In response to the Declaration on the right of access to information incorporated into the Treaty on European Union by the Member States in 1992, the Commission and the Council have adopted a Code of Conduct which lays down the general principle that "the public will have the widest possible access to documents held by the Commission and the Council". The Code of Conduct describes inter alia the procedure to be followed where it is proposed to reject a request for access to documents and lists the factors which an institution may rely on as grounds for rejecting a request. One of those factors is the protection of the public interest, which includes "court proceedings".

The request for access in this case concerned replies sent by the Commission's Directorate-General for Competition to various national courts under a Commission notice adopted in 1993, which allowed national courts to consult the Commission in respect of the application of Articles 85 and 86 of the Treaty, concerning competition. The applicant, as a lawyer and member of a firm which deals with cases raising questions of competition at Community level, requested copies of some of those letters. The Director-General refused that request on the ground that disclosure would be detrimental to the protection of the public interest (court proceedings).

The Court therefore had to rule whether the Commission was entitled to rely on the exception based on the protection of the public interest to refuse access to those documents sent to a national court.

The Court considers that the right of every person to a fair hearing by an independent tribunal laid down by Article 6 of the European Convention on Human Rights means, inter alia, that both national and Community courts must be free to apply their own rules of procedure governing the conduct of the proceedings in general and the confidentiality of the documents on the file in particular.

The exception to the general principle of access to Commission documents based on the protection of the public interest when the documents are connected with court proceedings is designed to ensure in general the independence of the judiciary and is not restricted to protecting the interests of the parties in the context of specific court proceedings.

The Court therefore holds that the decision as to whether to disclose documents drafted for the sole purposes of a particular court case is a matter for the appropriate national court alone on the basis of its own rules of procedure and, in particular, the principles of confidentiality which apply to documents on the court's file. That is the case for as long as the national proceedings are pending.

The Court further considers that the reasons given by the Commission are adequate and therefore dismisses the action in its entirety.

For media use only - unofficial document which does not bind the Court of First Instance

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