Parties
Grounds
Operative part

Parties

In Case T‑474/04,

Pergan Hilfsstoffe für industrielle Prozesse GmbH, established in Bocholt (Germany), represented by M. Klusmann and F. Wiemer, lawyers,

applicant,

v

Commission of the European Communities, represented by A. Bouquet, acting as Agent, assisted by A. Böhlke, lawyer,

defendant,

APPLICATION for the annulment of Commission Decision (2004) D/204343 of 1 October 2004 in so far as it rejects the applicant’s request for removal of all references to it in the definitive published version of Commission Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑2/37.857 — Organic peroxides) (OJ 2005 L 110, p. 44),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 8 June 2006,

gives the following

Judgment

Grounds

Legal context

1. According to Article 287 EC ‘[t]he members of the institutions of the Community … and the officials and other servants of the Community shall be required … not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components’.

2. Article 20(2) of Council Regulation No 17: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑1962, p. 87), applicable in this case and headed ‘Professional secrecy’, provides that ‘[w]ithout prejudice to the provisions of Articles 19 and 21, the Commission … [its] officials and other servants shall not disclose information acquired by them as a result of the application of this regulation and of the kind covered by the obligation of professional secrecy.’

3. Article 21 of Regulation No 17, headed ‘Publication of decisions’, states as follows:

‘1. The Commission shall publish the decisions which it takes pursuant to Articles 2, 3, 6, 7 and 8.

2. The publication shall state the names of the parties and the main content of the decision, it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.’

4. Article 13(1) of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18), applicable to the present case, provides:

‘Information, including documents, shall not be communicated or made accessible in so far as it contains business secrets of any party, including the parties to which the Commission has addressed objections, applicants and complainants and other third parties, or other confidential information … The Commission shall make appropriate arrangements for allowing access to the file, taking due account of the need to protect business secrets … and other confidential information.’

5. Article 9 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ 2001 L 162, p. 21) provides:

‘Where it is intended to disclose information which may constitute a business secret of an undertaking, it shall be informed in writing of this intention and the reasons for it. A time-limit shall be fixed within which the undertaking concerned may submit any written comments.

Where the undertaking concerned objects to the disclosure of the information but it is found that the information is not protected and may therefore be disclosed, that finding shall be stated in a reasoned decision which shall be notified to the undertaking concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than one week from the date of notification.

The first and second paragraphs shall apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Communities .’

6. Under Article 1(1)(b) of Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ L 319, p. 1), the power of the Commission to impose fines or penalties for infringements of the rules of the European Economic Community relating to transport or competition is to be subject to a limitation period of five years in the case of infringements of provisions other than those concerning applications or notifications of undertakings or associations of undertakings, requests for information, or the carrying out of investigations.

Facts, procedure and forms of order sought

7. In 2002, the Commission began an investigation, under Regulation No 17, of European producers of organic peroxides, including the AKZO group, Atofina SA, Atochem’s successor (‘Atochem/Atofina’), and Peroxid Chemie GmbH & Co. KG, a company controlled by Laporte plc, now Degussa UK Holdings Ltd, Peróxidos Orgánicos SA, FMC Foret SA, AC Treuhand AG and the applicant, in respect of participation in cartels falling under Article 81 EC, including one main cartel and a number of regional cartels, on certain markets for organic peroxides.

8. On 27 March 2003, the Commission began formal proceedings and adopted a statement of objections, which was subsequently notified, inter alia, to the applicant. In its comments of 13 June 2003, the applicant contested, in essence, both the scope and the duration of its participation in the main cartel, stating that it only had sporadic contact with Peroxid Chemie and Atochem/Atofina between 1994 and 1996. It stated, however, that it had not had contact with the other undertakings in question. Thus, the investigation of any infringement by the applicant would, in any event, be time barred.

9. By letter of 10 December 2003, the Commission informed the applicant of its decision to close the proceedings against it.

10. In addition, by Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E‑2/37.857 — Organic peroxides) (OJ 2005 L 110, p. 44, ‘the peroxides decision’), the Commission imposed fines on Atochem/Atofina, Peroxid Chemie, AC Treuhand, Peróxidos Orgánicos and Degussa UK for breach of Article 81 EC. The decision was addressed to the abovementioned companies but not to the applicant.

11. In the operative part, the peroxides decision does not refer to the applicant’s participation in the infringement found. However, it is stated, inter alia, in recital 78 of the decision, in relation to the applicant:

‘After having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission, the Commission decided to close the proceedings against [the applicant] and [FMC Forest]. For [the applicant], the Commission considered it did not have enough evidence of [its] participation in the single and continuous infringement after 31 January 1997, the point in time when prescription applies …’

12. Subsequently, inter alia in recitals 156 to 177, the peroxides decision contains a detailed description of the applicant’s participation in the main cartel between, in particular, the AKZO group, Atochem/Atofina and Peroxid Chemie which lasted for a period from 1971 to 1999. In essence, the Commission found that the applicant did not participate directly and formally in the main cartel, but that its involvement was limited to a period from 1993 to 1996, by way of meetings and other anti‑competitive contacts with Atochem/Atofina and Peroxid Chemie, and the exchange of commercially sensitive data with them.

13. Finally, the peroxides decision states, in recital 319:

‘[The applicant] was an addressee of the statements of objections. [The applicant] is not an addressee of this Decision (see recital (78)), as there is no evidence that [the applicant]’s involvement lasted beyond 31 January 1997.’

14. By letter of 18 February 2004, notified on 19 February 2004, the Commission sent the applicant a copy of the peroxides decision and a summary of that decision. In the letter, the Commission informed the applicant that it intended to publish a non‑confidential version of both the peroxides decision and the summary, pursuant to Article 21 of Regulation No 17, and invited it to identify any passages which it considered to contain business secrets or other confidential information.

15. By letter of 4 March 2004, the applicant asked the Commission to remove from the version of the peroxides decision intended for publication all references to the applicant and its alleged offending conduct, in particular, those in recitals 15, 81, 106 (Table 4), and in recitals 120 to 123, 156 to 177, 184, 185, 188, 189, 202, and 270, on the ground that the applicant was not the addressee of the decision and that the proceedings which were initiated against it had been closed (recital 78 of the peroxides decision). It stated that certain passages in the peroxides decision, relating to the applicant’s involvement in the infringement established, in particular recitals 169 and 176, which had been disputed by the applicant in the course of the administrative procedure, were inaccurate. In any event, the business secrets in recital 45 (the applicant’s market share), in recital 106 (Table 4), recitals 168 and 175 (name of Mr S.), and recitals 173 to 177 and 510 (detailed assessment of the applicant in the context of acquisition negotiations with a third‑party) should be removed.

16. By letter of 6 April 2004, the Commission informed the applicant that it would omit every reference to it in the provisional version of the peroxides decision intended for publication, and attached the corresponding non‑confidential version. The Commission reserved its position, however, on the applicant’s request for confidential treatment concerning the definitive version of the peroxides decision intended for publication.

17. By letter of 13 April 2004, the applicant requested that the reference to its name in recital 15 and Table 4 of the peroxides decision also be removed, and subject to those amendments, it accepted the provisional publication of this decision.

18. By letter of 22 June 2004, the Commission sent the applicant the provisional non‑confidential version of the peroxides decision, in the form intended to be published shortly afterwards on the Commission’s Internet site, which did not contain any reference to the applicant.

19. By letter of 28 June 2004, the Commission informed the applicant of its intention to reject the request for confidential treatment concerning the reference to the applicant in the definitive version of the peroxides decision intended for publication. It stated that in that decision, the Commission had concluded that the applicant had committed an infringement of Article 81 EC, but was unable to impose a fine on it on account of the time bar. The Commission agreed, however, to remove from the non‑confidential definitive version of the peroxides decision, the name of the applicant’s manager, Mr S., and the references to the detailed assessment of the applicant in the context of acquisition negotiations with a third party, and to replace the applicant’s exact market share figures with bands of market share. Finally, the Commission informed the applicant that it could apply to the hearing officer under Article 9 of Decision 2001/462, in the event that it wished to maintain its request for confidential treatment.

20. By letter of 12 July 2004, the applicant asked the hearing officer to remove all references to the applicant from the definitive version of the peroxides decision intended for publication, in line with the provisional version published on the Commission’s Internet site. In that letter, the applicant repeated the arguments it had advanced in its letter of 4 March 2004 and stated that the incorrect reference to its alleged participation in the infringement established, in recitals 15, 45, 61, 66, 71, 78, 81, 106 (Table 4), 108, 120 to 123, 156 to 177, 184, 185, 188, 189, 202, 270, 271, 319, 328, 366, 399, 423 and 510, and point 1.3.1 of the index, had to be removed. In support of its request, the applicant submitted that this information could provide third parties with evidence for the purpose of actions for damages against the applicant and could harm its reputation on the market. In addition, once it has closed the investigation procedure in respect of the applicant, the Commission no longer has the power to accuse it of infringing Article 81 EC or to adopt a decision to this end which adversely affects its interests. Furthermore, the fact that the peroxides decision is not addressed to the applicant wrongly deprives the applicant of the possibility of bringing a direct action against that decision. Finally, the Commission’s approach is incompatible with the objective of the rules on limitation and the principles of legal certainty and the presumption of innocence.

21. By letter of 13 September 2004, the hearing officer adopted a first decision under the third paragraph of Article 9 of Decision 2001/462. In that decision, he refused to remove from the definitive version of the peroxides decision intended for publication the references made to the applicant – save for the name of Mr S., information relating to the detailed assessment of the applicant and the reference to the applicant’s market share, which were to be replaced by a band of market shares – on the ground that there were no business secrets, as the concept of a business secret presupposes that disclosure of the information in question will cause serious harm to the interests of the person concerned. First, as regards the risk of actions for damages under national law, the hearing officer concluded that the risk does not in itself cause serious and unjust harm to the applicant’s interests such as to justify protection of the disputed information. In the event that they are well‑founded, actions for damages before national courts are in fact the acceptable consequence of committing an infringement of Community and national competition law. The hearing officer stated that the applicant was not the addressee of the peroxides decision and that this decision, in the absence of a finding that the applicant had infringed Article 81 EC, was therefore not legally binding on national courts. Secondly, the hearing officer observed that any harm to the applicant’s reputation was the reasonable result of publishing the peroxides decision if the applicant had participated in the cartels established. Finally, the hearing officer stated that even if the findings in the peroxides decision were not established as a matter of fact, an issue which the hearing officer was not empowered to determine, this would not cause any serious and lasting harm to the applicant such as to render the disputed information a business secret.

22. In the same letter, the hearing officer also stated under a separate heading, entitled ‘Respect for the rights of defence’, that, for the purpose of safeguarding the applicant’s rights of defence, the information relating to its alleged participation in a regional cartel in Spain, set out in recitals 176, 262 and 328 of the peroxides decision, had to be omitted, because, as that that information had not been referred to in the statement of objections, the applicant had not been given the opportunity to make submissions on it.

23. By letter of 27 September 2004, the applicant stated its intention to begin proceedings before the Court of First Instance against the decision rejecting its request for confidential treatment, as set out in the hearing officer’s letter of 13 September 2004, and requested that publication of the definitive version of the peroxides decision containing references concerning the applicant be postponed until termination of those proceedings.

24. By letter of 1 October 2004, containing decision SG‑Greffe (2004) D/204343 (‘the contested decision’), the hearing officer repeated the reasons set out in his letter of 13 September 2004. The hearing officer also stated that the Commission would postpone publication of the peroxides decision, in the form described in the contested decision, until the applicant had been given the opportunity to apply to the Court for interim relief under Article 242 EC.

25. By letter of 15 October 2004, the applicant informed the hearing officer that it would not bring an application for interim relief, given the strict conditions laid down in the case‑law for such applications.

26. By letter of 18 October 2004, the hearing officer replied that, since the applicant had decided against bringing proceedings for interim relief, there was no longer anything to prevent the envisaged publication of the definitive version of the peroxides decision.

27. Subsequently, the Commission published, on the Internet site of its Directorate‑General (DG) for competition, the non‑confidential version of the peroxides decision, which contains references to the applicant and other information disputed by it.

28. By application lodged at the Registry of the Court of First Instance on 10 December 2004, the applicant brought the present action.

29. Upon hearing the report of the Judge‑Rapporteur, the Court (Third Chamber) decided to open the oral procedure. The parties presented oral argument and replied to the Court’s questions at the hearing on 8 June 2006.

30. The applicant claims that the Court should:

– annul the contested decision in so far as it rejects the applicant’s request for removal of all references to the applicant in the definitive published version of the peroxides decision,

– order the Commission to pay the costs.

31. The Commission contends that the Court should:

– dismiss the application,

– order the applicant to pay the costs.

Law

A – Admissibility of the application for annulment

1. Arguments of the parties

32. The Commission contests the applicant’s legal interest in bringing proceedings, and therefore, the admissibility of the present action.

33. It takes the view that, since the applicant decided not to apply to the Court of First Instance for interim relief and the peroxides decision has in the meantime been published with the disputed information, the applicant no longer has a legal interest in bringing proceedings against this decision. The applicant itself recognised its lack of legal interest in its letter of 27 September 2004, in stating that publication would render its application inoperative.

34. According to the Commission, the applicant does not in any way specify how the published information in question constitutes business secrets. In any event, annulment of the contested decision could not undo the fact that third parties had read the information and the probability that a similar situation would arise in the future is minimal. It is therefore doubtful that the annulment could give rise to legal effects (Joined Cases T‑480/93 and T‑483/93 Antillean Rice Mills and Others v Commission [1995] ECR II‑2305, paragraphs 59 and 60).

35. The Commission submits that the action is based on the false premise that the disputed information is of a binding nature. On the contrary, the findings relating to the infringements, such as those concerning the applicant – since they are only contained in the recitals of the peroxides decision and not formally expressed in the operative part – are not binding (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 315, Case T‑38/92 AWS Benelux v Commission [1994] ECR II‑211, paragraph 34, Case T‑145/89 Baustahlgewebe v Commission [1995] ECR II‑987, paragraphs 35, 55 et seq., and Case T‑156/94 Aristrain v Commission [1999] ECR II‑645, publication by extracts, paragraph 699). The Commission considers that the applicant’s argument that it has an interest in bringing proceedings because any annulment of the contested decision could form the basis of an action for damages against the Commission if it were ordered to pay damages in national proceedings, is purely hypothetical, it observes that the applicant is not the addressee of a decision finding an infringement of Article 81 EC which is binding on national courts.

36. The applicant submits, in essence, that its action against the contested decision is admissible.

2. Findings of the Court

37. As a preliminary point, the Court notes that the present action is directed against the contested decision, which was adopted on the basis of the third paragraph of Article 9 of Decision 2001/462, whereby the Commission rejected in part the applicant’s request for confidential treatment, on the ground that it related to certain passages of the non‑confidential peroxides decision intended for publication. The aim of the present action is not therefore to challenge the lawfulness of the peroxides decision as such. Furthermore, it is common ground that the time‑limit for any action against the peroxides decision, a copy of which was sent to the applicant on 19 February 2004, has expired and that, therefore, that decision has become final as regards the applicant to the extent that it is capable of producing definitive binding legal effects in regard to it.

38. Even though the applicant had the opportunity to bring an action in due time against the peroxides decision, but did not, it does not follow that it has no legal interest in bringing proceedings against the contested decision. Such an interest presupposes that annulment of the measure is of itself capable of having legal consequences (see Antillean Rice Mills and Others v Commission , paragraph 34 above, paragraph 59, and the case law cited, see also, to that effect, Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 21), that the appeal must therefore be likely, if successful, to procure an advantage for that party (see, by analogy, C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 21), and is justified by a vested and present interest in the annulment of that measure (order in Case T‑28/02 First Data and Others v Commission [2005] ECR II‑4119, paragraph 42).

39. In that regard, it must be borne in mind, first, that the question of whether annulment of the contested decision is capable of procuring an advantage for the applicant, and therefore giving rise to an interest in bringing proceedings, depends on an examination of an issue of substance, that is, the scope of ‘busi