Action brought on 14 August 2013 – Unión de Almacenistas de Hierros de España v Commission

(Case T-419/13)

Language of the case: Spanish

Parties

Applicant: Unión de Almacenistas de Hierros de España (Madrid, Spain) (represented by: A. Creus Carreras, A. Valiente Martin and C. Maldonado Márquez, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the contested Commission decision of 18 June 2013;

order the Commission to pay the costs of the present proceedings;

in addition, as a measure of organisation of procedure, order the Commission to submit to the Court the documents to which it has denied access, so that the Court may examine them and verify the exactitude of the submissions made in the application.

Pleas in law and main arguments

In February 2013, the Unión de Almacenistas de Hierros de España (UAHE) requested access to certain documents in the possession of the European Commission by virtue of the mechanism for coordination with the national competition authorities provided for in Article 11(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). Specifically, the applicant sought access to all documents and communications exchanged between the Commission’s Directorate-General for Competition and the Spanish National Competition Commission (Comisión Nacional de la Competencia), concerning the penalty proceedings S-106/08 Almacenes de Hierro and S-254/10 Hierros Extremadura.

After a first extension of the time-limit until 11 April 2013, the Commission sent the UAHE a communication whereby it:

(a)    granted access to the acknowledgements of receipt sent to the Comisión Nacional de la Competencia in relation to the two sets of proceedings in question;

(b)    informed the applicant that it did not have any information relating to those proceedings and that the information in its possession was protected by the exceptions laid down in Article 4 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 UAHE repeated its request and, after a first extension of the time-limit by 15 days, the Commission sent a further letter on 18 June, informing the UAHE that it was extending indefinitely the period for a response to the requests for access at issue.

In support of the action, the applicant relies on four pleas in law.

First plea in law, alleging an error of law in the interpretation of Article 4 of Regulation 1049/2001, in that the Commission did not carry out a concrete, individual assessment of the applicability of the exceptions laid down in that provision to the requests for access at issue in the present proceedings.

Second plea in law, alleging breach of the first indent of Article 4(2) of Regulation 1049/2001, in that the requested information does not contain elements which could undermine the commercial interests of third-parties. In any event, that information could affect the interests of the applicant itself.

Third plea in law, alleging breach of the third indent of Article 4(2) of Regulation 1049/2001, in that the concept of investigations provided therein can only refer to investigations by Community institutions or bodies, not national ones. Moreover, the facts investigated in both sets of proceedings are now time-barred.

Fourth plea in law, alleging breach of the second subparagraph of Article 4(3) of Regulation 1049/2001, in that, in the context of the requested documents, the Commission does not take decisions, since its approach is purely passive, merely receiving documents or making observations. Furthermore, and in any event, the exception relied on can be applied only in respect of internal documents.