Publication of the decision – EU

Pursuant to Article 30 of Regulation No 1/2003, the Commission publishes decisions finding the existence or the non-existence of an infringement, and those imposing fines. The publication shall state the names of the parties, the main content of the decision and any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. The Commission is thus free to publish decisions imposing a fine without the addressee of the decision being able to challenge it insofar as business secrets are protected. Where the Commission intends to publish information that an undertaking considers as covered by business secrecy, the undertaking may refer the matter to the Hearing Officer by virtue of Commission Decision No 2011/695 of 13 October 2011. In an application for non-disclosure of information received from an undertaking in order to obtain leniency, the Hearing Officer must not be limited to examining the rights of the undertaking arising solely from the rules intended to afford specific protection against disclosure to the public but must also apply the principles of the protection of legitimate expectations and equal treatment. On the other hand, the Hearing Officer cannot intervene where the DG COMP has already accepted a request for confidentiality.

Recently, the European court has adopted a restrictive interpretation of the concept of business secrets and professional secrecy which significantly affects the protection of undertakings. The only information now covered is that which is less than five year’s old, only known to a limited number of persons and of which the disclosure is likely to cause serious harm to the person having provided it or to third parties where the interests which may be harmed are objectively worthy of protection. The Commission is thus entitled to publish the names of an undertaking’s customers, information on volumes supplied and prices when the undertaking has itself disclosed that information to its competitors. Likewise, the publication of information in the context of a leniency application is regarded as not adversely affecting the rights of the undertaking. According to that hypothesis, the Commission cannot publish verbatim quotations from the statements made by an undertaking with a view to obtaining leniency, but only verbatim quotations of information from the documents provided by it in support of a statement made, provided that any information that might permit the identification of the source of the information communicated is deleted. The Commission’s general obligation to publish only non-confidential versions does not also prevent it from disclosing information that is not part of the main content essential for understanding the decision. Indeed, publication is of interest in two ways; it informs economic operators of the conduct that might result in sanctions and makes it possible for persons harmed by the infringement to know the details thereof in order, if need be, to claim their rights against the penalized undertakings.

Decisions may be published in various media: the Official Journal, the press, the Commission’s website. The result of publication is that decisions imposing fines on undertakings are enforceable within the meaning of Article 299 TFEU. They may be subject to enforcement according to the rules applicable in the Member State on the territory of which the publication takes place. The national authorities are required to affix the order for enforcement without any other control than ensuring the authenticity of the instrument. Enforcement can only be suspended by the Court of Justice by way of summary procedure in accordance with Article 278 TFEU.