Interim Judicial Protection Against Publication of Confidential Information in Commission Antitrust Decisions

Abstract

The publication, in the name of transparency, of Commission decisions finding infringements of EU competition law is a powerful tool for enhancing the private enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’). Before publishing those decisions, the Commission must nonetheless be careful to afford ‘very special protection’ to the legitimate interest of the undertakings concerned in the protection of their business secrets and other confidential information. When preparing the non-confidential version of the decision to be published, the Commission involves those undertakings, which have the right to object and, where they consider it appropriate, to refer the matter to the Hearing Officer, whose decisions may in turn be challenged before the EU Courts. In such cases, interim relief is essential to safeguard the undertakings’ right to the protection of confidential information, as well as their right to effective judicial protection. The recent case law of both EU Courts on interim protection in this context is marked by a high degree of technicality and struggles to adapt the ordinary interpretation of the conditions required for the granting of interim measures to the specificities of this kind of case. This article examines several rather complex interlocutory orders in an attempt to extract the logic behind them.