In its ruling of April 16, 2021, the Federal Administrative Court addressed the issue, the extent to which the WEKO is authorized to publish its final reports (BVGer B‑4139/2015). Its landmark ruling BVGE 2020 IV/3 In accordance with the decision of the German Federal Cartel Office, it affirmed the basis for this under antitrust law and also examined the publication for its conformity with data protection law.
The Competition Commission concludes the preliminary investigation procedure with a final report. In this report, it clarifies whether there are indications of an unlawful restriction of competition pursuant to Art. 5 or 7 KG. There is no right of appeal against the final report itself (E. 3.3). However, its publication is contestable as a real act (E. 3.5), of which the complainant had made use in these proceedings.
The Federal Administrative Court first found that Art. 48 para. 1 KG allows the competition authorities to publish their decisions and thus also provides a sufficient basis for the publication of final reports (E. 4.1, 9.1). In doing so, it confirmed its Fundamental judgment BVGE 2020 IV/3which had been confirmed in the meantime as a result of the appeal not being upheld (BGer 2C_250/2019). Subsequently, it examined whether the adjusted report respects business secrets, as required by Art. 25 para. 4 KG (E. 5.1). Now, in this respect, the authority is admittedly “a certain margin of judgment“It should also ensure that the published decisions remain comprehensible despite redactions (E. 5.2 and 5.5.6). Nevertheless, as in the case of business secrets pursuant to Art. 7 para. 1 let. g of the Federal Constitutional Court (BVGer A‑4494/2020, E. 4.2.3) – No actual weighing of interests held:
“If it is established that a trade secret is involved, it is protected. It must be protected and the facts concerning the trade secret may not be published.” (E. 5.2)
In the specific case, the court ordered with regard to three figures that the sales data and market shares mentioned therein were to be blacked out or at least indicated in bandwidths (E. 5.5.2 f.). In all other respects, it rejected the requests for redaction (E. 5.6).
In examining DPA compliance, the court performed a triage: While trade secrets are also protected here by the special rule of Art. 25 para. 4 KG “in general, i.e. without weighing up the interests involved” are protected, a balance must be struck with regard to the other personal data between the private interest in secrecy and the public interest in publication (Art. 19 para. 4 FADP; E. 6.5). Under certain circumstances, companies may therefore have to publish an adjusted version of such final reports “also accept if it is clear from the circumstances which persons or companies are hiding behind a pseudonym” (E. 6.5.1).
In the present case, the court gave priority to the public interest in legal certainty and transparency over the complainant’s private interest in its good reputation (E. 6.6). With regard to the key figures to be made anonymous, it upheld the appeal and referred the matter back to the Competition Commission in accordance with the recitals (E. 9.2).