JUDGMENT OF THE GENERAL COURT (Third Chamber)
20 March 2014 (*)
(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to requests that certain undertakings’ inability to pay be taken into account in cartel proceedings – Refusal of access – Exception relating to the protection of commercial interests of a third party – Exception relating to the protection of the purpose of inspections, investigations and audits – Overriding public interest – Obligation to carry out a concrete and individual examination – Partial access)
In Case T‑181/10,
Reagens SpA, established in San Giorgio di Piano (Italy), represented initially by B. O’Connor, Solicitor, L. Toffoletti, E. De Giorgi and D. Gullo, lawyers, and subsequently by B. O’Connor, L. Toffoletti and E. De Giorgi,
applicant,
v
European Commission, represented initially by P. Costa de Oliveira and J. Bourke, and subsequently by P. Costa de Oliveira and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision Gestdem No 2009/5145 of 23 February 2010, refusing the applicant access to certain documents in the administrative file in Case COMP/38589 – Heat stabilisers, on the basis of 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),
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 15 January 2013,
gives the following
Judgment
Background to the dispute
1 By Decision No C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/38589 – Heat stabilisers) (‘the decision at issue’), the Commission of the European Communities found that a number of undertakings, including the applicant, Reagens SpA, had infringed Article 81 EC and Article 53 of the EEA by participating in two sets of anti-competitive agreements and concerted practices covering the territory of the EEA in the heat stabilisers sector.
2 In the decision at issue, the Commission imposed a fine on the applicant and also, inter alia, on the undertakings X and Y.
3 In setting the amount of the fines, the Commission applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).
4 During the procedure preceding the adoption of the decision at issue, the applicant, and also X and Y, requested that their inability to pay, within the meaning of Paragraph 35 of the 2006 Guidelines, be taken into account (recital 775 of the decision at issue).
5 Paragraph 35 of the 2006 Guidelines provides that ‘[i]n exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context’, but that ‘[i]t will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation’, since ‘[a] reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided in [the 2006 Guidelines] would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’.
6 It is apparent from the non-confidential version of the decision at issue that, like the applicant’s request, X’s request was rejected by the Commission, in contrast to the request submitted by Y, which was granted a reduction of the fine for inability to pay (recital 795 of the decision at issue).
7 On 11 November 2009 the Commission adopted the decision at issue.
8 By letter of 27 November 2009 (‘the initial request for access’), the applicant requested, pursuant to Article 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), further access to the non‑confidential version of the file in order to exercise fully its rights of defence with a view to bringing an action against the decision at issue and, in particular, sought access to X’s and Y’s requests that their inability to pay, within the meaning of Paragraph 35 of the 2006 Guidelines, be taken into account.
9 In its initial request for access, the applicant stated that, should the Commission refuse that request, it should treat it as a formal request, submitted on the basis of Article 6 of Regulation No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), for access to the documents relating to X’s and Y’s requests that their inability to pay, within the meaning of Paragraph 35 of the 2006 Guidelines, be taken into account, and to the Commission’s replies.
10 By e-mail of 7 December 2009 the Commission asked the applicant to clarify its request for further access to the non-confidential version of the file and its request, pursuant to Regulation No 1049/2001, for access to the documents relating to X’s and Y’s requests that their inability to pay, within the meaning of Paragraph 35 of the 2006 Guidelines, be taken into account, and to the Commission’s replies.
11 By e-mail of 8 December 2009 the applicant informed the Commission that its request for access to the non-confidential version of the file concerned the arguments on which X and Y had relied in their requests that their inability to pay, within the meaning of Paragraph 35 of the 2006 Guidelines, be taken into account, and also to the Commission’s replies, and that its parallel and autonomous request based on Regulation No 1049/2001 concerned ‘all … the correspondence between the Commission and [X and Y] in relation to the applications by those two companies on inability to pay … whether or not [that correspondence] is in the non‑confidential file of the case [that gave rise to the decision at issue]’.
12 By letter of 9 December 2009 the Commission rejected the initial request for access in so far as it concerned the non-confidential version of the file and was based on Regulation No 1/2003.
13 By letter of 21 December 2009 the Commission rejected the initial request for access in so far as it was based on Regulation No 1049/2001, relying on the exceptions provided for in the first and third indents of Article 4(2) of that regulation and taking the view that partial access was not possible.
14 On 5 January 2010 the applicant submitted to the Commission a confirmatory request for access, within the meaning of Article 7(2) of Regulation No 1049/2001, to the ‘non-confidential versions of applications by … [X and Y], under Paragraph 35 of the [2006] Guidelines as well as to the non‑confidential correspondence between the Commission and [those two] companies on the application’ (‘the confirmatory request for access’).
15 By application lodged at the Court Registry on 28 January 2010, the applicant brought an action against the decision at issue in Case T‑30/10.
16 In its submissions in that case, the applicant asked the Court, in particular, to order a measure of inquiry as to the application by the Commission of Paragraph 35 of the 2006 Guidelines to X and Y.
17 By separate document lodged at the Court Registry on the same date, the applicant also applied for suspension of the operation of the decision at issue.
18 By order of the President of the Court of 12 May 2010 in Case T‑30/10 R Reagens v Commission (not published in the ECR), that application was dismissed.
19 By decision of 23 February 2010 (‘the contested decision’), the Commission rejected the confirmatory request for access.
20 In point 3 of the contested decision, headed ‘Scope of [the] confirmatory application’, the Commission stated that the application covered 34 documents, which could be classified in three categories (together, ‘the requested documents’), namely:
– the non-confidential versions of the requests submitted on the basis of Paragraph 35 of the 2006 Guidelines (‘the undertakings’ requests’);
– the requests for information sent by the Commission in response to the undertakings’ requests (‘the Commission’s requests’);
– the non-confidential versions of the replies of the undertakings concerned to the requests for information (‘the undertakings’ replies’).
21 The Commission also stated in point 3 of the contested decision that the undertakings’ requests ‘impl[y] per se a statement of bad financial health of the undertaking concerned, [which] makes [such] request[s] … a very sensitive matter for the undertaking’, since ‘public knowledge of [such a request’s] mere existence is capable of having very adverse consequences for the financial and market situation of that undertaking’. Consequently, according to the Commission, ‘such information is of the kind covered by the obligation of professional secrecy provided for in Article 339 TFEU and interpreted recently … in [the] Bank Austria case’ [Case T‑198/03 Bank Austria Creditanstalt v Commission [2006] ECR II‑1429, paragraph 71]. Therefore, the Commission considered that it was ‘not possible under Regulation No 1049/2001 to give a more precise description or a detailed list of the documents concerned’.
22 In the same point the Commission came to the conclusion that the confirmatory request for access should be rejected, for the reasons set out in paragraphs 23 to 26 below.
23 In point 4 of the contested decision, headed ‘Protection of commercial interests’, the Commission found that all the requested documents were covered by the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001, namely the protection of the commercial interests of third parties.
24 In point 5 of the contested decision, headed ‘Protection of the purpose of investigations’, the Commission found that the Commission’s requests were covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, namely the protection of the purpose of investigations.
25 In point 6 of the contested decision, headed ‘Partial access to the requested documents’, the Commission, pursuant to Article 4(6) of Regulation No 1049/2001, excluded the possibility of partial access to the requested documents, by reference, in particular, to the principles of sound administration and proportionality.
26 In point 7 of the contested decision, headed ‘Overriding public interest in disclosure’, the Commission, pursuant to Article 4(2) of Regulation No 1049/2001, found that there was no overriding public interest in the present case that would justify granting access to the requested documents.
Procedure and forms of order sought by the parties
27 By application lodged at the Court Registry on 23 April 2010, the applicant brought the present action.
28 Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
29 By way of measures of organisation of procedure under Article 64 of the Rules of Procedure, the Court, inter alia, asked the applicant to state whether it sought, in the alternative, the annulment of the contested decision in so far as the Commission had also denied it partial access to the requested documents.
30 The applicant replied within the prescribed period and confirmed that it sought, in the alternative, the annulment of the contested decision in so far as the Commission had also denied it partial access to the requested documents.
31 In addition, the Commission was asked to submit to the Court, before the hearing, some of the requested documents referred to in its written pleadings and falling within the category of Commission requests mentioned in paragraph 20 above.
32 The Commission produced, within the prescribed period, documents falling within that category addressed to X and to Y.
33 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 15 January 2013.
34 The applicant claims that the Court should:
– principally, annul the contested decision;
– order the Commission to disclose the non-confidential version of the requested documents;
– in the alternative, annul the contested decision in so far as the Commission also refused to grant it partial access to the requested documents;
– in any event, order the Commission to pay the costs.
35 The Commission contends that the Court should:
– reject as inadmissible the form of order sought by the applicant inasmuch as it asks the Court to issue directions to the Commission;
– dismiss as unfounded the action for the remainder;
– order the applicant to pay the costs.
Law
36 By its action, the applicant asks the Court, principally, to annul the contested decision and to order the Commission to disclose the non‑confidential version of the requested documents and, in the alternative, to annul the contested decision in so far as the Commission also refused to grant it partial access to the requested documents.
37 In its reply, the applicant also submits that the Commission’s defence is inadmissible, since it did not respond to the application in accordance with formal requirements and within the prescribed period.
Admissibility of the Commission’s defence
38 According to the applicant, the statement of defence which it received from the Commission is stated to be a ‘certified copy of the original’. If that is so, then, in the applicant’s submission, the Commission has not lodged a defence in the proper format within the prescribed period, since that document is not signed, in breach of Article 43 of the Rules of Procedure.
39 If, on the contrary, the Commission should maintain that another pleading was properly signed at the end, it is also in breach of Article 43, since the document served on the applicant is not a copy of that signed document, the Commission did not provide the Court with an original and six copies of the document as required and the defence was not lodged within the prescribed period.
40 The applicant submits that its claims must therefore be upheld.
41 If the Court should consider that the Commission’s defence was validly lodged and that there has been no breach of Article 43 of the Rules of Procedure, the applicant claims that the defence must be deemed not to have been served on it.
42 The Commission asserts that it lodged its defence in the proper format and within the prescribed period. Accordingly, it contends that the applicant’s arguments in that regard are wholly unfounded and should be rejected.
43 In that regard, it must be pointed out that the original of the Commission’s defence, lodged at the Court Registry within the prescribed period, was duly signed.
44 Moreover, it does not follow from any provision of the Rules of Procedure, or of the Practice Directions to Parties, that the certified copies of the original, lodged at the Court Registry with the signed original of the pleading and notified to the other parties, must also be signed.
45 Accordingly, the plea of inadmissibility raised by the applicant concerning the Commission’s defence must be rejected.
The claim that the Commission should be ordered to disclose the non‑confidential version of the requested documents
46 By the application, the applicant claims that the Court should order the Commission to disclose the non‑confidential version of the requested documents.
47 The Commission contends that this head of claim should be rejected.
48 In that regard, it must be concluded that to uphold the applicant’s claim asking that the Commission be ordered by the Court to disclose the non-confidential version of the requested documents would be tantamount to the Court issuing directions to the Commission.
49 The Court is not entitled, when exercising judicial review of legality on the basis of Article 263 TFEU, as in the present case, to issue directions (see, to that effect, Case C‑353/01 P Mattila v Council and Commission [2004] ECR I‑1073, paragraphs 15 and 16).
50 Accordingly, the applicant’s action must be dismissed in so far as it claims that the Court should order the Commission to disclose the non‑confidential version of the requested documents.
The claim for annulment of the contested decision
51 In its application, in so far as it seeks annulment of the contested decision, the applicant maintains, principally, that the contested decision is unlawful in that the Commission refused to grant the applicant access to all the requested documents and, in the alternative, that the contested decision is unlawful in that the Commission also refused to grant the applicant partial access to those documents.
52 In support of its action, and in essence, the applicant, first, alleges breach of the Commission’s obligation to carry out a concrete, individual examination of the requested documents. Second, the applicant claims that the contested decision infringes the first indent of Article 4(2) of Regulation No 1049/2001, in that the Commission could not lawfully refuse access to all the requested documents on the basis of the protection of commercial interests, within the meaning of that provision. Third, it alleges infringement, in the contested decision, of the third indent of Article 4(2) of Regulation No 1049/2001, in that the Commission could not lawfully refuse access to the Commission’s requests on the basis of the protection of the purpose of investigations, within the meaning of that provision. Fourth, the applicant claims that, in any event, the contested decision is unlawful since there is an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, requiring the disclosure of the requested documents. Fifth, and in the alternative, the contested decision is unlawful, according to the applicant, in that the Commission refused partial access to the requested documents, in breach of Article 4(6) of Regulation No 1049/2001 and the principle of sound administration.
Preliminary considerations regarding the requested documents
53 In order to examine whether the applicant’s pleas are well founded, it is necessary – on the basis of the classification of the requested documents carried out in the contested decision, referred to in paragraph 20 above, and the clarifications provided by the Commission in its written pleadings and in its replies to the questions put to it by the Court at the hearing – to distinguish the requested documents as follows.
54 First, under Paragraph 35 of the 2006 Guidelines, the undertaking concerned submits to the Commission a request for application of that paragraph, that request falling, in the contested decision, within the category of undertakings’ requests.
55 Second, the Commission sends the undertaking concerned a first ‘standard’ questionnaire, according to the terms used by the Commission in its written pleadings before the Court (‘the Commission’s first questionnaire’ or ‘the Commission’s standard questionnaire’). In the contested decision, the Commission seems to have placed the first questionnaire in the category of Commission requests, which it confirmed in its written pleadings before the Court.
56 Third, the undertaking concerned sends the Commission its reply to the first questionnaire (‘the undertaking’s reply to the first questionnaire’). In the contested decision, the Commission seems to have placed the reply to the first questionnaire in the category of undertakings’ replies, which it confirmed in its written pleadings before the Court.
57 Fourth, on the basis of the first questionnaire, the Commission sends the undertaking concerned a second ‘targeted’ questionnaire, according to the Commission’s written pleadings before the Court (‘the Commission’s second questionnaire’ or ‘the Commission’s targeted questionnaire’). In the contested decision, the Commission seems to have placed the second questionnaire in the category of Commission requests, which it confirmed in its written pleadings before the Court.
58 Fifth, the undertaking concerned sends the Commission its reply to the second questionnaire (‘the undertaking’s reply to the second questionnaire’) In the contested decision, the Commission seems to have placed the reply to the second questionnaire in the category of undertakings’ replies, which it confirmed in its written pleadings before the Court.
59 Thus, the requested documents can be distinguished as follows:
– the undertakings’ requests;
– the Commission’s first questionnaire;
– the undertaking’s reply to the first questionnaire;
– the Commission’s second questionnaire;
– the undertaking’s reply to the second questionnaire.
The plea alleging breach of the Commission’s obligation to carry out a concrete, individual examination of the requested documents
60 In its plea alleging breach of the Commission’s obligation to carry out a concrete, individual examination of the requested documents, the applicant notes that, according to settled case-law, Article 4 of Regulation No 1049/2001 constitutes an exception to the principle of the widest possible public access to documents and must therefore be interpreted and applied restrictively (Joined Cases T‑391/03 and T‑70/04 Franchet and Byk v Commission [2006] ECR II‑2023, paragraph 84, and Case T‑36/04 API v Commission [2007] ECR II‑3201, paragraph 53).
61 Moreover, the applicant observes that the Court has held that where an institution receives a request for access under Regulation No 1049/2001, it is required, in principle, to carry out a concrete, individual assessment of the content of the documents referred to in the request (Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, ‘VKI’, paragraph 74).
62 In the applicant’s view, the Commission acknowledged that it did not carry out a concrete, individual examination of the requested documents by stating, in the contested decision, that it was unable to provide a more precise description or list of the requested documents.
63 The Commission contends that it did carry out such an examination and that, in any event, it was not required to do so, since it was entitled to presume that the requested documents were non-accessible in view of their nature, a contention that the applicant contests.
64 In that respect, as a preliminary, it should be recalled that the obligation of an institution to undertake a concrete, individual assessment of the content of the documents covered by all applications based on Regulation No 1049/2001 is an approach to be adopted as a matter of principle, which applies whatever may be the field to which the documents requested relate, although that approach, to be adopted in principle, does not mean that such an examination is required in all circumstances (VKI, paragraphs 74 and 75).
65 Accordingly, consideration of the complaint alleging breach of that obligation should precede consideration of the pleas alleging infringement of the provisions of Article 4 of Regulation No 1049/2001. It follows that the Court must in any event review, in considering the pleas alleging infringement of those provisions, whether the Commission has either undertaken a concrete, individual examination of each of the documents requested or shown that the documents to which access was refused were manifestly covered in their entirety by an exception.
66 The assessment of the complaint alleging failure to carry out a concrete, individual examination of the requested documents concerns a horizontal issue which must be examined before assessing whether the Commission correctly applied the various exceptions relied on in the contested decision to justify the refusal to disclose the requested documents.
67 The Court must therefore examine whether, in the present case, the Commission, as it claims, carried out a concrete, individual examination of the requested documents.
68 In the present case, as noted in paragraph 20 above, the Commission first of all stated, in the contested decision, that the confirmatory application for access covered 34 documents.
69 In the contested decision, the Commission subsequently classified the requested documents in three categories, namely, the undertakings’ requests, the Commission’s requests and the undertakings’ replies, as noted in paragraph 20 above.
70 Last, the Commission identified, in a particular category, the specific documents whose content was, in the Commission’s view, protected by a further exception, in addition to the exception relied on in respect of all the documents.
71 The Commission thus found that, while all the requested documents were covered by the exception provided for in the first indent of Article 4(2) of Regulation 1049/2001, the Commission’s requests were also covered by the third indent of that provision.
72 In addition, in the contested decision, in its examination of the issue of partial access, the Commission also found that, ‘[a]fter careful examination of the documents concerned’, ‘only fragmented parts, the reading of which would be meaningless, would not be covered by any exception’ (point 6, second sentence, of the contested decision).
73 Accordingly, it cannot be claimed that the Commission did not carry out a concrete, individual examination of the requested documents.
74 Only a concrete, individual examination of the requested documents would allow such precision on the Commission’s part as regards the number of documents, their categorisation and their coverage by one or two exceptions.
75 That assessment cannot be called into question by the applicant’s line of argument that, by stating in the contested decision that it was unable to provide a more precise description or list of the requested documents, the Commission acknowledged that it did not carry out a concrete, individual examination of the requested documents.
76 Such an inference is clearly unreasonable, since in the present case the Commission was entirely capable of carrying out an individual, concrete examination of the requested documents, and therefore meeting its obligation, without providing a more precise description or list of the requested documents.
77 Accordingly, the applicant’s plea alleging breach of the Commission’s obligation to carry out a concrete, individual examination of the requested documents must be rejected, and it is unnecessary to rule on whether the Commission could, in view of the nature of the requested documents, dispense with such an examination on the basis of a general presumption of non-accessibility.
The plea alleging infringement of the first indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of commercial interests
78 In support of the application for annulment of the contested decision, the applicant claims that the Commission infringed the first indent of Article 4(2) of Regulation No 1049/2001, pursuant to which the institutions are to refuse access to a document where disclosure would undermine the protection of ‘commercial interests of a natural or legal person’, in finding that all the requested documents came within the scope of that provision.
79 In order to justify that exception in the contested decision, the Commission first stated that the mere fact that an undertaking has made an application under Paragraph 35 of the 2006 Guidelines cannot be disclosed pursuant to Regulation No 1049/2001, since such disclosure would seriously undermine the protection of the commercial interests of the undertaking concerned, as its creditors might withdraw from the undertaking. Thus, if the identity of an undertaking seeking the application of Paragraph 35 of the 2006 Guidelines were to be disclosed to the public, undertakings would be faced with an impossible choice: to either invoke Paragraph 35 and risk creditors withdrawing, or refrain from invoking Paragraph 35 and risk the aggravation of their financial difficulties (point 4, third subparagraph, of the contested decision).
80 The Commission subsequently found in the contested decision that, among the requested documents, the undertakings’ requests and the undertakings’ replies contained detailed and specific sensitive information about the financial situation of the undertakings at issue (point 4, fourth subparagraph, of the contested decision).
81 Last, in the contested decision, similar findings were made in relation to the Commission’s requests and the undertakings’ replies. As regards the Commission’s requests, it is clear from the contested decision that, after sending its first questionnaire, the Commission subsequently sent the undertakings more targeted questions which were, by necessity, specific to each undertaking, with the result that the related documents are covered by commercial confidentiality since they reflect the individual financial situation of each undertaking concerned. Accordingly, as indicated in the decision, both the Commission’s first questionnaire, in so far as it identifies the undertaking concerned and the Commission’s second questionnaire, which is addressed, in a detailed manner, to each undertaking, and the replies of the undertakings to those various requests fall within the scope of the first indent of Article 4(2) of Regulation 1049/2001 (point 4, fifth subparagraph, of the contested decision).
82 However, according to the applicant, the undertakings’ requests are necessarily abstract, since the requesting undertaking does not know, at that stage of the procedure, the amount of the fine that will be imposed on it, with the result that the disclosure of the identity of the undertakings concerned and the content of those requests cannot harm the undertakings’ commercial interests.
83 The applicant also claims in that respect that there is no distinction, in terms of protection of commercial interests, between such a disclosure and the information which the Commission makes public concerning the undertakings involved in cartel investigations and penalised in cartel decisions, as regards the possibility of paying or the obligation to pay a heavy fine, the threat of actions for damages and harm to an undertaking’s commercial reputation.
84 The applicant adds that the risk that the creditors of the undertakings’ concerned will withdraw is irrelevant, since those creditors are, in any event, in a position to know the precise financial situation of those undertakings.
85 In that respect it must be noted, as a preliminary, that, having been adopted on the basis of Article 255(2) EC, Regulation No 1049/2001 is intended, as recital 4 and Article 1 thereof indicate, to confer on the public as wide a right of access as possible to documents of the institutions. The second recital in the preamble to that regulation notes that that right of access is part of the democratic nature of the institutions. It also follows from that regulation, particularly from recital 11 in its preamble and from Article 4, which provides for a body of exceptions in that regard, that the right of access to documents is nevertheless subject to certain limitations based on grounds of public or private interest.
86 In order to justify a decision to refuse access to a document whose disclosure has been requested, it is not sufficient, in principle, that the document concern an activity referred to in Article 4(2) of Regulation No 1049/2001. The institution concerned must also explain how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 49, Case C‑139/07 P Commission v Technische Glaswerke Ilmenauu [2010] ECR I‑5885, paragraph 53, and Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API [2010] ECR I‑8533, paragraph 72).
87 In accordance with settled case-law, since they derogate from the principle of the widest possible public access to documents, the exceptions to the right of access, laid down in Article 4 of Regulation No 1049/2001, must be interpreted and applied strictly (Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 63, and Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, paragraph 66).
88 It is in the light of the foregoing considerations that the present dispute must be resolved, bearing in mind that the Commission found in the contested decision that all the requested documents fell within the scope of the first indent of Article 4(2) of Regulation No 1049/2001, namely the exception relating to the protection of the commercial interests of the undertakings concerned, and, as the Court observed in paragraph 59 above, that the requested documents may be classified in five categories, namely the undertakings’ requests, the Commission’s first questionnaire, the undertaking’s reply to the first questionnaire, the Commission’s second questionnaire and the undertaking’s reply to the second questionnaire.
89 In the first place, as regards the undertakings’ requests, it must be held that a risk that the creditors of the undertakings concerned will withdraw cannot arise from the mere fact that the undertaking in question requested the application of Paragraph 35 of the 2006 Guidelines, with the result that the contested decision is unfounded in that respect.
90 Such a risk exists as soon as the creditors of the undertakings concerned know of an investigation in which those undertakings are involved and which is liable to result in heavy penalties. If the Commission were to consider that that risk would be amplified by knowledge of a request for application of Paragraph 35 of the 2006 Guidelines, it would have only to redact the names of the undertakings concerned in that request, bearing in mind that the applicant sought the non‑confidential version.
91 Moreover, for the purposes of preserving the available assets of their debtors, the creditors of the undertakings concerned have a clear interest in those undertakings making a request under Paragraph 35 of the 2006 Guidelines, if their financial situation justifies it.
92 In addition, as the applicant rightly points out, since the undertaking concerned is not aware at that stage of the proceedings of the exact amount of the fine incurred, the content of those requests is necessarily abstract.
93 Accordingly, in contrast to the undertakings’ replies to the Commission’s questionnaires, the undertakings’ requests could not contain detailed, specific and sensitive information on the financial situation of the undertakings concerned.
94 Even if the undertakings’ requests did contain such information, it was entirely open to the Commission to redact from the documents in question any information relating to the specific financial situation of the undertaking, or even the name of the undertaking, since the applicant’s request concerned the non-confidential version of the documents concerned.
95 Accordingly, the Commission could not refuse access to the undertakings’ requests for the purpose of protecting their commercial interests.
96 That assessment cannot be called into question by the Commission’s argument that the undertakings concerned in the present case are opposed to the disclosure of their correspondence with the Commission.
97 That alone cannot justify a refusal of access to the undertakings’ requests.
98 Article 4(4) of Regulation 1049/2001 indeed provides that ‘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’.
99 However, under Article 4(5) of Regulation No 1049/2001, only ‘[a] Member State may request the institution not to disclose a document originating from that Member State without its prior agreement’, and not undertakings such as those concerned in the present case (see, to that effect, Case C‑135/11 P IFAW Internationaler Tierschutz-Fonds v Commission [2012] ECR, paragraph 54).
100 Accordingly, it must be held that the Commission, in the contested decision, wrongly refused access to the non-confidential versions of undertakings’ requests on the basis of the first indent of Article 4(2) of Regulation No 1049/2001.
101 In the second place, as regards the Commission’s first questionnaire, it is clear that the Commission wrongly justified the refusal of access to that document in view of the need to protect the commercial interests of the undertakings concerned, since, according to the Commission itself in its pleadings before the Court, that questionnaire is a ‘standard’ questionnaire, and consequently it could not contain confidential information concerning a particular undertaking.
102 Incidentally, it is clear from a reading of the first two questionnaires submitted by the Commission at the request of the Court as a measure of inquiry that the content of those questionnaires is identical and relatively generic.
103 Accordingly, it must be held that the Commission, in the contested decision, wrongly refused access to its first questionnaire on the basis of the first indent of Article 4(2) of Regulation No 1049/2001.
104 In the third place, as regards the undertaking’s reply to the first questionnaire, it seems clear that, in contrast to the undertakings’ requests, that reply contains specific information relating to the financial situation of the undertakings’ concerned, whose disclosure could affect their commercial interests, since that information is specific and detailed.
105 In the fourth and last place, the same considerations apply to the Commission’s second questionnaire, which is based on the undertaking’s reply to the first questionnaire, and, a fortiori, to the undertaking’s reply to the second questionnaire.
106 Accordingly, it must be held that, in the contested decision, the Commission could lawfully justify the refusal of access to (i) the undertakings’ replies to the first and second questionnaires and (ii) the Commission’s second questionnaire on the basis of the first indent of Article 4(2) of Regulation No 1049/2001, but that it erred in the contested decision in justifying the refusal of access to the non‑confidential versions of the undertakings’ requests and to the Commission’s first questionnaire on the basis of that provision.
107 Nevertheless, that error cannot entail the annulment of the contested decision if the Commission, in that decision, rightly justified the refusal of access to the documents not covered by the first indent of Article 4(2) of Regulation No 1049/2001 on the grounds of another exception laid down in the third indent of that provision.
The plea alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits
108 In support of its claim that the Court should annul the contested decision, the applicant raises a plea alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, according to which the institutions are to refuse access to a document where disclosure would undermine the protection of ‘the purpose of inspections, investigations and audits’, in that the Commission found in the contested decision that, among the requested documents, the Commission’s requests were also covered by that provision.
109 In order to justify the application of that provision, the Commission found in the contested decision that the information requested in its first questionnaire from the undertakings seeking the application of Paragraph 35 of the 2006 Guidelines covered a wide range of financial and commercial data, which would reveal its approach as regards the implementation of Paragraph 35, with the result that public disclosure of those documents would incite some undertakings to adopt strategic behaviour in ongoing or future investigations. In view of the duration of the investigation procedures, the undertakings could therefore be tempted to alter their financial position in order to obtain a reduction on the basis of Paragraph 35 of the 2006 Guidelines (point 5, second subparagraph, second to fifth sentences, of the contested decision).
110 In order for the Commission to exercise its investigative powers in cartel proceedings, it is necessary to minimise the risk of such strategic behaviour (point 5, second subparagraph, sixth sentence, of the contested decision).
111 According to the applicant, if the real reason for refusing access to the Commission’s requests is the risk that, were the first questionnaire to be disclosed, other undertakings would massage their accounts in order to benefit from a reduction under Paragraph 35 of the 2006 Guidelines, the Commission’s staff are, if necessary, entirely capable of detecting such massaging.
112 The applicant claims that, in reality, the Commission does not wish to reveal its general approach to the financial situation of undertakings and the economic and financial theories which it adopts.
113 In any event, the applicant maintains that, while certain parts of the answers to the Commission’s requests might be confidential, that cannot be the case as regards the questions asked in the Commission’s first questionnaire.
114 In that respect, it must be noted, as a preliminary, that the exception relating to the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, must be implemented in accordance with the scheme and the aims of Regulation No 1049/2001 noted in paragraphs 85 to 87 above.
115 In the first place, it must also be pointed out that the Commission itself expressly acknowledged in its pleadings before the Court that it had applied the exception laid down in the third indent of Article 4(2) of Regulation 1049/2001 only in respect of its first questionnaire.
116 In any event, the Commission’s requests cannot be covered in their entirety by the exception relating to the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
117 It is not conceivable that the targeted requests, specific to each undertaking, which the Commission makes in its second questionnaire, following the replies to its first questionnaire, are covered by that exception. Irrespective of whether they are covered by the exception relating to the protection of commercial interests, those requests, in view of their content and their purpose, could not affect a similar current or future Commission investigation.
118 Accordingly, it must be held that, in the contested decision, the Commission could not lawfully justify its refusal of access to its second questionnaire on the basis of the third indent of Article 4(2) of Regulation No 1049/2001, and the applicant’s arguments to that effect must be upheld.
119 Nevertheless, the refusal of access to that document was justified on the basis of the first indent of Article 4(2) of Regulation No 1049/2001, as held in paragraph 106 above, with the result that the erroneous application, in the contested decision, of the third indent of Article 4(2) of Regulation No 1049/2001 to the Commission’s second questionnaire cannot entail the annulment of the contested decision in so far as it concerns that document.
120 In the second place, such considerations do not, however, apply as regards the Commission’s first questionnaire, since it was held, in paragraph 103 above, that the Commission could not, in the contested decision, lawfully justify its refusal of access to the first questionnaire on the basis of the first indent of Article 4(2) of Regulation No 1049/2001.
121 It must therefore be examined whether Commission could lawfully refuse access to its first questionnaire on the basis of the third indent of Article 4(2) of Regulation No 1049/2001.
122 In that respect, the Commission attempts to clarify the reasons for the contested decision, by claiming that its first questionnaire would reveal its approach, which would involve a risk of strategic behaviour on the part of other undertakings.
123 Moreover, the Commission claims that its first questionnaire is constantly adapted from case to case.
124 According to the Commission, the risk of strategic behaviour on the part of undertakings which the disclosure of its first questionnaire would entail would cause it difficulties in carrying out its investigations in future or ongoing cartel proceedings.
125 However, in the present case, those reasons cannot justify the application of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 to the Commission’s first questionnaire.
126 The argument that the disclosure of the first questionnaire would affect the conduct of ongoing or future similar investigations cannot succeed, in view of the ‘standard’ content of that questionnaire, in the words of the Commission itself.
127 In that respect, it must be pointed out that, in the present case, the content of the first two questionnaires submitted by the Commission at the request of the Court as a measure of inquiry is identical and relatively generic.
128 Moreover, the Commission’s argument that the disclosure of its first questionnaire would allow undertakings to adopt strategic behaviour for the purpose of obtaining a reduction under Paragraph 35 of the 2006 Guidelines is also unconvincing, since the Commission itself claims that the first questionnaire was constantly adapted by its staff and that, if necessary, it had sufficient resources to frustrate such behaviour and, in any event, could verify the data supplied and request clarifications in its second questionnaire.
129 Accordingly, the applicant’s plea in law alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001 must be upheld as regards the Commission’s first questionnaire.
The plea alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001 relating to the existence of an overriding public interest
130 For the purpose of the annulment of the contested decision, the applicant raises a plea alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001, in that the existence, in the present case, of an overriding public interest, within the meaning of that provision, precludes refusal of access to the requested documents.
131 In the contested decision the Commission found that the applicant’s interest was ‘of a private nature’ and that, in its view, there were no ‘elements capable of showing the existence of an overriding public interest in the sense of [Regulation No 1049/2001], that is to say objective and general in nature and not indistinguishable from individual or private interests, that would outweigh the need to protect the interests of individual companies having [made an application under Paragraph 35 of the 2006 Guidelines] to maintain confidentiality of their applications and the related documents, the disclosure of which would lead to significant and irreparable damage for them as well as to protect the Commission’s ability to conduct its investigations in anti-trust procedures, in the public interest’.
132 Consequently, the Commission found ‘that, in this case, the prevailing interests [were] the protection of the commercial interests of the companies concerned and the purpose of the anti-trust investigations, as protected by the exceptions in the first and third indents of Article 4(2) of Regulation 1049/2001’ (point 7, fourth subparagraph, of the contested decision).
133 The applicant claims, in the alternative – since it maintains that the exceptions on which the Commission relies are not applicable in the present case – that, in any event, an overriding public interest justifies access to the requested documents. There is, in its view, a strong public interest in the policy behind the Commission’s application of the 2006 Guidelines being made public as a whole in all its aspects.
134 According to the applicant, the objective of legal certainty claimed by the Commission in the context of the 2006 Guidelines would be seriously affected if the implementation of Paragraph 35 thereof were wholly lacking in transparency, in breach, also, of the principles of sound administration and legitimate expectations.
135 By not disclosing even the names of the undertakings which have submitted a request for application of Paragraph 35, the Commission is also in breach of its obligation to state reasons.
136 The Commission rejects those arguments.
137 As a preliminary, it must be pointed out that, pursuant to the last clause of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of, inter alia, commercial interests of a person or the purpose of inspections, investigations and audits, ‘unless there is an overriding public interest in disclosure’.
138 Accordingly, since it has been held in paragraphs 106 and 129 above that the Commission could not lawfully refuse access to the non‑confidential versions of the undertakings’ requests, nor to the Commission’s first questionnaire, on the basis of the first and third indents of Article 4(2) of Regulation No 1049/2001, it is not necessary to rule on the existence of an overriding public interest in relation to those documents.
139 The Court must adjudicate on the plea alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001 only as regards the other requested documents, namely the undertaking’s reply to the first questionnaire, the Commission’s second questionnaire and the undertaking’s reply to the second questionnaire.
140 In that respect, first, it must be noted that the interest of the public in obtaining access to a document pursuant to the principle of transparency, which seeks to ensure greater participation by citizens in the decision-making process and to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system, does not, where the document relates to an administrative procedure intended to apply rules governing competition law in general have the same weight as where the document relates to a procedure in which the institution in question acts in its capacity as legislator.
141 In the present case, the undertaking’s reply to the first questionnaire, the Commission’s second questionnaire and the undertaking’s reply to that questionnaire all clearly relate to an administrative procedure.
142 Secondly, it must also be noted that, as regards the need to obtain disclosure of the documents requested under the overriding interest in the sound administration of justice, the purpose of better preparing an action against a decision does not, as such, constitute an overriding public interest in disclosure capable of prevailing over the protection of confidentiality, for the purposes of Article 4 of Regulation No 1049/2001. Having regard to the general principle of access to documents laid down by Article 15 TFEU and recitals 1 and 2 of the preamble to the regulation, that interest must be objective and general in nature and must not be indistinguishable from individual or private interests, such as those relating to the pursuit of an action brought against the institutions of the European Union, since such individual or private interests do not constitute an element which is relevant to the weighing up of interests provided for in the second subparagraph of Article 4(3) of the regulation.
143 Under Article 2(1) of Regulation No 1049/2001, the beneficiaries of the right of access to the documents of the institutions comprise ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. It is clear from that provision that the purpose of the regulation is to guarantee access for everyone to public documents and not just access for the requesting party to documents concerning it (Joined Cases T‑110/03, T‑150/03 and T‑405/03 Sison v Council [2005] ECR II‑1429, paragraph 50).
144 Consequently, the individual interest which a party may invoke when requesting access to documents of personal concern to it cannot generally be decisive for the purposes both of the assessment of the existence of an overriding public interest and of the weighing up of interests under the second subparagraph of Article 4(3) of Regulation No 1049/2001 (Case T‑403/05 MyTravel Group v Commission [2008] ECR II‑2027, paragraph 66).
145 Thus, even if the documents requested prove necessary for the applicant’s defence in the context of an action – a question which falls to be considered in the examination of that action – that is irrelevant for the purpose of assessing the balance of the public interest.
146 In the present case, in its initial request for access, the applicant relied exclusively on a private interest, as noted in paragraph 8 above, namely to exercise fully its rights with a view to bringing an action against the decision at issue.
147 However, in its confirmatory request for access, the applicant no longer mentioned that interest and referred to an overriding public interest. In that respect, it claimed that ‘the overriding public interest at stake in relation to access to the documents underlying the Commission decision to grant [a reduction] to [Y]’, under Paragraph 35 of the 2006 Guidelines, ‘lies in the principles of good administration, transparency and the proper implementation of Union competition policy’. Since ‘the Commission has decided to fine [Y] EUR 1 000 000 for participation in a cartel which it claims lasted for 12 years and of which [Y] was considered to be one of the ringleaders’, ‘the public have a simple right to know why, to the extent that this is compatible with [Y]’s right to have its commercial interests protected’, that being ‘the very purpose of the provision by applicants of non-confidential versions of all documents filed in the course of an investigation’.
148 That line of argument cannot succeed.
149 It is clear from the documents before the Court that the applicant clearly intended, expressly and exclusively in the initial request for access, to refer to those documents in an action which it had brought against the decision at issue, an action in which it also asked the Court, as a measure of organisation of procedure, to order the Commission to produce some of the requested documents sought in the present case.
150 In any event, as regards the overriding public interest relied on by the applicant in its confirmatory request for access, it must be pointed out that it is true that, as regards the transparency of the Commission’s policy, as asserted by the Commission in the 2006 Guidelines, knowledge of the information which it requests from undertakings and which it takes into account in order to apply Paragraph 35 of those guidelines is in keeping with the principles of sound administration and legal certainty.
151 However, it must be noted that such considerations are valid only to the extent that the information in question reflects the Commission’s policy and is not specific to the undertaking at issue.
152 That cannot be the case as regard the undertaking’s reply to the first questionnaire, or as regards the undertaking’s reply to the second questionnaire.
153 Nor can it be the case as regards the Commission’s second questionnaire, which necessarily depends on the content of the undertaking’s reply to the first questionnaire.
154 Accordingly, the potential existence of an overriding public interest can be examined only as regards the first questionnaire.
155 However, for the reasons set out in paragraph 138 above, it is not necessary for the Court to adjudicate on the present plea as regards the first questionnaire.
156 Consequently, the applicant has not established the existence of an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001.
157 That assessment cannot be called into question by the applicant’s argument that, in failing to disclose the names of undertakings which requested the application of Paragraph 35 of the 2006 Guidelines, the Commission also infringed its obligation to state reasons.
158 The applicant does not claim that the statement of reasons for the contested decision has not allowed it to know the justification for the measure taken, nor the Court to exercise its power of review. In any event, the reasons stated for the decision, referred to in paragraphs 20 to 26 above, show the Commission’s reasoning in a clear and unequivocal manner.
159 Accordingly, the applicant’s plea in law alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001 must be rejected.
The plea alleging infringement of Article 4(6) of Regulation No 1049/2001, relating to the partial access to the requested documents and the principle of sound administration
160 The applicant claims, in the alternative, that the Commission was wrong to refuse partial access to the requested documents, in breach of Article 4(6) of Regulation No 1049/2001, under which the Commission is required to carry out a concrete, individual assessment of the requested documents, and likewise of the principle of sound administration.
161 In the contested decision, the Commission concluded, ‘[a]fter careful examination of the documents concerned’, ‘that only fragmented parts, the reading of which would be meaningless, would not be covered by any exception’ (point 6, second sentence, of the contested decision).
162 However, ‘taking into account the principle of sound administration’, the Commission considered that ‘the administrative burden necessary for identifying such parts would be disproportionate in this case’ and that, ‘[c]onsequently, no partial access [was] possible’, citing Case C‑353/99 P Council v Hautala [2001] ECR I‑9565, paragraph 30 (point 6, second and third sentences, of the contested decision).
163 The applicant observes that, under the principle of sound administration, the Commission is required to carry out a concrete, individual assessment of the documents to which access is requested on the basis of Regulation No 1049/2001, which it did not do in the present case, and that it cannot escape that obligation by invoking its workload.
164 In order to challenge the contested decision on the ground that the Commission also refused it partial access to the document, the applicant relies on paragraphs 102 to 116 of VKI, from which it can be seen, according to the applicant, that the Commission is required to undertake a concrete examination of whether and how it might adopt a less onerous measure than that involving a concrete, individual examination, whereas in the present case the Commission did not study all conceivable options or explain in detail the reasons why those various options also entailed an unreasonable amount of work.
165 On that basis, the applicant observes that, for two thirds of the requested documents, namely the undertakings’ requests and the undertakings’ replies, the Commission already had non‑confidential versions, so that its workload was limited to the second category of requested documents, namely the Commission’s requests. Moreover, the Commission’s first questionnaire should not involve an excessive workload and, ultimately, the number of documents to be analysed could be fewer than 15.
166 Lastly, the applicant claims that it is not for the Commission, but for the public, to determine whether a document is or is not so fragmented as to be meaningless.
167 In that respect, it must be noted that, in accordance with Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released.
168 In the first place, as regards the non-confidential versions of the undertakings’ requests and of the Commission’s first questionnaire, the Court held, in paragraph 106 above, that the Commission erred in finding that those documents were covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001. Likewise, the Court found, in paragraph 129 above, that the Commission’s first questionnaire did not fall within the scope of the third indent of that provision.
169 Accordingly, the Commission could not lawfully refuse access to those documents, with the result that it is not necessary to rule on the applicability of Article 4(6) of Regulation No 1049/2001 or on the principle of sound administration as regards those documents.
170 In the second place, as regards the other requested documents, namely the undertaking’s reply to the first questionnaire, the Commission’s second questionnaire and the undertaking’s reply to the second questionnaire, the Court of Justice has held that the principle of proportionality was correctly applied when, in response to the argument of the institution concerned based on the excessive administrative burden which would be entailed by an obligation to ensure partial access to the documents it held, it was appropriate to reserve the possibility of safeguarding the interests of sound administration in particular cases (Council v Hautala, paragraph 30).
171 In the present case, first of all, it has been held, in paragraph 77 above, that the Commission carried out a concrete, individual examination of the requested documents, with the result that applicant’s argument alleging that the Commission did not carry out such an examination must be rejected.
172 Moreover, the Commission was entitled to consider, in the contested decision, that a partial disclosure of those other documents would be pointless.
173 In order to make such a disclosure, the Commission would first have had to make inaccessible the parts of the undertaking’s reply to the first questionnaire which were covered by the exception relating to the protection of commercial interests, with the result that the document would have been limited to the questions set out in the questionnaire.
174 As regards its second questionnaire, the Commission could not efficiently make inaccessible the parts covered by the exception relating to the protection of the commercial interests at issue, in view of the targeted nature of that questionnaire.
175 Last, logically, a partial disclosure of the undertaking’s reply to the second questionnaire would also have required the Commission to render inaccessible, in that document, the parts of the undertaking’s reply covered by the exception relating to the protection of commercial interests, with the result that the document in question would have been entirely deprived of its content.
176 Accordingly, the plea in law alleging infringement of Article 4(6) of Regulation No 1049/2001 and of the principle of sound administration must be rejected.
177 It follows from all the foregoing that the contested decision must be annulled to the extent that it refuses access to the non-confidential versions of the undertakings’ requests and the Commission’s first questionnaire.
178 The action is dismissed as to the remainder.
Costs
179 Pursuant to Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
180 In the present case, the Court, in paragraph 177 of this judgment, upholds in part the form of order sought by the applicant.
181 Consequently, in the light of the circumstances of the present case, it is appropriate to order the Commission to pay half of the costs incurred by the applicant and half of its own costs. The applicant must be ordered to pay half of its own costs and half of the costs incurred by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls Commission Decision Gestdem No 2009/5145 of 23 February 2010, refusing the applicant access to certain documents in the administrative file in Case COMP/38589 – Heat stabilisers, on the basis of 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, to the extent that it refuses access to the non-confidential versions of the undertakings’ requests and to the European Commission’s first questionnaire;
2. Dismisses the action as to the remainder;
3. Orders Reagens SpA to pay half of its own costs and half of the costs incurred by the Commission;
4. Orders the Commission to pay half of its own costs and half of the costs incurred by Reagens.
Delivered in open court in Luxembourg on 20 March 2014.
[Signatures]