Evonik Degussa brought an action for annulment of the decision by the Hearing Officer on 2 August 2012. By judgment of 28 January 2015 in Case T-341/12, the EU General Court sided with the Commission in considering that published non-confidential versions of Commission decisions can contain information on the functioning of a cartel that is taken from leniency statements. This judgment has been appealed and is now before the EU Court of Justice, advised on the issues at stake by AG Szpunar.
Brief analysis
While making a distinction between the material leniency statement as such and the information contained therein, AG Szpunar explains that information cannot be classified as confidential or as being covered by professional secrecy solely because it was contained in statements submitted in the context of cooperation under the Commission’s Leniency Notice. AG Szpunar emphasizes that, independent of the source, any information which relates to the functioning of a cartel does not merit protection.
Further, AG Szpunar clarifies that “in deciding to report the cartel, a leniency applicant must be aware that the information communicated in the context of its cooperation will be an important source of information and will be extensively used by the Commission in order to establish and describe the facts, including in the non-confidential version of the decision. Thus, the leniency applicant must accept that, apart from direct quotations from his statements and other information that would allow him to be identified as a source, the information communicated to the Commission will be reported in its decision, including in the public version”.
AG Szpunar concludes that the information originating from leniency statements may be contained in public versions of cartel decisions provided that the link enabling their source to be identified is removed. It is also clear from the opinion that the Commission must publish, in a timely manner, a detailed description of the facts constituting the infringement that is non-protected information.
In a remarkable step at the end of his opinion AG Szpunar makes some general statements on the interpretation of the access to information provisions in Articles 5 to 8 of Directive 2014/104/EU on actions for damages resulting from infringements of competition law, which have to be implemented into national law by the Members States by the end of this year. In this respect he underlines that “public access to the information relating to the unlawful facts is a fundamental element of actions for damages, since it allows injured third parties to ascertain the course taken by the cartel and facilitates the establishment of the facts relating to the existence and the extent of liability, with respect to all the participants.”
Importance
Should the EU Court of Justice follow the opinion of AG Szpunar it would provide much needed guidance on the alleged conflict between leniency programmes and the interest of parties potentially harmed by the competition law infringements to obtain the relevant factual information. The publication of detailed cartel decisions by the Commission, including decisions under its Settlement Notice, will be a benefit to the functioning of Regulation 1049/2001 on access to documents and to the proper application of the national provisions implementing Articles 5 to 8 of Directive 2014/104/EU. The confirmation that facts relating to the substance of a competition law infringement are not worthy of protection, even if submitted in the context of a leniency application, would prevent lengthy disputes on confidentiality claims in the future. Most importantly, timely publications of meaningful cartel decisions will put damaged persons in a position to have knowledge of whether they are affected by an infringement and to enforce justified compensation claims effectively, while avoiding unmeritorious actions.
The views expressed by the author are purely personal, based on publicly available information, and do not in any way whatsoever engage the entity he served, serves or might serve in the future.
