Case T-437/08

CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide)

v

European Commission

(Access to documents – Regulation (EC) No 1049/2001 – Statement of contents of the administrative file relating to a cartel proceeding – Refusal of access – Exception concerning the protection of the commercial interests of a third party – Exception relating to protection of the purpose of inspections, investigations and audits)

Summary of the Judgment

1.      European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the commercial interests of a given person – Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent)

2.      European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the purpose of inspections, investigations and audits – Temporal application

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

3.      European Union – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the purpose of inspections, investigations and audits – Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

1.      It is not possible to regard all information concerning a company and its business relations as requiring the protection which must be guaranteed to commercial interests under the first indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents if application of the general principle of giving the public the widest possible access to documents held by the institutions is not to be frustrated.

In the context of a Commission decision relating to a cartel, the statement of contents, which merely contains references to the documents in the Commission’s case-file, cannot be regarded as itself forming part of the commercial interests of the companies mentioned therein by name as authors of some of those documents. It is only if one of the columns in the statement of contents were to contain, in regard to one or more of those documents, information concerning the business relations of the companies concerned, the prices of their products, their cost structure, market share or similar information that disclosure of the statement of contents could be regarded as prejudicing the protection of the commercial interests of those companies.

Moreover, the statement of contents is a mere inventory of documents which, in itself, has only a very relative probative value in the context of an action for damages brought against the companies in question. Although it is true that that inventory could allow the party concerned to identify the documents which could be useful to it for the purposes of such an action, it is none the less also true that the decision to order production of those documents, or not, is for the court having jurisdiction over that action. In addition, even if the fact that actions for damages were brought against a company could undoubtedly cause high costs to be incurred, even if only in terms of legal costs, and even if the actions were subsequently dismissed as unfounded, the fact remains that the interest of a company which took part in a cartel in avoiding such actions cannot be regarded as a commercial interest and, in any event, does not constitute an interest deserving of protection, having regard, in particular, to the fact that any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition.

(see paras 44-45, 48-49)

2.      It is clear from the wording of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that the aim of that exception is not to protect the investigations as such, but rather their purpose, which, in the case of competition proceedings, is to determine whether an infringement of Article 81 EC or Article 82 EC has taken place and to penalise the companies responsible if that be the case. Consequently, documents relating to the various acts of investigation may remain covered by the exception in question so long as that goal has not been attained, even if the particular investigation or inspection which gave rise to the document to which access is sought has been completed.

However, the investigation in a given case must be regarded as closed once the final decision is adopted, irrespective of whether that decision might subsequently be annulled by the courts, because it is at that moment that the institution in question itself considers that the procedure has been completed.

To accept that the various documents relating to investigations are covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 until all possible legal procedures have been decided – even in the case where an action which may lead to a re-opening of the procedure before the Commission has been brought before the Court – would make access to those documents dependent on uncertain events, namely the outcome of that action and the conclusions which the Commission might draw from it. In any event they are uncertain and future events which depend on decisions of the addressees of the decision sanctioning a cartel and of the various authorities concerned.

Such an approach would be contrary to the objective of guaranteeing the widest possible public access to documents emanating from the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.

(see paras 59, 62, 64-65)

3.      The concept of the purpose of the investigation activities cannot be interpreted by the Commission as including all of the Commission’s policy in regard to the punishment and prevention of cartels, and thus be relied on, in a general way, independently of any specific procedure, to refuse disclosure of any document likely to undermine the Commission’s cartel policy and, in particular, its leniency programme, for example, if applicants for leniency had to fear that, as a result of the disclosure of documents which they submitted in the context of their application, they would be the prime target of actions for damages brought by companies damaged by the cartel, and might therefore refrain, in the future, from co-operating with the Commission.

Such an interpretation would amount to permitting the Commission to avoid the application of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, without any limit in time, to any document in a competition case merely by reference to a possible future adverse impact on its leniency programme, and is therefore incompatible with the principle that, by reason of the purpose of that regulation, set out in recital 4, namely, ‘to give the fullest possible effect to the right of public access to documents’, the exceptions laid down in Article 4 of that regulation must be interpreted and applied strictly.

In that regard, nothing in Regulation No 1049/2001 leads to the supposition that EU competition policy should enjoy, in the application of that regulation, treatment different from other EU policies. There is thus no reason to interpret the concept of the ‘purpose of the investigation activities’ differently in the context of competition policy than in other EU policies.

(see paras 68-72)