European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Professional secrecy is expressly protected by Article 28 of Regulation No 1/2003 of 16 December 2002. It prohibits, firstly, the use of such information for a purpose other than that for which it was requested and, secondly, the disclosure of information that is confidential by nature. This secrecy obligation, which is based on Article 339 TFEU, is imposed upon officials of the Union, the Commiss …

Professional secrecy

Under Article 7 of the Charter of Fundamental Rights of the European Union “[e]veryone has the right to respect for his or her private and family life, home and communications”. This principle has been relied upon several times in recent times, sometimes successfully, to oppose the Commission's investigative measures. The European Court of Justice thus conceded that during an inspection, both the undertaking and the members of its staff were authorized to submit requests for the protection of documents relating to their private life, and that the decision rejecting such a request constituted, if appropriate, a challengeable act . On the other hand, as the Court pointed out, the application can only succeed if it is made prior to the referral.

Similarly, a suspension of the enforcement of a decision to request information was granted in a case where the undertaking was required to provide a very large number of documents, including some containing sensitive personal data, which were not necessary for the Commission to demonstrate the presumed infringements . To resolve the issue, the General Court endorsed the use of an unprecedented ad hoc procedure, whereby the undertaking would first identify the documents containing sensitive personal data and communicate them to the Commission on a separate electronic medium. Secondly, those documents are placed in a virtual data room which is accessible to as limited a number as possible of members of the  team responsible for the investigation, in the virtual or physical presence of an equivalent number of the applicant’s lawyers. Thirdly, the members of the team responsible for the investigation will  examine and select the documents in question, while giving the  applicant’s lawyers the opportunity to comment on them before placing  the documents considered relevant on the file. In the event of continuing disagreement as to the classification of a document, the Director for Information, Communication and Media at DG Competition may be asked  to resolve the disagreement.

Case T-255/17 Les Mousquetaires et ITM Entreprises v Commission, Judgment of 5 October 2020, not available in English.

Cases T-451/20 R and T-452/20 R Facebook Ireland Ltd, Judgments of 29 October 2020 , LawLex202000003006JBJ and LawLex202000003005JBJ.

Respect for private and family life

The right of the undertaking, to make known its views during the procedure on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty is a fundamental principle of EU law . Pursuant to Article 27 (1) of Regulation No 1/2003, the Commission must hear the interested party before taking decisions penalizing it. The text draws up a limited list of Commission's decisions that cannot be taken without the interested parties having the opportunity to make known their views. Neither Article 18 nor Article 20 are included in this list. The right to be heard only deals with decisions taken in the context of legal or administrative procedures for the termination of an infringement or for a declaration that an agreement, decision or concerted practice is incompatible with the Treaty. This applies to the Statement of Objections . Thus, the fact that the Commission failed to carry out any investigation with respect to an undertaking, and did not contact it before issuing the Statement of Objections, does not affect the regularity of the procedure, insofar as the undertaking was given the opportunity to make known its views effectively during the administrative procedure . In effect, the Commission is not bound by any general duty to personally inform each undertaking of the proceedings concerning it at the initial stage of the investigation and the principle of adversarial proceedings does not apply prior to the Statement of Objections: it is only obliged to inform the undertaking of the first investigative measures which specifically concerns it .

The Commission must always however give the undertaking the opportunity to comment before imposing any fine based on Article 23  or periodic penalty payment based on Article 24 of it. For periodic penalty payments, this applies only before a decision which finally fixes the amount is taken. The procedure for adopting decisions imposing periodic penalty payments in fact involves two stages. In the first stage, the Commission fixes a periodic penalty payment not exceeding 5% of the average daily turnover in the preceding business year per day. That decision however cannot be enforced until the total amount of the periodic penalty payment, which is fixed definitively in another decision, has been determined. Accordingly, during first stage, an undertaking cannot object that the Commission has not given it an opportunity to state its views .

Case 100/80 through 103/80 Musique Diffusion française v Commission [1983] ECR 1825, LawLex200400003564JBJ.

Case 136/79 National Panasonic v Commission [1980] ECR 2033, LawLex200500004051JBJ.

Case C-521/09 P Elf Aquitaine SA [2011]  ECR p. I-8947, LawLex201400000102JBJ; Case T-584/08 Total SA, Judgment of 13 September 2013, LawLex201100000212JBJ.

Case T-40/10 Elf Aquitaine SA, Judgment of 6 February 2014, LawLex202000002077JBJ.

See however, Case T-181/22 Pharol, SGPS SA, Judgment of 2 October 2024, LawLex202400007275JBJ, considering that the determination of the value of sales in relation to the infringement is not one of the elements on which the Commission is required to hear the parties.

Case 46/87 Hoechst v Commission [1989] ECR 2859, LawLex200500005405JBJ.

Right to be heard

In the EU legal order, the existence of such a right must be recognized as a principle common to the laws of the Member States in regard to the private dwellings of natural persons. To oppose to the right of access in their premises by officials of the Commission, undertakings attempted to claim this fundamental right of defense. However, the Court of Justice refused to extend to business premises the principle of inviolability of the home . Firstly, it considered that the inviolability of business premises is not a principle common to the Member States since there are divergences between the various legal systems pertaining to the nature and degree of protection afforded to business premises against intervention by the public authorities. Article 8 of the European Convention on Human Rights, which claimants have also tried to rely on is only concerned with the development of the personal freedom of individuals and may not therefore be extended to business premises. The Court has therefore not admitted the existence of a fundamental right of inviolability of the home for undertakings. It only recognizes a right to the protection of business premises against the intervention by the public authorities if it is arbitrary or disproportionate. Regulation No 1/2003 indirectly confirms this case law as it now authorizes inspections in all premises where the Commission suspects that books or other business records may be kept, including the homes of directors, managers and other members of staff.

The inclusion within the body of EU legal rules of the Charter of Fundamental Rights of the European Union has apparently given undertakings a new basis on which to challenge raids in the homes of individuals. In effect, according to Article 7 of the Charter, “Everyone has the right to respect for his or her private and family life, home and communications”. However, in a case where the undertakings claimed that searches having taken place without prior judical authorization were in violation of the Charter and also of Article 8 ECHR, the General Court, while  finding that the inspections clearly interfered with the respect for private life, home and communications, held that they did not violate the fundamental principles insofar as the Commission is bound by the obligation to state reasons for its inspection decision and as remedies are available a posteriori . More recently, however, the General Court allowed the Commission to be in breach of the principle of inviolability of the home when its decision to order an inspection was based on sufficiently strong evidence .

In practice, access to premises is only a source of conflict when the undertaking opposes the inspection. In such cases, the Commission's officials may collect the necessary information without the cooperation of the undertaking but with the support of national authorities, which are required to provide assistance. The rights of defense of the undertaking in question are then governed by the national law that determines the appropriate procedural conditions. The Commission must comply with those national rules and provide the competent body with all information necessary to exercise its own supervision. This supervision is limited however; although it is within the powers of the national body to assess whether the measures of constraint envisaged are arbitrary or excessive in respect of the subject-matter of the investigation, it cannot substitute its own assessment of the need for the investigation for that of the Commission . The limitation of the national judicial authority's task to a supervisory role may go against the conception of certain internal laws of the Member States.

See Case 46/87 Hoechst v Commission [1989] ECR 2859, LawLex200500005405JBJ; Case 97/87 Dow Chemical Ibérica and others v Commission [1989] ECR 3165, LawLex200500004570JBJ; Case 85/87 Dow Benelux NV v Commission, [1989] ECR 3137, LawLex200500004565JBJ.

Case T-289/11 Deutsche Bahn and others, Judgment of 6 September 2013, LawLex201500000569JBJ; upheld in Case  C-583/13 P Deutsche Bahn AG, Judgment of 18 June 2015, LawLex201500000785JBJ. Also see Case T-325/16 Ceské dráhy a.s. c, Judgment of 20 June 2018, LawLex201800001736JBJ.

Case T-249/17 Casino, Guichard-Perrachon et Achats Marchandises Casino SAS (AMC); T-254/17 Intermarché Casino Achats and T-255/17 Les Mousquetaires et ITM Entreprises, 3 Judgments of 5 October 2020, not available in English. 

Case 46/87 Hoechst v Commission [1989] ECR 2859, LawLex200500005405JBJ; see also Case 97/87 Dow Chemical Ibérica and others v Commission [1989] ECR 3165, LawLex200500004570JBJ; Case 85/87 Dow Benelux NV v Commission, [1989] ECR 3137, LawLex200500004565JBJ.

Inviolability of the home 

Professional secrecy is expressly protected by Article 28 of Regulation No 1/2003 of 16 December 2002. It prohibits, firstly, the use of such information for a purpose other than that for which it was requested and, secondly, the disclosure of information that is confidential by nature. This secrecy obligation, which is based on Article 339 TFEU, is imposed upon officials of the Union, the Commission, and the relevant authorities of the Member States and their officials and representatives. It covers both confidential information and business secret. Such rights, e.g. the right to assistance are covered as of the preliminary investigation stage.

According to the General Court of the EU, professional secrecy only covers information meeting three cumulative conditions: i) the information is known to only a restricted number of persons; ii) its disclosure would cause serious harm to the person having disclosed it or to third parties; iii) the interests liable to be harmed are objectively worthy of protection . 

Some information is confidential due to the origin of its source. Such is the case of written communications between a lawyer and a client, provided that it is exchanged for the purposes and in the interests of the client's rights of defense and it emanates from a lawyer that is structurally, hierarchically and functionally independent . This protection stems from the fundamental right for any person to have the possibility to freely consult with his/her lawyer. Insofar as the confidentiality of this type of communication complies with legal principles and concepts common to the Member States, it is a general principle of EU law.

Protection of the principle of confidentiality covers both written communications exchanged after the initiation of the administrative procedure which may lead to a decision on the application of Articles 101 and 102 TFEU or to a decision imposing a pecuniary sanction on the undertaking, and written communications exchanged before the initiation of the administrative procedure. The mere fact that a document has been discussed with a lawyer is not sufficient, however, to give it the benefit of protection, which is reserved only for the documents stating the necessity or appropriateness of seeking legal advice on the conduct examined or on any follow-up action to be taken, e.g. an application for leniency .

The protection also concerns internal memoranda which merely repeat the wording of correspondence for circulation within the undertaking and submission to managers for their thoughts . By contrast, internal memoranda from the undertaking's in-house lawyers  or exchanges within an undertaking with in-house lawyers - even if they are members of the bar - bound by a relationship of employment to it  are not covered by confidentiality.

Case T-341/12 Evonik Degussa GmbH, Judgment of 28 January 2015, LawLex201700000950JBJ.

Case 155/79 AM & S v Commission [1982] ECR 1616, LawLex200500004095JBJ; excluding from protection any communications with a lawyer bound by an employment contract but still a member of the profession and subject to its rules of discipline and ethics: Case T-125/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II-3523, LawLex200700001480JBJ.

See Case T-125/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II-3523, LawLex200700001480JBJ: excluding from protection a memorandum set up by a law firm as part of a competition law compliance programme since the scope of this type of programme goes beyond the exercise of the rights of defense.

Case T-30/89 Hilti v Commission [1991] ECR II-1439, LawLex200500004636JBJ.

Commission Decision No 98/273/EEC of 28 January 1998, VW, LawLex200500004750JBJ; See also Case C-550/07 [2010], LawLex201000001057JBJ.

Case C-550/07 P Akzo Nobel Chemicals Ltd, Judgment of 14 September 2010, LawLex201000001057JBJ.

The transmission to the authorities of the Member States of the most important documents in Commission proceedings must take account of the undertaking's legitimate interest to have its business secrets remain undisclosed . According to Article 12 of Regulation No 1/2003, which sets out the legal rules applying to exchanges of information between the Commission and national competition authorities, the Commission and the competition authorities of the Member States may provide one another with and use in evidence any matter of fact or of law, including confidential information, provided that this information is only used for the purpose of applying Articles 101 or 102 TFEU and in respect of the subject-matter for which it was collected by the transmitting authority . An exemption from the obligation that information only be used for the purposes of applying Articles 101 or 102 TFEU exists where national competition law is applied in the same case and in parallel to EU competition law if this application leads to the same outcome. Transmitted information can be used in evidence to impose sanctions on natural persons where the law of the transmitting authority foresees sanctions of a similar kind in relation to an infringement of Articles 101 or 102 TFEU or, if that is not the case, where the information has been collected in a way which respects the same level of protection of the rights of defense of natural persons as provided for under the national rules of the receiving authority. In this case, however, the information exchanged cannot be used by the receiving authority to impose custodial sanctions.

Article 28 of Regulation No 1/2003 moreover requires the Commission and the competition authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States to refrain from disclosing information acquired or exchanged by them pursuant to the regulation and of the kind covered by the obligation of professional secrecy. However, the prohibition of disclosure does not guarantee that information will not be used by the receiving authorities. Information transmitted by the Commission therefore may neither be relied on in a preliminary inquiry, nor justify a decision based on the provisions of competition law. However, the authorities of the Member States could take that information into account in order to justify the initiation of a new national procedure aimed at applying the EU rules. Likewise, when the Commission wishes to transmit an allegedly confidential document to national authorities, it must adopt a reasoned decision which is open to an action for annulment . If the confidential nature is acknowledged, the disclosure to national authorities cannot take place (Regulation No 1/2003, Article 28).

Case C-36/92 P SEP v Commission [1994] ECR I-1911, LawLex200500005005JBJ.

Case C-469/15 P FSL Holdings NV, Judgment of 27 April 2017, LawLex201700000763JBJ: the rule does not apply to documents transmitted by other authorities,such as the customs authorities and finance police of a Member State.

Case T-39/90 SEP v Commission [1991] ECR II-1497, LawLex200500004655JBJ.

Disclosure of information to national authorities

By virtue of Article 15 of Regulation No 1/2003, the courts of the Member States may, in proceedings for the application of Article 101 or Article 102 TFEU, ask the Commission to transmit to them information in its possession. In spite of its relevance for victims of anticompetitive practices wishing to bring an action for damages, this regulation is rarely relied upon in the national courts.

Nevertheless, the development of private enforcement has, over the last few years, resulted in a significant increase in demands for the disclosure of documents in proceedings but on the basis of Regulation No 1049/2001 of 30 May 2001 regarding public access to Commission documents . Such requests are often met with categorical refusals from the Commission on the grounds of the more important imperatives of public enforcement and especially the need for effective protection of leniency applicants. The General Court initially opposed this trend laying down the principle that effective competition in the European Union can be guaranteed by means other than leniency programs such as damages actions brought by the victims of anticompetitive practices. Consequently, it found that the Commission could not base itself on the mere risk of harm to the effectiveness of these programs to refuse to disclose documents in its possession , especially when the decision was handed down  many years previously and the interest of an undertaking having taken part in a restrictive agreement to avoid an action for damages is not worthy of protection . The Court of Justice on the other hand held that there is a need to recognize the existence of a general presumption whereby the disclosure of the documents assembled by the Commission in proceedings for the application of Article 101 TFEU would, in principle, affect both the protection of the purpose of inspection activities, investigations and audits by the institutions of the EU and the commercial interests of the undertakings involved in such proceedings, even if the request for access concerns a case that is already closed . Moreover, neither Regulation No 1049/2001 nor Regulation No 1/2003 would prevent an undertaking having participated in an infringement to the competition rules from relying on the protection of its commercial interests. The European court has nevertheless accepted that the presumption can be rebutted by proof that it does not cover a document for which diclosure has been requested or where there is an overriding public interest justifying its disclosure, at the same time specifying that a Member State's interest in obtaining compensation for harm suffered is not an overriding public interest but a private interest . 

The request for disclosure can also be made to a national authority. In response to a reference for a preliminary ruling concerning the conditions under which access to documents relating to a leniency procedure can be refused in the context of a leniency procedure, the Court of Justice held that the national courts must, on a case by case basis, weigh up the interests protected by European Union law, the effectiveness of the compensation and that of the leniency programs . In application of that principle, a national rule cannot make access to documents by third parties wishing to bring an action for damages relating to national proceedings concerning the application of Article 101 TFEU, including access to documents made available under a leniency program, subject to the consent of all the parties to the proceedings .

Directive No 2014/104 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union  favors public enforcement over private enforcement. In effect, even though it recommeds ensuring that in all Member States there is a minimum level of effective access to the evidence needed by claimants and/or defendants to prove their antitrust damages claim and/or a related defense, it expressly excludes leniency applicants and those benefitting from a setttlement procedure.

On 5 August 2015, the Commission published a series of instruments consolidating its policy on the protection of leniency applicant and those wishing to use the settlement procedure. Having enshrined for the first time within a binding text the guiding principles of its leniency program , the Commission states that henceforth  information obtained pursuant to this Regulation No 773/2004 of 7 April 2004 shall only be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 of the Treaty. In particular, access to leniency corporate statements  or to settlement submissions will be granted only for the purposes of exercising the rights of defense in proceedings before the Commission. In addition, information taken from such statements and submissions may be used by the party having obtained access to the file only where necessary for the exercise of its rights of defense in proceedings before the European Union courts reviewing Commission decisions or before the courts of the Member States in cases that are directly related to the those in which access has been granted, where it may only concern the allocation between cartel participants of a fine imposed jointly and severally on them by the Commission or the review of a decision by which a competition authority of a Member State has found an infringement of Article 101 TFEU. The Commission also more generally provides that information that was prepared by other natural or legal persons specifically for the proceedings of the Commission and information that the Commission has drawn up and sent to the parties in the course of its proceedings may not be used in proceedings before national courts until the Commission has closed its proceedings against all parties under investigation by adopting a decision pursuant to Article 7, 9 or 10 of Regulation No 1/2003 or has otherwise terminated its proceedings . The Commission has been careful to ensure the coherence of these rules with the other procedural instruments. It has thus added point 35a to the Leniency Notice  in which it undertakes not to transmit leniency corporate statements to national courts for use in actions for damages for breaches of those Treaty provisions. Similar provisions on settlement submissions have also been inserted in the Communication on settlement procedures .  The Commission has also amended point 34 of the Leniency Notice adding that where an undertaking fails to comply with the provisions of Regulation No 773-2004 on the use of information obtained from the file, it may be regarded as lack of cooperation resulting in leniency being refused. Pecuniary and disciplinary sanctions may be imposed by national courts and bar councils against undertakings and their lawyers . 

Case T-437/08 CDC Hydrogene Peroxide Cartel Damage Claims [2011) ECR II-8251, LawLex201200000087JBJ.

New Article 26b of Commission Notice 2004/C 101/04 of 27 April 2004 on the co-operation between the Commission and the courts of the EU Member States, amended by Commission Notice 2015/C 256/04 of 5 August 2015, restates those provisions specifying that the information may be used in damages actions.

Commission Notice 2015/C 256/01 of 5 August 2015 amending 2006/C 298/11 of 8 December 2006.

Commission Notice 2015/C 256/02 of 5 August 2015, amending pt 39 of Notice 2008/C 167/01 of 2 July 2008.The rules are also reiterated at point 26 bis of Commission Notice on the cooperation between the Commission and the courts of the EU Member States:  Commission Notice 2004/C 101/04 of 27 April 2004, amended by 2015/C 256/04 of 5 August 2015.

These rules are also reiterated at pt 48 of Commission Notice 2005/C 325/07 of 22 December 2005, amended by 2015/C 256/03 of 5 August 2015.

Case T-344/08 EnBW Energie Baden-Württemberg AG, Judgment of 22 May 2012, LawLex201200000957JBJ.

Case C365/12 P EnBW Energie Baden-Württemberg AG, Judgment of 27 February 2014, LawLex201400000477JBJ.

Case T-380/08 Netherlands v Commission, Judgment of 13 September 2013, not available in English. 

Case C-360/09 Pfleiderer, Judgment of 14 June 2011, LawLex201200000058JBJ. See also Case T-534/11 Schenker AG, Judgment of 7 October 2014, LawLex201700001087JBJ.

Case C-536/11 Donau Chemie AG, Judgment of 6 December 2012, LawLex201300001049JBJ.

Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJEU L 349 of 5 December 2014.

Regulation No 773/2004, new Article 4a, inserted by Regulation No 2015/1348 of 3 August 2015, OJEU L 208 of 5 August 2015.

Regulation No 773/2004, new Article 16a, inserted by Regulation No 2015/1348.

Disclosure of information to national courts

The right to an effective remedy is enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, according to which:

"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice".

The provision, which partly reproduces the provisions of Article 6 ECHR, is more and more frequently invoked by undertakings in the context of competition inspections, in particular to challenge the legality of Article 20 of Regulation No 1/2003. However, the General Court has held that the fact that the inspections carried out under Article 20(4) of  Regulation No 1/2003 do not require a prior judicial warrant does not  violate the right to an effective legal remedy since inspection  decisions may be subject to actions for annulment based on Article 263 TFEU, which allows the EU court to carry out a review of the legality of  the measure in both fact and law . In a number of subsequent cases, the courts have emphasized that there are a number of legal remedies available to undertakings to challenge the conduct of competition inspections, even if, taken individually, they do not meet the conditions laid down in the case law of the European Court of Human Rights under Article 6 ECHR, relating to the existence of a factual and legal audit of the decision, the effectiveness of the remedy, its efficiency and a reasonable timeframe. In effect, undertakings may challenge an inspection decision by bringing an appeal against the Commission's final decision, against the inspection decision itself, against any decision imposing a sanction for obstruction, against a decision rejecting an application for protection of the confidentiality of lawyer-client relations or for protection of the privacy of members of its staff, or an application for a stay of enforcement of the decision, an application for interim measures against a decision rejecting an application for protection of the confidentiality of lawyer-client relations or an application for non-contractual liability against the Commission . The Court of Justice, hearing appeals against these judgments, endorsed the General Court's reasoning, stating that the right to an effective remedy in respect of inspections does not imply the right for an undertaking to raise all its objections in a single appeal . Lastly, the Commission's refusal to open an investigation does not infringe the right to effective judicial protection either, since the complainants have the right to appeal against this decision before the General Court .

Cases T-289/11, T-290/11 and T-521/11Deutsche Bahn AG, Judgments of 6 September 2013, LawLex201500000569JBJ.

Case T-249/17 Casino, Guichard-Perrachon et Achats Marchandises Casino SAS (AMC),  Judgment of 5 October 2020, (3 cases), LawLex202100004872JBJ; Case T-254/17 Intermarché Casino Achats, not available in English; Case T-255/17, Les Mousquetaires and ITM Entreprises, not available in English.

Case C-690/20 P Casino, Judgment of 9 March 2023, LawLex202400005920JBJ; Case C-693/20 P Intermarché Casino Achats SARL, LawLex202400005921JBJ and Case C-682/20 P, Les Mousquetaires SAS, LawLex202400005919JBJ.

Case T-480/15 Agria Polska sp. z o.o, Judgment of 16 May 2017, LawLex201700000889JBJ.

European Competition Law

222. Professional secrecy

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222. Professional secrecy

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