EU court says Commission was wrong to name Pergan in cartel decision

EU court says Commission was wrong to name Pergan in cartel decision

	Published : Sun, 14 Oct 2007 20:53 By : Agencies Print this Story

BRUSSELS (Thomson Financial) - The EU's second highest court ruled that the European Commission was wrong to name German chemical company Pergan GmbH in a published version of its decision on a cartel in the organic peroxide market.

The Luxembourg-based Court of First Instance (CFI) found that a commission decision not to protect Pergan by confidential treatment and the EU executive's claim that the publication would not cause serious and unjust harm to the company misapplied the protection of professional secrecy.

The court said that although institutions have the power to publish acts which they adopt, they must comply with obligations of professional secrecy to prevent the disclosure of such acts or certain information in them.

In Dec 2003, the commission imposed fines on five companies for participating in a cartel on the organic peroxide market. Pergan was not fined and not mentioned in the operative part of the decision as being involved in the cartel.

However, in the recitals of the decision, the commission made reference to Pergan's role in the cartel.

The EU executive claimed Pergan had not been directly involved in the cartel and that its involvement was before Jan 31 1997 -- outside the time limits for prosecution.

The commission told Pergan it would close the procedure against it. Pergan, which contested both the extent and duration of its involvement in the cartel, requested that the parts of the decision referring to it should be deleted from the published version. The request was rejected by the EU executive.

The CFI said that if the commission is allowed to disclose to the public the details of an undertaking's infringement relating to proceedings which are time-barred, the infringement must 'at least' appear in the operative part of the decision and it must be addressed to the undertaking so it can contest the infringement in court.

An appeal, limited to points of law only, may be brought before the EU's highest court, the Court of Justice, within two months of its notification.

nina.chestney@thomson.com

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