Case T‑344/08

EnBW Energie Baden-Württemberg AG

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Administrative file relating to cartel proceedings — Refusal of access — Exception relating to protection of the purpose of investigations — Exception concerning the protection of the commercial interests of a third party — Exception concerning the protection of the decision-making process — Obligation of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the request for access)

Summary of the Judgment

1.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation of the institution to carry out a concrete, individual examination of the documents — Scope

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

2.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Applicant pursuing a personal interest — No effect on the right of access

(European Parliament and Council Regulation No 1049/2001)

3.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation of the institution to carry out a concrete, individual examination of the documents — Derogation from the obligation to examine the documents — Conditions

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

4.      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 — Limits

(European Parliament and Council Regulation No 1049/2001, Art. 4; Council Regulations No 659/1999 and No 1/2003)

5.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation of the institution to carry out a concrete, individual examination of the documents — Scope — Exclusion of the obligation — Possibility of carrying out an examination by categories of document — Conditions

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

6.      European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Examination proving particularly burdensome and inappropriate — Derogation from the obligation to examine the documents — Limited scope — Burden of proof falling upon the institution — Obligation of the institution to consult with the applicant

(European Parliament and Council Regulation No 1049/2001, Arts 4, 7(3), and 8(2))

7.      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 — Possibility of applying that exception once those inspections, investigations and audits have come to an end — Conditions

(Art. 81 EC; European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent)

8.      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 — Limits

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

9.      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 particular person — Scope

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

10.    European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Independent interpretation in relation to the right of access provided for by Regulation No 1/2003 in competition cases — Commission’s obligation to carry out, following examination of a competition case, a further examination of an application for access under Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001; Council Regulation No 1/2003)

11.    European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process

(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)

1.      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 regarding public access to European Parliament, Council and Commission documents 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.

Accordingly, consideration of a possible breach of that obligation is a step to be taken prior to considering any infringement of the provisions of Article 4 of Regulation No 1049/2001. It follows that the Courts of the European Union must in any event ascertain, in the context of considering the issue of 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.

(see paras 28, 29)

2.      The personal interest which an applicant may pursue with its request for access is a criterion wholly extraneous to Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents; it is therefore not for the Commission to make judgments or suppositions in that regard or to draw conclusions on that basis with regard to the treatment of the request.

(see para. 36)

3.      Derogations from the obligation to undertake a concrete, individual examination of documents requested from an institution on the basis of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents may be envisaged in three situations. First, there are situations in which it is obvious that access must be refused or, on the contrary, granted. Such a situation could arise, for example, if certain documents (i) were manifestly covered in their entirety by an exception to the right of access or, conversely, (ii) were manifestly accessible in their entirety, or, finally, (iii) had already been the subject of a concrete, individual assessment by the Commission in similar circumstances. It is also open to the institutions, for the purpose of explaining how access to the documents requested could undermine the interest protected by an exception laid down in Article 4(2) of Regulation No 1049/2001, to base their decisions on general presumptions which apply to certain categories of document, since similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature. Secondly, a single justification may be applied to documents belonging to the same category, which will be the case, in particular, if they contain the same type of information, the criterion applied to all the documents in question thus concerning their content. It is for the Courts of the European Union to ascertain whether the documents within that category are manifestly covered in their entirety by the exception relied on.

Third, in exceptional cases and only where the administrative burden entailed by a concrete, individual examination of the documents would prove particularly heavy, thus exceeding the limits of what may reasonably be required, derogation from that obligation to examine the documents may be permissible.

(see paras 45-47)

4.      Although, when a request for access is made in accordance with Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is open to the institution concerned to base its decision, when it is minded to refuse to grant such access, on general presumptions which apply to certain categories of document and which may arise as a result of there being a document-access system specific to a particular procedure, the fact remains that such systems, whether they concern State aid or cartels, are applicable only throughout the procedure in question and not in a situation in which the institution has already adopted a final decision closing the file to which access is sought. Moreover, while account must be taken of any restrictions on access to the file that may obtain in particular procedures, such as cartel procedures, the fact that such matters are taken into account does not give grounds for assuming that, if the Commission’s ability to proceed against cartels is not to be undermined, all the documents held in its files in that domain are automatically covered by one of the exceptions laid down in Article 4 of Regulation No 1049/2001.

(see paras 55, 57, 61)

5.      As regards the right of access to documents, a single justification for refusing to grant such access may be applied to documents belonging to the same category, particularly if they contain the same type of information. However, a document-by-document assessment is in any event necessary in order to carry out an examination — mandatory pursuant to Article 4(6) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents — of whether partial access to the documents requested should be granted. It is, therefore, only in the event that the documents falling within a category are manifestly covered in their entirety by an exception to the right of access that the institution may dispense with an individual examination of those documents. Furthermore, the document categories created by the institution in question must be defined on the basis of the information in the documents. It is particularly in a case in which documents falling within one category contain the same type of information that refusal to disclose a whole group of documents may be based on a single justification. In fact, in such circumstances, justifying non-disclosure by groups of documents facilitates or simplifies the Commission’s task when examining the request and providing reasons for its decision.

It follows that an examination by categories is lawful only if it plays a useful role in processing a request for access. The document categories must therefore be defined on the basis of criteria that enable the Commission to apply a single line of reasoning to all the documents within one category.

(see paras 64-67, 76, 79, 85)

6.      Inasmuch as the right of access to documents held by the institutions constitutes an approach to be adopted in principle, it is with the institution relying on an exception related to the unreasonableness of the task entailed by the request that the burden of proof of the scale of that task rests. Consideration of the amount of work entailed in processing an application is not, in principle, relevant for the purpose of adjusting the extent of the right of access. Moreover, the amount of work entailed in considering a request for access depends not only on the number of documents referred to in the request and their volume, but also on their nature. Consequently, the need to undertake a concrete, individual examination of very numerous documents does not, on its own, provide any indication of the amount of work entailed in processing a request for access, since the amount of work will also depend on the required depth of that examination.

Furthermore, where the institution has adduced proof of the unreasonableness of the administrative burden entailed by a concrete, individual examination of the documents referred to in the request, it is obliged to try to consult with the applicant in order, on the one hand, to ascertain or to ask him to specify his interest in obtaining the documents in question and, on the other, to consider specifically whether and how it may adopt a measure less onerous than a concrete, individual examination of the documents. Since a right of access to documents is the principle, the institution nevertheless remains obliged, against that background, to prefer the option which, whilst not itself constituting a task which exceeds the limits of what may reasonably be required, remains the most favourable to the applicant’s right of access. It follows that the institution may dispense with a concrete, individual examination only after it has genuinely investigated all other conceivable options and explained in detail in its decision the reasons why those various options also involve an unreasonable amount of work.

(see paras 100-102, 105, 106)

7.      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 the exception is not to protect investigations as such, but rather their purpose, which, in the case of competition proceedings, is to determine whether an infringement of Article 81 EC has taken place and to penalise the companies responsible if that be the case. It is for that reason that 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, regardless of whether that decision might subsequently be annulled by the courts, because it is at that moment that the institution in question has itself considered the proceedings to be completed.

Indeed, 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 the possible consequences of the proceedings in question have been decided — even in the case where an action which may lead to a re-opening of the proceedings before the Commission has been brought before the General 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 censuring 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 116, 119-121)

8.      As regards access to documents, the concept of the purpose of investigations cannot be interpreted as having a general scope so as to include the whole of the Commission’s policy in regard to the punishment and prevention of cartels. Such an interpretation would amount to permitting the Commission to exclude all the documents contained in a competition case-file from the application of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, without any limit in time, merely by reference to a possible future adverse impact on its leniency programme. In that regard, the consequences which the Commission fears for its leniency programme depend on a number of uncertain factors, including, in particular, the use that the parties prejudiced by a cartel will make of the documents obtained, the success of any actions which they may bring for damages, the amounts which will be awarded them by the national courts and the way in which undertakings participating in cartels will react in future.

Such a broad interpretation of the concept of investigations is therefore incompatible with the principle that — on account of the purpose of Regulation No 1049/2001, as stated 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 gives grounds for assuming that European Union (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 investigations differently in the context of competition policy than in other EU policies.

In addition, the leniency and co-operation programmes whose effectiveness the Commission is seeking to protect are not the only means of ensuring compliance with EU competition law. Actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the European Union.

(see paras 123, 125-128)

9.      It is not possible to regard all information concerning a company and its business relations as covered by 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. Even though the fact that actions for damages are brought against a company can undoubtedly cause high costs to be incurred, be it only in terms of legal costs, even where the actions are subsequently dismissed as unfounded, the fact remains that the interest of a company which has taken 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 134, 148)

10.    The rights of the defence as specific rights subsumed within the fundamental rights of undertakings that have been sent a statement of objections by the Commission give rise, by virtue of Article 27(2) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, solely for specific purposes, to access to specific documents from which only the institution’s internal documents, the business secrets of other undertakings and other confidential information are excluded. On the other hand, the public right of access under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, as a general right, may possibly give rise, without any restriction as to how the documents obtained are used, to access to all the documents in the institutions’ possession, while such access may be refused on a series of grounds set out in Article 4 of the regulation. In view of those differences, the fact that the Commission has already determined the degree of access it could grant to the information held in a competition case-file (in the context of access to the file as required by the rights of the defence), or to what extent that information should be published (in the context of the public version of the decision issued on conclusion of competition-law proceedings), does not mean that it may dispense with any further consideration of those questions in the light of the specific conditions linked to the right of access under Regulation No 1049/2001.

Even if there can be no question of applying a strict rule whereby all information relating to facts in existence for a particular length of time should be regarded as no longer affecting the commercial interests of the company to which it relates, the fact that the information in question has been in existence for a particular length of time increases the likelihood that the commercial interests of the companies concerned will no longer be affected to an extent that justifies the application of an exception to the principle of transparency embodied in Regulation No 1049/2001. Therefore, the fact that information concerning the commercial activities of a company covers a period of 16 years in the past may mean that the Commission is obliged to carry out a concrete, individual examination of the documents requested from the point of view of the exception concerning the protection of commercial interests. Similarly, the fact that a period of a period of more than two years has elapsed between the grant of access to the file under Article 27(2) of Regulation No 1/2003 and the adoption of a decision on access to documents under Regulation No 1049/2001 is sufficient for the Commission to be obliged to carry out a further examination of the requirements for confidentiality deriving from the protection of the commercial interests of the undertakings concerned.

(see paras 142, 145, 146)

11.    Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which concerns the exception for protecting the decision-making process, draws a clear distinction by reference to whether a procedure has been closed or not. It is for only part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) allows access to be refused even after the decision has been taken, where disclosure of the documents would seriously undermine the decision-making process of that institution. It follows that the European Union legislature took the view that, once the decision has been adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can never undermine that process and that refusal of access to such a document cannot be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question.

(see paras 152-154)