The first case - the Court of First Instance judgment in Case T-198/03 Bank Austria Creditanstalt v. Commission - concerns a dispute between the Commission's Hearing Officer and one of the cartel participants over the publication of the decision imposing fines. They could not agree on the contents of the non-confidential version that could be made public. After some exchanges, the hearing officer produced a revised non-confidential version of the decision imposing fines and decided to reject the applicant’s objection to publication of the decision imposing fines. In accordance with third paragraph of Article 9 of Decision 2001/462, the hearing officer stated that that version of the decision imposing fines did not contain information to which confidential treatment is guaranteed by Community law. The applicant brought an action to annul that rejection.
The Court of First Instance dismissed all of the Commission's procedural pleas and in particular the plea that the decision of the hearing officer could not be reviewed. In so doing, the Court made an interesting comment about confidentiality and the protection of business secrets. It held that the aim of Article 9 of Decision 2001/462 is to provide, on a procedural level, for the protection required by Community law of information which has come to the knowledge of the Commission in the context of proceedings applying the antitrust rules. It added that:
The sphere of information covered by the obligation of professional secrecy extends beyond business secrets of undertakings (Opinion of Advocate General Lenz in Case 53/85 AKZO Chemie v Commission  ECR 1965, at 1977). A distinction should be drawn, in this respect, between the protection that must be afforded to information covered by the obligation of professional secrecy in relation to persons, undertakings or associations of undertakings having a right to be heard in the context of proceedings applying the competition rules, and that which should be afforded to such information in relation to the general public. The obligation on officials and other servants of the institutions not to disclose information in their possession covered by the obligation of professional secrecy, laid down in Article 287 EC and implemented, in the field of competition rules applicable to undertakings, by Article 20(2) of Regulation No 17, is mitigated in regard to persons on whom Article 19(2) confers the right to be heard. The Commission may communicate to such persons certain information covered by the obligation of professional secrecy in so far as it is necessary to do so for the proper conduct of the investigation. However, that power does not apply to business secrets, which are afforded very special protection (see, to that effect, AKZO Chemie v Commission, cited above, paragraphs 26 to 28). Conversely, information covered by the obligation of professional secrecy cannot be disclosed to the general public, irrespective of whether business secrets or other confidential information are involved.
But the Court of First Instance found in favor of the Commission on the substance and held that the publication of the non-confidential version was lawful. The applicant tried to argue that because the publication of a non-confidential version of the decision was not mandatory it must be unlawful. The Court disagreed and made this interesting general comment about publication and the transparency:
It cannot, however, be inferred from the principle of lawfulness that publication of measures adopted by the institutions is prohibited where it is not explicitly prescribed by the Treaties or by another act of general application. As Community law currently stands, such a prohibition would be incompatible with Article 1 EU, according to which, within the European Union, ‘decisions are taken as openly as possible’. This principle is reflected in Article 255 EC, which, subject to certain conditions, grants citizens a right of access to documents of the institutions. It is also expressed, inter alia, in Article 254 EC, which makes the entry into force of certain acts of the institutions subject to publication, and in numerous provisions of Community law which, like Article 21(1) of Regulation No 17, require the institutions to provide the public with an account of their activities. In accordance with this principle, and in the absence of provisions explicitly ordering or prohibiting publication, the power of the institutions to make acts which they adopt public is the rule, to which there are exceptions in so far as Community law, in particular through provisions ensuring compliance with the obligation of professional secrecy, prevents disclosure of such acts or of certain information contained therein.