CJEU case T-198/03 Bank Austria Creditanstalt – CJEU Judgment (European Union, 2006)

On 11th June 2002 the Commission of the European Communities found that the Bank Austria Creditanstalt AG (hereafter "Bank Austria") had taken part, from January 1995 to June 1998, in a cartel with several other Austrian banks, for which the Commission decided to impose a fine on it and the other banks concerned by the procedure. Afterwards, the Commission sent Bank Austria a draft non-confidential version of the decision imposing fines and asked for its permission to publish it. In response, Bank Austria asked the Commission to publish the decision imposing fines without the account of the facts relating to the year 1994 contained in Section 7 and to replace Sections 8 to 12 with a section of text proposed by itself. Despite discussions between the relevant services of the Commission and lawyers of all the banks concerned, they could not find an agreement on the version to be published in the light of the objections made by Bank Austria. Then, the competent director of the Commission’s Directorate-General for Competition, repeated the Commission’s view on the publication of the decision imposing fines and enclosed a revised non-confidential version of the decision. Therefore, Bank Austria asked the Hearing Officer to grant its request. The Hearing Officer provided Bank Austria with a new non-confidential version of the decision imposing fines, but Bank Austria still objected to the publication of that non-confidential version after. The Hearing Officer produced a revised non-confidential version of the decision and decided to reject Bank Austria’s objection to its publication. According to the Hearing Officer, the decision did not contain information to which confidential treatment is guaranteed by Community law. Consequently, Bank Austria lodged an application at the Registry of the Court of First Instance on 6th June 2003, in which Bank Austria claimed that the Court of Justice of the European Communities (CJEC) should annul the decision of the Hearing Officer. In its fourth plea, Bank Austria asserted that in numerous passages, the version at issue allows the natural persons who participated on its behalf in meetings, the purpose of which was to restrict competition, to be identified. It also stated that the publication of that information contravenes provisions of Regulation No 45/2001. Bank Austria contended that it was entitled to rely on this breach of Regulation No 45/2001 on its own account, since it may had to face actions for damages from the persons concerned and was required under employment law to provide assistance to members of its staff. Other pleas of Bank Austria will not be adressed for relevance purposes. The CJEC first recalled that Regulation No 45/2001 seeks to protect individuals with regard to the processing of personal data. Because Bank Austria is a legal person, it does not belong to the circle of persons which the regulation is intended to protect. It cannot therefore invoke an alleged breach of the rules which that regulation prescribes. Finally, the CJEC held that the arguments derived by Bank Austria from its supposed obligations towards its directors and employees under Austrian law could not invalidate that conclusion given that they consisted of mere unsubstantiated contentions. These arguments were therefore not sufficient to demonstrate the existence of Bank Austria’s personal interest in relying on a breach of Regulation No 45/2001. Hence, the CJEC held that this plea must be dismissed.