On April 2, 2019, the General Court dismissed an application by Swedish agricultural cooperative Lantmännen for interim measures to block the Commission from disclosing documents it had submitted in the course of the settlement procedure in the Ethanol Benchmarks[1] case to its co-defendants.[2]

Lantmännen was one of three defendants in the Commission’s investigation into an alleged manipulation of ethanol benchmarks, in which the three producers were suspected of coordinating submissions to the price-reporting agency Platts. All three companies initially entered into a settlement procedure with the Commission, but two subsequently dropped out to fight the charges—resulting in a so-called hybrid procedure. Lantmännen became the sole settlement participant and had at this stage submitted a number of non-papers. Upon receipt of a Statement of Objections, one of the non- settling parties requested access to Lantmännen’s submissions. Lantmännen initially provided a redacted version of the non-papers, but refused to provide a redacted version of call minutes, and ultimately objected to a disclosure of redacted non-papers and minutes to the Hearing Officer. By decision of January 28, 2019, the Hearing Officer decided that the Commission was entitled to grant access to the documents. Lantmännen lodged an appeal for annulment of the Hearing Officer’s decision to the General Court, which remains pending, and filed a parallel application to the General Court for interim measures to block the disclosure.

The General Court rejected Lantmännen’s request to block the disclosure as Lantmännen had failed to demonstrate the urgency for interim measures. While recognizing the irreversible nature of a document disclosure, the General Court reasoned that a disclosure of Lantmännen’s documents was unlikely to cause serious and irreparable damage. The General Court found that Lantmännen had not only failed to identify any specific information that could have harmed their interests, it had also failed to produce the documents for examination by the General Court.[3]

Against this background, the General Court did not have to weigh confidentiality interests against the defense rights of non-settling cartelists in hybrid settlement cases. In light of the ICAP jurisprudence,[4] confidentiality claims might get the short end of that stick. Although the facts are particular to this case, it remains to be seen whether this ruling might impact future settlement proceedings where potential settlers know that any non-redacted (or insufficiently) redacted information might have to be disclosed to the non-settling co-defendants.

On April 18, 2019, Lantmännen appealed the General Court’s order to the Court of Justice. It seems likely that the Court of Justice will confirm the end of the so-called “non-paper,” the concept of a written submission “for the Commission’s eyes only.” In light of the recent Intel judgment,[5] according to which the Commission must take minutes of every oral exchange with anyone active in the proceedings and put them on file, a survival of—less confidential, because written—non-papers would come as a surprise.

[1]      Ethanol Benchmarks (Case COMP/AT.40054).

[2]      Lantmännen and Lantmännen Agroetanol v. Commission (Case T-79/19 R) EU:T:2019:212.

[3]      Ibid., paras. 44– 54.

[4]      Icap and Others v. Commission (Case T-180/15) EU:T:2017:795. See also the recent judgment in Pometon v. Commission (Case T-433/16) EU:T:2019:201.

[5]      Intel v. Commission (Case C-413/14 P) EU:C:2017:632.