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On September 10, 2019, the Court of Justice of the European Union (“CJEU”) upheld the order dismissing the application for interim measures filed by Lantmännen ek för and Lantmännen Agroetanol AB (“Lantmännen”). The interim measures sought to stop the disclosure of documents regarding the settlement procedure. The CJEU found that there was not enough evidence that these measures were urgent to prevent serious and irreparable harm.
In December 2015, the European Commission (“EC”) opened a formal investigation to assess possible manipulations of ethanol benchmarks. Lantmännen, one of the companies involved, applied for interim measures to suspend the EC’s decision requiring Lantmännen to disclose to the other companies the minutes of the meetings with the EC during the settlement procedure. In April 2015, the General Court (“GC”) dismissed this application, and the CJEU has upheld the GC’s decision.
The settlement procedure before the European Commission
Regulation (EC) 622/2008 and Communication of the Commission 2008/C167/01 govern settlement procedures, which allow parties subject to infringement proceedings conducted by the EC to acknowledge their participation in a cartel and their liability in exchange for a 10% fine reduction.
During settlement procedures, the parties discuss with the Commission the scope of the infringement, the possibility to access part of the evidence and even the range of the fine, which enables a settlement. After these settlement discussions, if a party wants to end the proceedings under the settlement procedure, it must submit an irrevocable settlement submission acknowledging its participation in the cartel. Also, the party may state the maximum amount of the fine it expects.
The settlement discussions between the EC and the parties are confidential vis-à-vis third parties, but if only some parties settle (hybrid settlements), the non-settling parties subject to standard proceedings will have access to the settlement submission of the settling parties.
The rules on settlement procedures do not mention if the parties should have access to the discussions with the EC before the settlement submission.
The hearing officer required Lantmännen to disclose all non-papers and minutes of its meetings with the EC during the settlement procedure to another company subject to the proceedings. In 2018, Lantmännen applied for interim measures seeking suspension of this hearing officer’s decision. The CJEU upheld the GC’s decision and dismissed Lantmännen’s appeal.
In its contested order, the GC assessed if the requested interim measures were urgent to prevent serious and irreparable harm. According to Lantmännen, the GC should have presumed that the documents were confidential, since (i) they had been exchanged during a settlement procedure; and (ii) the communications with the EC during the settlement discussions contained self-incriminating statements. However, the CJEU found that the GC did not have to apply this presumption of confidentiality. First, because the legal provisions on settlement procedures do not provide for this automatic presumption of confidentiality. Second, because in its application for interim measures Lantmännen did not claim the documents’ confidential nature arguing that they constituted business secrets or were covered by professional secrecy.
The CJEU did not find the urgency for adopting interim measures to prevent serious and irreparable harm, because Lantmännen did not prove that disclosing these documents would cause actual damage. Particularly because the main purpose of settlement procedures is that companies confirm their own wrongdoing and the settlement submission had already been disclosed to the non-settling parties who were requesting access to the documents.
There are two cumulative conditions to grant interim measures: (i) that they appear to be justified in fact and in law (fumus boni iuris); and (ii) that they be urgent (urgency condition). Since (ii) was not met, the CJEU did not even assess (i).
After the CJEU dismissed the appeal and the EC disclosed the documents to the non-settling parties subject to the infringement proceedings, Lantmännen withdrew the appeal before the GC against the EC decision, since the appeal only sought to prevent the EC from disclosing the documents of the settlement discussions.
CJEU’s conclusion is interesting in connection with the Damages Directive (Directive 2014/104/EU) and its transposition in Member States. This Directive clearly provides that settlement submissions are not acceptable evidence for national courts in actions for damages. The CJEU’s order casts doubt about whether this safeguard could also cover other documents and information exchanged with the EC during settlement procedures. Some Member States have not regulated settlement procedures, but they are considering to do so, like Spain. The CJEU’s order could give them the chance to expressly address this matter, which has created doubt for not being regulated in depth by EU law.
Authors: María López Ridruejo, Marie Trapet Llamas and Diego García Adánez.
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