In its judgment in Case T-474/04 the Court of First Instance annulled a decision of the Commission, taken by the antitrust Hearing Officer, to publish a decision finding antitrust violations containing references to the applicant, Pergan.
That sounds a bit weird. So here's the story. The Commission took a decision on 10 December 2003 (the peroxides decision) imposing fines on five undertakings for their participation in cartels on the market for organic peroxides. But the Commission did not fine Pergan nor did it find that it had breached the antitrust rules in the operative part of the decision. The Commission found that the proceedings against Pergan were time barred and that there was no need to refer to Pergan's participation in the infringement in the operative part of the peroxides decision, or to address the decision to it. The Commission did refer to Pergan in the grounds of the decision and described its alleged role in the cartels.
The Commission informed Pergan of the decision and sent it a copy informing it of its intention to publish a non-confidential version. Pergan then requested that all references to it be removed from the version to be published. That request was submitted to the Commission’s hearing officer. The hearing officer refused to remove from the definitive version the majority of the references made to Pergan on the ground that they were not business secrets.
Pergan then applied to the Court of First Instance to have the hearing officer's decision annulled.
The Court of First Instance agreed with Pergan and annulled the decision.
It held that the Commission had applied the obligation to respect professional secrecy in Article 287 EC too narrowly. The scope of that obligation went beyond protecting business secrets. According to the Court of First Instance, the protection of professional secrecy encompasses the principle of presumption of innocence. That presumption precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a decision bringing the administrative procedure to an end, unless that person has been able to challenge the substance of that decision. Because the operative part of the peroxides decision did not refer to it, Pergan could not and in fact did not challenge the peroxide decision itself.
The Court further held that, since the Commission’s findings relating to an infringement committed by an undertaking are capable of infringing the principle of the presumption of innocence, those findings must, in principle, be regarded as confidential as regards the public, and therefore as being of the kind covered by the obligation of professional secrecy. That principle stems from the need to respect the reputation and dignity of the person concerned as that person has not been finally found guilty of an infringement (see, by analogy, Case T‑15/02 BASF v. Commission , paragraph 604). The confidentiality of such information is confirmed by Article 4(1)(b) of Regulation No 1049/2001, which provides that information, whose disclosure would harm the protection of privacy and the integrity of the individual, is to be protected.