The Cypriot Administrative Court issues an order within the framework of an interim application allowing the Pancyprian Organisation of Cattle Farmers (POCF) public Ltd to inspect the complaint document in its confidential version
Recourse no. 1848/2018 concerns the request of the Pancyprian Organisation of Cattle Farmers (POCF) Public Ltd (hereinafter the “Applicant”) for the annulment of the decision of the Cyprus Commission for the Protection of Competition (hereinafter the “CPC” or “Respondent”) no. 32/2018 dated 24/7/2018 (hereinafter the “Contested Decision”). According to the Contested Decision, a fine of €1.550.180,12 was imposed, following a finding of infringement of Article 6(1)(a) of the Law for the Protection of Competition (Law 13(I)/2008) (hereinafter the “Law”).
With the Contested Decision still being under review, the Applicant submitted an Interim Application dated 11/3/2020 (hereinafter the “Interim Application”), requesting permission from the Administrative Court for issuing an Order allowing the Applicant to inspect certain documents. The Respondent had refused to allow the Applicant to inspect the requested documents, claiming that they contain confidential information and refused to allow the Applicant to obtain copies thereof.
The documents which the Applicant was not allowed to inspect included the confidential version of the Complaint as initially submitted by the Complainants to the Respondent, and correspondence of the Complainants and other dairy-producing companies with the Respondent.
Submissions of the Involved Parties
Submissions of the Applicant
The Applicant submitted that whilst evaluating the classification of documents as confidential, the Respondent has an obligation to respect the Applicant’s right to an effective defence. It was additionally argued that the final decision regarding the confidential nature of the document and/or the information should have been sufficiently justified. According to the Applicant, this was not the case in the decision of the Respondent.
The Applicant also argued that during the investigation of the alleged infringements by the Respondent and during the trial of the Recourse by the Administrative Court, the Applicant should be granted the right to inspect the documents and/or information that the Respondent considered as confidential. Furthermore, the Applicant noted that the refusal of the Respondent to allow the inspection of specific documents and/or information was flawed and affected their legal rights.
Further to the above, the Applicant claimed that the inspection of the relevant documents and/or information does not infringe the principle of confidentiality and protection of business secrets. However, even if this was the case, had these principles been balanced correctly, they could not have been considered more important than the right of both parties to be heard.
The Applicant also submitted that the principle of equality of arms between the parties involved in the administrative proceedings, as well as the principle of transparency, mandate the respect of the right of the Applicant to be granted access to all documents and/or information that led the Respondent to the Contested Decision. Finally, the Applicant argued that the disclosure of the requested documents is necessary in order to ensure the effective judicial review of the Contested Decision.
Submissions of the Respondent
The Respondent submitted that the right to a fair trial had not been infringed since the Applicant was granted the opportunity to inspect and assess all non-confidential documents and/or information.
Furthermore, the Respondent argued that the disclosure to the Applicant of documents and/or information submitted by interested parties, including the Complainants, during the administrative proceedings, would undermine their legal obligation of respecting confidentiality, thereby causing severe damage to those parties.
Additionally, the Respondent maintained that effective judicial control could be achieved without disclosing the requested documents and/or information.
Administrative Court Decision
In relation to the confidential version of the Complaint, the Administrative Court highlighted that the Respondent had claimed that the Applicant had access to the confidential Complaint document during the entirety of the administrative proceedings.
The Administrative Court pointed out that the above claim of the Respondent was contrary to what the Respondent had originally submitted in their Objection to the Interim Application, and specifically that the Complaint had been disclosed to the Applicant, whilst the confidential information contained therein had been redacted. Furthermore, the Administrative Court noted that according to the Objection of the Respondent to the Interim Application, the latter had decided to maintain the confidentiality of certain elements of the Complaint document without, however, determining the said elements.
In light of the aforesaid, the Administrative Court held that the Respondent had not submitted any confidentiality matters concerning the original Complaint document during the administrative proceedings. Additionally, the Administrative Court ruled that no evidence had been found in the administrative file of the case regarding the confidentiality of certain elements of the document in question.
Considering the above, the Administrative Court held that the non-disclosure of the document of the Complaint, as originally submitted before the Respondent, is abusive and in contrast with the previous claims of the Respondent to the Applicant in relation to the matter.
Concerning the remaining five documents that the Applicant requested to be disclosed, the Administrative Court accepted the submissions of the Respondent. Specifically, the Administrative Court took into consideration the Respondent’s statement that the documents in question had not been used to evaluate prima facie alleged infringements, and therefore, their disclosure to the Applicant did not serve any purpose.
Nevertheless, the Administrative Court reserved itself to determine during the trial stage of the Recourse, whether or not the Respondent had relied upon these documents or part thereof in order to reach the Contested Decision, without revising its decision on confidentiality and without disclosing the said documents to the Applicant.
In conclusion, the Administrative Court issued an Order, allowing the Applicant to inspect the confidential version of the Complaint document as originally submitted before the Respondent within ten days from issuing the Order and allowed the Applicant to obtain a copy of the document.
The Administrative Court did not undertake a substantive examination of the Applicant’s request regarding the inspection of the documents and/or elements that the Respondent determined and/or claimed in the proceedings before it to be of confidential nature. More specifically, the Administrative Court did not attempt to balance the right to protection of confidentiality against the right of defence, considering the requirement of effective judicial protection and the right to a fair trial. Furthermore, the Administrative Court did not examine whether the relevant documents and/or elements were: i) confidential or not, ii) whether the Respondent relied on them to reach the Contested Decision, and iii) whether they would have been potentially valuable in safeguarding the right of defence of the Applicant in the judicial proceedings.
Concerning the document of the Complaint in its confidential form, and specifically in the form that it was originally submitted to the Respondent, the Administrative Court noted that during the administrative proceedings before it, the Respondent had not ruled that it contained confidential information. Therefore, it was held that the said document was abusively not disclosed in its entirety to the Applicant.
Regarding the remaining documents that the Applicant requested to inspect, the Administrative Court limited itself to accepting the Respondent’s statement that they had not been used for reaching the Contested Decision. Nevertheless, the Administrative Court reserved the right to examine during the trial of the Recourse whether the aforementioned documents and/or elements had been used or not by the Respondent in order to reach the Contested Decision.
It is submitted that the matter of whether the documents and/or elements were used or not by the Respondent could have been examined concurrently with the examination of the Interim Application of the Applicant rather than postponing the examination to the trial stage of the Recourse.
To conclude, the decision of the Administrative Court regarding the matter is keenly awaited, since the Administrative Court will determine whether the undisclosed documents and/or elements had indeed been taken into consideration by the Respondent in order to reach the Contested Decision, whilst at the same time being withheld from the Applicant.
The Decision of the Administrative Court can be found here (In Greek).