JUDGMENT OF THE GENERAL COURT (Second Chamber)
12 May 2015 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning two national competition proceedings — Documents submitted to the Commission by a national competition authority within the framework of cooperation provided for by EU law — Refusal of access — Exception related to the protection of the purpose of inspections, investigations and audits — Exception related to the protection of the commercial interests of a third party — No obligation on the institution concerned to carry out a specific and individual examination of the content of the documents covered by the application for access when the investigation at issue is definitively closed — No need for a measure of organisation of procedure requesting production of the documents at issue — Failure to take account of the individual situation of the applicant)
In Case T‑623/13,
Unión de Almacenistas de Hierros de España, established in Madrid (Spain), represented by A. Creus Carreras and A. Valiente Martin, lawyers,
applicant,
v
European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,
defendant,
supported by
Federal Republic of Germany, represented by T. Henze, K. Petersen and A. Lippstreu, acting as Agents,
intervener,
APPLICATION for annulment of the Commission decision of 18 September 2013 refusing to grant the applicant access to certain documents relating to correspondence exchanged between the Commission and the Comisión Nacional de la Competencia (CNC, Spanish national competition authority) with regard to two national proceedings initiated by the CNC.
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 14 November 2014,
gives the following
Judgment
Legal context
1. EU legislation on access to documents
1 Under Article 15(3) TFEU:
‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
…’
2 These principles and conditions are laid down in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
3 Article 2 of Regulation No 1049/2001 provides:
‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.
…
3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.
…’
4 Under Article 4 of Regulation No 1049/2001, concerning exceptions to the right of access:
‘…
2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
– commercial interests of a natural or legal person, including intellectual property,
– court proceedings and legal advice,
– the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.
3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.
5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.
6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.
7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’
5 Article 6(1) of Regulation No 1049/2001 provides:
‘Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 [EC] and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.’
6 Under Article 12(1) of Regulation No 1049/2001:
‘The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned.’
2. EU legislation on competition
7 Article 11 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) provides:
‘1. The Commission and the competition authorities of the Member States shall apply the Community competition rules in close cooperation.
…
4. No later than 30 days before the adoption of a decision requiring that an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption Regulation, the competition authorities of the Member States shall inform the Commission. To that effect, they shall provide the Commission with a summary of the case, the envisaged decision or, in the absence thereof, any other document indicating the proposed course of action. This information may also be made available to the competition authorities of the other Member States. At the request of the Commission, the acting competition authority shall make available to the Commission other documents it holds which are necessary for the assessment of the case. The information supplied to the Commission may be made available to the competition authorities of the other Member States. National competition authorities may also exchange between themselves information necessary for the assessment of a case that they are dealing with under Article [101 TFEU] or Article [102 TFEU].
…’
8 Article 27(2) of Regulation No 1/2003 provides:
‘The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.’
9 Under Article 28(2) of Regulation No 1/2003:
‘Without prejudice to the exchange and to the use of information foreseen in Articles 11, 12, 14, 15 and 27, the Commission and the competition authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States shall not disclose information acquired or exchanged by them pursuant to this Regulation and of the kind covered by the obligation of professional secrecy. This obligation also applies to all representatives and experts of Member States attending meetings of the Advisory Committee pursuant to Article 14.’
Background to the dispute
10 On 25 February 2013, the applicant, Unión de Almacenistas de Hierros de España, submitted two initial applications to the European Commission for access to all of the correspondence exchanged, under Article 11(4) of Regulation No 1/2003, between the Commission and the Comisión Nacional de la Competencia (CNC, Spanish national competition authority) with regard to two national proceedings initiated by the CNC pursuant to Article 101 TFEU.
11 After obtaining the opinion of the CNC, the Commission replied to the applicant’s two initial applications by letter of 11 April 2013. It granted access to the acknowledgements of receipt that its Directorate-General (DG) for Competition had sent to the CNC. It also stated that its DG had not sent any reply following the provision by the CNC of the information mentioned in Article 11(4) of Regulation No 1/2003. Lastly, it refused access to the other requested documents, namely the draft decisions of the CNC concerning the two national proceedings at issue and the summaries in English of these two cases drawn up by the CNC.
12 By letter of 25 April 2013, the applicant made a confirmatory application under Article 7(2) of Regulation No 1049/2001. In that letter, it also made a fresh initial application for access to the register and the summaries of possible discussions between the Commission and the CNC concerning the two national proceedings initiated by the CNC.
13 By letter of 18 September 2013, the Commission expressly refused the confirmatory application made in the letter of 25 April 2013 (‘the contested decision’).
14 In the contested decision, the Commission relied on three grounds: first, the exception related to the protection of commercial interests laid down in the first indent of Article 4(2) of Regulation No 1049/2001; second, the exception related to the protection of inspections laid down in the third indent of Article 4(2) of Regulation No 1049/2001; and, third, the exception alleging impairment of the institution’s decision-making process laid down in the second subparagraph of Article 4(3) of that regulation. It also refused, on the basis of Article 4(6) of Regulation No 1049/2001, to grant partial access to the documents at issue.
15 The Commission relied in essence on the existence of a general presumption according to which the disclosure of documents such as those at issue would undermine the protection of the commercial interests of the undertakings concerned and the protection of the purpose of investigations.
16 The Commission stated that the case-law of the Court provides for the application of such a general presumption, particularly as regards the control of concentrations.
17 In the Commission’s view, that presumption applies, by analogy, to documents submitted to it by a national competition authority under Article 11(4) of Regulation No 1/2003.
18 The Commission also justified its refusal to grant partial access to the documents at issue by reference to the existence of such a presumption.
19 Moreover, the Commission replied to the arguments that the applicant had put forward in its confirmatory application. It stated in particular that the fact that the applicant was a non-profit organisation had no bearing on the right of access to documents, since the purpose of Regulation No 1049/2001 is to safeguard the general public’s right of access to the documents of the institutions and not to enact rules to protect the individual interests of a particular person.
20 The Commission also pointed out that the discussions it had initiated with the national competition authorities called for a climate of mutual trust between it and those authorities and that the latter were only willing to participate in such discussions if the views they expressed in that context were confidential.
21 Lastly, the Commission found that there was no overriding public interest capable of justifying disclosure of the documents at issue.
Procedure and forms of order sought by the parties
22 By application lodged at the Court Registry on 27 November 2013, the applicant brought the present action.
23 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to produce the documents to which it refused access, so that the Court can review them and determine whether the arguments put forward in the application are well founded;
– order the Commission to pay the costs.
24 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
25 By document lodged at the Court Registry on 16 May 2014, the Federal Republic of Germany applied for leave to intervene in support of the Commission.
26 By order of the President of the Second Chamber of the General Court of 9 July 2014, the Federal Republic of Germany was granted leave to intervene in this case in support of the form of order sought by the Commission. Since the application to intervene was lodged after the expiry of the deadline set in Article 115(1) of the Rules of Procedure of the General Court, with the extension on account of distance provided for in Article 102(2) thereof, the Federal Republic of Germany was given leave to submit its observations during the oral procedure, on the basis of the report for the hearing communicated to it.
Law
1. The claims for annulment
27 The applicant raises two pleas in law. By its first plea in law, it claims that the Commission did not carry out a specific and individual examination of its application. It contends that the contested decision is unlawful because no specific and individual examination was carried out.
28 By its second plea in law, the applicant challenges each of the three grounds relied on by the Commission (see paragraph 14 above). It claims that none of the exceptions on which the Commission based the contested decision allowed it to refuse access to the documents at issue, with the result that the contested decision is vitiated by an error of law in the application of the first and third indents of Article 4(2) and Article 4(3) of Regulation No 1049/2001.
First plea in law, alleging that the application for access submitted by the applicant was not subject to a specific and individual examination
29 It should be noted that, in the contested decision, the Commission did not carry out a specific and individual examination of the application for access submitted by the applicant.
30 The Commission argues that since it had reasonable grounds for presuming that access to the documents at issue would undermine the interests protected by the first and third indents of Article 4(2) and Article 4(3) of Regulation No 1049/2001, it was not required to conduct a specific and individual examination as to whether such access could be granted to the applicant.
31 It is therefore necessary to consider whether, as the Commission argues, the application of a general presumption serves to justify the refusal to grant access to the documents at issue, without there being any need to examine the content of each of those documents individually.
32 Such an analysis falls within the review of the application by the Commission of the relevant provisions of Regulation No 1049/2001 and, therefore, within the assessment of the merits of the second plea in law relied on by the applicant. Consequently, the second plea in law must be examined before a definitive answer is provided to the first plea.
Second plea in law, alleging an error of law in the application of the provisions of Regulation No 1049/2001
33 The applicant contends that the notion of investigation, as laid down in the third indent of Article 4(2) of Regulation No 1049/2001, refers to institutions or bodies of the European Union and not to national institutions or bodies.
34 It also claims that the CNC drew the appropriate conclusions from the investigations it had conducted by adopting final decisions, with the result that it is no longer possible for the Commission to invoke, in a legitimate manner, the exceptions related to the protection of inspections, commercial interests and the decision-making process. The fact that those decisions were the subject of court proceedings when the contested decision was taken is irrelevant in that regard, since any possible annulment of the decisions by a court could not result in the investigations being reopened, on account of the rules on the time-barring of infringements laid down in Spanish competition law.
35 The applicant also invokes considerations deriving from its individual situation. First of all, it relies on the fact that some of the requested documents were sent to it by the Spanish national authorities. It also states that it is the only legal person affected by the proceedings in question.
36 The applicant points out that it is a non-profit entity and does not pursue any business activities. Consequently, since it is the only legal person affected by the proceedings in question, the disclosure of the documents it requests is unlikely to undermine any commercial interests, within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001.
37 Lastly, the applicant states that, in the circumstances of the present case, the Commission was not involved in any decision-making process within the meaning of Article 4(3) of Regulation No 1049/2001, and that, furthermore, the documents at issue were not internal documents.
38 The Commission submits that the applicant’s arguments cannot be upheld and relies in particular on the general presumption that the disclosure of documents such as those at issue would undermine the protection of the commercial interests of the undertakings concerned and the purpose of investigations.
39 Before all else, it is necessary to consider whether the Commission correctly applied the first and third indents of Article 4(2) of Regulation No 1049/2001. To that end, the Court must first determine whether the documents at issue, which were sent to the Commission by a national competition authority under Article 11(4) of Regulation No 1/2003, are covered by an activity mentioned in the first and third indents of Article 4(2) of Regulation No 1049/2001 and, second, examine whether a general presumption applies to those documents.
Documents covered by an activity mentioned in the first and third indents of Article 4(2) of Regulation No 1049/2001
40 As a preliminary point, it should be noted that, under the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001, unless there is an overriding public interest in disclosure, the institutions are to refuse access to a document where disclosure would undermine the protection of, respectively, the commercial interests of a natural or legal person or the purpose of inspections, investigations and audits.
41 It is common ground that the documents were sent to the Commission by the CNC under Article 11(4) of Regulation No 1/2003.
42 Article 11(4) of Regulation No 1/2003 provides that, before the adoption of a decision requiring that an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption regulation, the competition authorities of the Member States are to provide the Commission with a summary of the case, the envisaged decision and, at the Commission’s request, other documents they hold which are necessary for the assessment of the case.
43 In the first place, the information sent to the Commission in the present case was collected by the CNC in the context of an investigation under Article 101 TFEU, the purpose of which was to assemble sufficient information and evidence to punish specific practices contrary to that provision (see, by analogy, judgment of 13 September 2013 in Netherlands v Commission, T‑380/08, ECR, EU:T:2013:480, paragraph 33).
44 The fact that the investigation in question was conducted by a public authority of a Member State and not an institution does not affect the inclusion of the documents in the scope of the third indent of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment of 6 July 2006 in Franchet and Byk v Commission, T‑391/03 and T‑70/04, ECR, EU:T:2006:190, paragraphs 121 to 124). It does not appear from the wording of that provision that the inspections, investigations and audits referred to are limited to those of the institutions of the European Union, unlike Article 4(3) of the regulation which seeks to protect ‘the institution’s’ decision-making process. Furthermore, the Court of Justice has held that the decision-making process established by Article 4(5) of Regulation No 1049/2001, relating to documents originating from a Member State, requires the institution and the Member State involved to confine themselves to the substantive exceptions laid down in Article 4(1) to (3) of the regulation. The Court also stated that it was possible for the legitimate interests of the Member States to be protected on the basis of those exceptions (judgment of 18 December 2007 in Sweden v Commission, C‑64/05 P, ECR, EU:C:2007:802, paragraph 83). These exceptions must therefore be interpreted as seeking to protect not only the activities of the institutions of the European Union, but also interests specific to a Member State, such as the protection of inspections, investigations and audits conducted by the services of the authority of that Member State.
45 In the second place, when determining — as in the two national proceedings at issue in the present case (see paragraph 10 above) — whether one or more undertakings have engaged in collusive behaviour which may significantly affect competition, the CNC gathers commercially sensitive information about the commercial strategies of the undertakings concerned, their sales figures, their market shares or their business relations, so that access to documents in such proceedings can undermine the protection of the commercial interests of those undertakings (see, by analogy, judgment in Netherlands v Commission, cited in paragraph 43 above, EU:T:2013:480, paragraph 34).
46 Consequently, the documents at issue, which derive from proceedings conducted by a competition authority of a Member State acting under Article 101 TFEU, relate to an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, and their disclosure is likely to undermine the protection of the commercial interests of a natural or legal person within the meaning of the first indent of Article 4(2) of that regulation.
47 It follows from the foregoing that, in the contested decision, the Commission was fully entitled to find that the documents at issue fell within the scope of the provisions mentioned in paragraph 46 above.
48 However, in accordance with well-established case-law, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (see judgment of 27 February 2014 in Commission v EnBW, C‑365/12 P, ECR, EU:C:2014:112, paragraph 64 and the case-law cited).
49 As stated in paragraph 29 above, in the contested decision the Commission did not carry out a specific and individual examination of the application for access submitted by the applicant.
50 However, the Commission justified its refusal to grant access to the documents at issue on the basis of the existence of a general presumption (see paragraphs 15 to 18 above).
51 It is therefore necessary to examine whether that presumption applies to documents submitted to the Commission by a national competition authority under Article 11(4) of Regulation No 1/2003.
Application of a general presumption
52 It should be recalled, at the outset, that Article 15(3) TFEU provides that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, are to have a right of access to the documents of the Union’s institutions, bodies, offices and agencies, subject to the principles and conditions defined in accordance with the ordinary legislative procedure. Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions. It is also apparent from that regulation, in particular from Article 4 thereof, which lays down exceptions in that regard, that the right of access is nevertheless subject to certain limits based on reasons of public or private interest (judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 61).
53 Thus, the Court of Justice has already acknowledged the existence of general presumptions as regards, inter alia, documents from the administrative file relating to a procedure for reviewing State aid (judgment of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‑139/07 P, ECR, EU:C:2010:376, paragraph 61), documents exchanged between the Commission and the notifying parties or third parties during merger control proceedings (judgments of 28 June 2012 in Commission v Éditions Odile Jacob, C‑404/10 P, ECR, EU:C:2012:393, paragraph 123, and in Commission v Agrofert Holding, C‑477/10 P, ECR, EU:C:2012:394, paragraph 64) and documents in a file relating to a proceeding under Article 101 TFEU (judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 81).
54 As far as concerns merger control and penalties for concerted practices, the Court of Justice has held that the Commission was entitled to presume that disclosure of the documents at issue in the relevant cases, in principle, undermined the protection of the commercial interests of the companies involved in those proceedings as well as the protection of the purpose of investigations relating to such proceedings within the meaning of the first and third indents of Article 4(2) of Regulation No 1049/2001 (judgments in Commission v Éditions Odile Jacob, cited in paragraph 53 above, EU:C:2012:393, paragraph 123, and Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 80). The Court has also pointed out that the exceptions relating to the protection of commercial interests and the protection of the purpose of inspections, investigations and audits of the institutions of the European Union are closely connected (judgments in Commission v Éditions Odile Jacob, cited in paragraph 53 above, EU:C:2012:393, paragraph 115, and Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 79).
55 When finding that a presumption exists, the Court has relied on, in particular, the fact that the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 cannot, where the documents covered by the application for disclosure fall within a particular area of EU law, be interpreted without taking account of the specific rules governing access to those documents (judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 83).
56 Specific rules govern access to documents sent to the Commission by a national competition authority under Article 11(4) of Regulation No 1/2003.
57 Thus, recital 15 in the preamble to Regulation No 1/2003 states that ‘[t]he Commission and the competition authorities of the Member States should form together a network of public authorities applying the [EU] competition rules in close cooperation [and, f]or that purpose it is necessary to set up arrangements for information and consultation’. According to recital 32 of Regulation No 1/2003, ‘[t]he confidentiality of information exchanged in the network should … be safeguarded’.
58 Furthermore, Article 27(2) of Regulation No 1/2003 provides that even the parties subject to proceedings conducted by the Commission under Article 101 TFEU do not have access to documents drawn up pursuant to Article 11 of that regulation. A fortiori, Regulation No 1/2003 therefore prevents all persons from accessing such documents.
59 Lastly, under Article 28(2) of Regulation No 1/2003, the officials and servants of the Commission and the competition authorities of the Member States are prohibited from disclosing information acquired or exchanged by them of the kind covered by the obligation of professional secrecy.
60 Thus, Regulation No 1/2003 is designed, inter alia, to safeguard the confidentiality of information and the observance of the obligation of professional secrecy in proceedings under Article 101 TFEU, particularly in the context of the information arrangement established within the network of public authorities ensuring compliance with the EU competition rules.
61 That objective is justified, in particular, by the fact that such proceedings involve potentially sensitive commercial information, as pointed out in recital 32 of Regulation No 1/2003, according to which ‘[w]hile ensuring the rights of defence of the undertakings concerned, in particular, the right of access to the file, it is essential that business secrets be protected’.
62 As far as concerns access to documents, Regulation No 1/2003 therefore pursues a different objective to that pursued by Regulation No 1049/2001, which is designed to facilitate as far as possible the exercise of the right of access to documents and to promote good administrative practice by guaranteeing the greatest possible transparency in the decision-making process of public authorities and the information on which they base their decisions (see, to that effect, judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 83).
63 In addition, it should be noted that, according to the case-law of the Court, the administrative activity of the Commission does not require such extensive access to documents as that required by the legislative activity of an EU institution (judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 91). It is in the context of its administrative activity that the Commission participates in the network of public authorities ensuring compliance with the EU competition rules.
64 It follows from all of the foregoing considerations that there is a general presumption according to which the disclosure of documents sent under Article 11(4) of Regulation No 1/2003 in principle undermines both the protection of the commercial interests of the undertakings to which the information at issue relates, and the closely-linked protection (see paragraph 54 above) of the purposes of the investigations of the national competition authority.
65 It is in the light of this presumption that the General Court must assess the substance of the objections submitted by the applicant concerning the conditions for applying the first and third indents of Article 4(2) of Regulation No 1049/2001.
Objections submitted by the applicant concerning the conditions for applying the first and third indents of Article 4(2) of Regulation No 1049/2001
66 As a preliminary point, it should be noted that the general presumption referred to above does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document by virtue of Article 4(2) of Regulation No 1049/2001 (judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraph 100).
67 In the first place, the applicant submits that the proceedings conducted by the CNC are definitively closed. In the second place, the applicant relies on considerations deriving from its individual situation which justify it being given access to the documents at issue.
68 These two arguments should be examined in turn.
– The fact that the proceedings conducted by the CNC are definitively closed
69 In order to address this argument, it is necessary to determine the period of application of the general presumption mentioned in paragraph 64 above for documents such as those at issue in the present case.
70 It should be recalled that, in the context of merger control by the Commission, the Court has held that the presumption applies irrespective of whether the application for access concerns a control procedure which is already closed or a pending procedure (judgment in Commission v Éditions Odile Jacob, cited in paragraph 53 above, EU:C:2012:393, paragraphs 124 and 125).
71 First, public access to sensitive information concerning the economic activities of the undertakings involved is likely to harm their commercial interests, regardless of whether a control procedure is pending. Second, the mere prospect of such access after a control procedure is closed runs the risk of adversely affecting the willingness of undertakings to cooperate when such a procedure is pending. Third, under Article 4(7) of Regulation No 1049/2001, the exceptions relating to commercial interests or sensitive documents may apply for a period of 30 years, or even beyond that period if necessary (judgment in Commission v Éditions Odile Jacob, cited in paragraph 53 above, EU:C:2012:393, paragraphs 124 and 125).
72 The same reasoning was applied by the General Court in relation to cartel control by the Commission (judgments in Netherlands v Commission, cited in paragraph 43 above, EU:T:2013:480, paragraphs 43 and 44, and of 7 October 2014 in Schenker v Commission, T‑534/11, ECR, EU:T:2014:854, paragraphs 58 and 59).
73 On the same grounds as those set out in paragraph 71 above, this reasoning should also be applied to the documents at issue and, consequently, the applicant’s argument based on the fact that the proceedings in question conducted by the CNC are definitively closed must be rejected.
74 It is also necessary to dismiss the interpretation of paragraphs 98 and 99 of the judgment in Commission v EnBW, cited in paragraph 48 above (EU:C:2014:112), which the applicants proposed at the hearing.
75 According to that interpretation, the Court of Justice held that, when the final decision bringing an end to a cartel investigation is definitive, the investigation activities may be regarded as completed and, therefore, the exception relating to the protection of the purpose of investigations and the closely connected exception relating to the protection of commercial interests no longer apply.
76 It should be recalled that, in the above case, which challenged the refusal to grant access to documents in a proceeding leading to the adoption by the Commission of a penalty concerning cartels, the General Court had found at first instance that the disclosure of the documents requested was not likely to undermine the protection of the purpose of investigations relating to that proceeding. The Court of Justice — relying on the fact that the General Court had also held that, when the contested decision was adopted, legal proceedings were pending against the penalty imposed by the Commission — limited itself to reviewing the General Court’s finding, within the context of the appeal before it.
77 For the sake of completeness, even if the applicant’s proposed interpretation of paragraphs 98 and 99 of the judgment in Commission v EnBW, cited in paragraph 48 above (EU:C:2014:112), could be upheld, the fact remains that, so far as the documents at issue are concerned, the general presumption mentioned in paragraph 64 above should continue to apply after the definitive closure of the proceedings conducted by the CNC.
78 In the first place, the proper working of the information exchange arrangement, established within the network of public authorities ensuring compliance with the EU competition rules, requires that the information thus exchanged remain confidential (see paragraphs 57 to 60 above). If it was possible for everyone to access, on the basis of Regulation No 1049/2001, documents sent by the competition authorities of the Member States to the Commission, the guarantee of increased protection applying to the information sent, on which this arrangement is founded, would be undermined. It should be added that Regulation No 1/2003 does not provide that this protection must end after the definitive closure of the investigations that allowed such information to be gathered.
79 In the second place, the limitation of the period during which a general presumption applies cannot, in this specific context, be justified by the right to compensation to which those harmed by an infringement of Article 101 TFEU are entitled.
80 It is true that this right may constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001, particularly because it strengthens the working of the EU competition rules, thereby making a significant contribution to the maintenance of effective competition in the European Union (see, to that effect, judgments of 14 June 2011 in Pfleiderer, C‑360/09, ECR, EU:C:2011:389, paragraph 29; of 6 June 2013 in Donau Chemie and Others, C‑536/11, ECR, EU:C:2013:366, paragraph 23; and in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraphs 104 and 108).
81 In this connection, it should be pointed out that the documents in a file relating to a proceeding under Article 101 TFEU conducted by the Commission are likely to contain information enabling individuals to secure compensation for damage caused to them by conduct liable to restrict or distort competition.
82 However, the documents at issue in this case, namely the decision contemplated by the national competition authority and the summary of the case, the submission of which is provided for in Article 11(4) of Regulation No 1/2003, do not concern an investigation by the Commission, but an investigation carried out by a national competition authority. It is the national competition authority’s investigation file, rather than the documents at issue, that could, where appropriate, provide the necessary evidence on which to base a claim for compensation, even if the documents refer to such evidence. Thus, individuals who consider that they have been harmed by an infringement of Article 101 TFEU may apply to the competent national authority for disclosure of the documents relating to the proceeding and any national courts seised of the matter may weigh up — on a case-by-case basis, according to national law — the interests justifying the disclosure of the information in question and the protection of that information (see, to that effect, judgment in Donau Chemie and Others, cited in paragraph 80 above, EU:C:2013:366, paragraph 34).
83 Consequently, the right of all individuals to be compensated for the harm caused to them by conduct liable to restrict or distort competition does not mean that the period of application of the presumption relating to the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001 must be limited to the period prior to the date on which the investigation can be said to be definitively closed, when the documents at issue are the decision contemplated by the national competition authority and the summary of the case.
84 It follows from the foregoing that the applicant’s argument based on the definitive nature of the closure of the investigation must, on any view, be rejected.
– Arguments based on the applicant’s individual situation
85 In the first place, the applicant relies on the fact that some of the requested documents were sent to it by the Spanish national authorities. It also states that it is the only legal person affected by the proceedings in question.
86 It is to be noted that the purpose of Regulation No 1049/2001 is to give the general public a right of access to documents of the institutions and not to lay down rules designed to protect the particular interest which a specific individual may have in gaining access to one of them (judgment of 1 February 2007 in Sison v Council, C‑266/05 P, ECR, EU:C:2007:75, paragraph 43).
87 That is clear from, in particular, Articles 2(1), 6(1) and 12(1) of Regulation No 1049/2001, as well as its title and recitals 4 and 11 in its preamble. The first of those provisions guarantees, without distinction, the right of access to any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, the second specifying in that regard that an applicant is not obliged to state reasons for the application. Article 12(1) provides that the institutions are as far as possible to make documents ‘directly’ accessible to the public in electronic form or through a register. The title of Regulation No 1049/2001 and recitals 4 and 11 in its preamble also emphasise that the purpose of the regulation is to make the institutions’ documents accessible to the ‘public’ (judgment in Sison v Council, cited in paragraph 86 above, EU:C:2007:75, paragraph 44).
88 An analysis of the preparatory documents which led to the adoption of Regulation No 1049/2001 also reveals that consideration was given to the possibility of extending the subject-matter of that regulation by providing for account to be taken of certain specific interests of which persons could avail themselves in order to obtain access to a particular document. Thus, inter alia, the 31st amendment contained in the legislative proposal in the Report of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs of the European Parliament suggested the introduction of a new Article 4(2) in the Proposal for a Regulation of the European Parliament and of the Council of 27 June 2000 regarding public access to European Parliament, Council and Commission documents (OJ 2000 C 177 E, p. 70), according to which, ‘[w]hen considering the public interest in the disclosure of the document, the institution shall also take account of the interest raised by a petitioner, complainant or other beneficiary having a right, interest or obligation in a matter’. Similarly, the 7th amendment proposed in the Opinion given by the Committee on Petitions of the European Parliament in the same report sought the insertion of a paragraph in Article 1 of the Commission’s Proposal to specify that ‘[a] petitioner, a complainant, and any other person, natural or legal, whose right, interest or obligation in a matter is concerned (a party) shall also have the right of access to a document which is not accessible to the public, but may influence the consideration of his/her case, as described in this Regulation and in implementing provisions adopted by the institutions’. In that regard, however, it must be stated that none of the suggestions thus formulated was incorporated in the provisions of Regulation No 1049/2001 (judgment in Sison v Council, cited in paragraph 86 above, EU:C:2007:75, paragraph 45).
89 In addition, if the rules on exceptions provided for in Article 4(2) of Regulation No 1049/2001 are based on the weighing-up of conflicting interests in a given situation, namely, on the one hand, the interests that would be threatened by disclosure of the documents concerned and, on the other, the interests that would be favoured by such disclosure, as regards the latter set of interests, only an overriding public interest can be taken into account.
90 It follows from the foregoing that the particular interest of an applicant in obtaining access to documents and his individual situation cannot, unless they relate to an overriding public interest, be taken into account by the institution called upon to rule on the question whether the disclosure to the public of those documents would undermine the interests protected by Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment of 21 October 2010 in Umbach v Commission, T‑474/08, EU:T:2010:443, paragraph 70).
91 The General Court has accepted that an institution cannot, on the basis of Article 4(1)(b) of Regulation No 1049/2001, refuse access to documents on the ground that their disclosure would undermine the privacy and integrity of an individual, when the documents in question contain personal data exclusively concerning the applicant for access. The General Court has also accepted that, in those circumstances, the right of the latter to obtain disclosure on the basis of the right of access to documents of the institutions cannot have the consequence of opening a right of access of the public in general to those documents (judgment of 22 May 2012 in Internationaler Hilfsfonds v Commission, T‑300/10, ECR, EU:T:2012:247, paragraphs 107 to 109).
92 However, in the present case, the Commission did not rely on Article 4(1)(b) of Regulation No 1049/2001 in order to adopt the contested decision.
93 Consequently, in the contested decision the Commission was fully entitled to consider that the factors relied on by the applicant, which were based on its individual situation and did not relate to any overriding public interest, should not be taken into account when determining whether disclosure of the documents at issue would undermine the interests protected by Article 4(2) of Regulation No 1049/2001.
94 In any event, as regards the argument that the applicant is the only legal person affected by the proceedings in question, the applicant concedes that one of the two national proceedings opened by the CNC concerns another legal person. Furthermore, it is not inconceivable that the documents at issue might contain information relating to persons not covered by the proceedings. The Commission stated that these documents contain confidential information on other natural and legal persons, which was not disputed. The applicant’s claim cannot therefore be regarded as substantiated.
95 In the second place, the applicant points out that it is a non-profit entity and does not pursue any business activities. Consequently, since it is the only person affected by the national proceedings in question, no commercial interests could be undermined within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001.
96 This argument must be rejected. It does not prove the existence of an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001.
97 In any case, as indicated above, it has not been proven that the applicant is the only person affected by the national proceedings. Moreover, the Commission is fully entitled to reply that the applicant is an association of undertakings and that it was penalised under Article 101 TFEU, namely for conduct considered to be capable of affecting trade between Member States.
98 It follows from the foregoing that the second plea in law put forward by the applicant must be dismissed in so far as it concerns the grounds of the contested decision relating to the first and third indents of Article 4(2) of Regulation No 1049/2001.
99 These grounds are, in themselves, sufficient to justify in law the Commission’s decision. In those circumstances, any flaws which might vitiate the other ground of the decision (relating to the second subparagraph of Article 4(3) of Regulation No 1049/2001) have, in any event, no bearing on the lawfulness of the decision. The submission on the basis of which the applicant specifically contests that ground is therefore of no avail and must accordingly be rejected (judgment of 6 November 1990 in Italy v Commission, C‑86/89, ECR, EU:C:1990:373, paragraph 20).
100 It should also be noted that the application submitted by the applicant in the present case sought access to all of the correspondence exchanged under Article 11(4) of Regulation No 1/2003 between the Commission and the CNC with regard to two national proceedings initiated by the CNC pursuant to Article 101 TFEU (see paragraph 10 above). The application was therefore a global application. In that type of situation, the recognition that there is a general presumption that the disclosure of documents of a certain nature will, in principle, undermine the protection of one of the interests listed in Article 4 of Regulation No 1049/2001 enables the institution concerned to deal with a global application and to reply thereto accordingly, without conducting a specific and individual examination of each document to which access is sought (see judgments in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraphs 67 and 68 and the case-law cited, and of 19 November 2014 in Ntouvas v ECDC, T‑223/12, EU:T:2014:975, paragraph 34 and the case-law cited).
101 In consequence, the second plea in law must be rejected in its entirety.
102 Accordingly, since the general presumption mentioned in paragraph 64 above applied in the present case and the applicant failed to prove that there was an overriding public interest in disclosure of the documents at issue, the first plea in law alleging that there was no specific and individual examination of the application for access to those documents must be rejected.
103 It follows from all of the foregoing that the claim for annulment must be dismissed in its entirety.
2. The claim for the adoption of measures of organisation of procedure
104 The applicant claims that the Court should order the Commission to produce the documents to which it refused access, so that the Court can review them and determine whether the arguments put forward in the application are well founded.
105 It should be borne in mind that in its review of the decision to refuse access to documents, the General Court must refer to the reasoning on which the decision is based. Thus, if that reasoning consists in an assessment of the effects which disclosure of the document would have on certain rights and interests, review will be possible in so far as the General Court is able to form its own view concerning the substantive content of the document (Opinion of Advocate General Cruz Villalón in IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, ECR, EU:C:2012:118, paragraph 73). In such cases, the General Court must consult the document in camera (judgment of 21 June 2012 in IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, ECR, EU:C:2012:376, paragraph 73).
106 However, under a general presumption, the institution may reply to a global application without conducting a specific and individual examination of each document to which access is sought (judgment in Commission v EnBW, cited in paragraph 48 above, EU:C:2014:112, paragraphs 67, 68, 127 and 128).
107 Such a presumption is applicable in the present case. Furthermore, the applicant failed to show that any of the documents in respect of which disclosure was sought fell outside the scope of that presumption or that there was an overriding public interest in disclosure.
108 Therefore, it is not for the General Court to conduct a specific assessment of each of the requested documents in order to satisfy itself that access to these documents would undermine the interests invoked.
109 It follows from the foregoing that the request for a measure of organisation of procedure must be refused.
110 Consequently, the action must be dismissed in its entirety.
Costs
111 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it is ordered to bear its own costs and pay those incurred by the Commission.
112 Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene in proceedings are to bear their own costs. Those provisions must be applied to the Federal Republic of Germany.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Unión de Almacenistas de Hierros de España to bear its own costs and pay those incurred by the European Commission;
3. Orders the Federal Republic of Germany to pay its own costs.
Martins Ribeiro | Gervasoni | Madise |
Delivered in open court in Luxembourg on 12 May 2015.
[Signatures]