Gleiss Lutz obtains a landmark decision before the Court of Justice of the European Union on the publication of information from leniency applications

Gleiss Lutz has obtained a landmark decision before the Grand Chamber of the Court of Justice of the European Union limiting the European Commission’s powers to publish information from leniency applications. 

In the dispute decided on today, Evonik Degussa had been defending itself against the Commission’s plans to publish additional detailed information originating from leniency applications several years after the publication of the Commission’s decision, in the interest of private parties claiming damages.

In the judgment it delivered today, the Court of Justice of the European Union expressly recognized for the first time that information from leniency applications is protected even when it has been transferred to a European Commission decision or other document. The Commission must exercise restraint in publishing such information. In particular, it is not permitted to publish verbatim quotations from leniency applications. Instead, the Commission is obliged to take appropriate action to render unrecognizable the source of the evidence originating from the leniency applicants. As the Commission’s Hearing Officer wrongly considered that a decision on Evonik Degussa’s fundamental objections to publication did not fall within his responsibility, the Court of Justice annulled the Commission’s contested decision insofar. The outcome of this is that the Court of Justice largely upheld Evonik Degussa’s appeal.

In the same case, Gleiss Lutz had already obtained an extremely rare temporary order on Evonik Degussa’s behalf in 2016, prohibiting the European Commission from publishing information from the leniency application until the Court decided this case on the merits (see Press Release of 6 March 2016).

Evonik Degussa was represented before the Court of Justice of the European Union by the Gleiss Lutz lawyers Dr. Christian Steinle (partner, competition/antitrust, Stuttgart/Brussels) and Dr. Christian von Köckritz (partner, competition/antitrust, Brussels).