ORDER OF THE GENERAL COURT (Third Chamber)
7 March 2013(*)
(Action for annulment – Request seeking to obtain the transmission to the French competition authority of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents – Use in the context of national proceedings concerning the French detergents sector – Lack of interest in bringing proceedings – Inadmissibility)
In Case T‑64/12,
Henkel AG & Co. KGaA, established in Düsseldorf (Germany),
Henkel France, established in Boulogne‑Billancourt (France),
represented by R. Polley, T. Kuhn, F. Brunet and É. Paroche, lawyers,
applicants,
v
European Commission, represented by N. Khan and P. Van Nuffel, acting as Agents,
defendant,
APPLICATION, first, for annulment of the decision allegedly contained in the Commission’s letter of 7 December 2011 (Case COMP/39.579 – Consumer detergents – and Case 09/0007 F) whereby the Commission refused to act on the applicants’ request seeking the transmission to the French competition authority, in the context of Case 09/0007 F concerning the French detergents sector, of several documents produced in Case COMP/39.579, and, secondly, for an order by the General Court requiring the Commission to authorise the applicants to rely on the documents at issue in the proceedings before the French competition authority or before the competent French court in the context of an appeal against the decision of the French competition authority, and for any other measure that the Court deems appropriate,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 In December 2009, the European Commission initiated a proceeding against Unilever NV and Unilever PLC (hereinafter collectively referred to as ‘Unilever’), The Procter & Gamble Company and Procter & Gamble International Sàrl (hereinafter collectively referred to as ‘P&G’) and the first applicant, Henkel AG & Co. KGaA (the parent company of Henkel France), concerning an anti-competitive cartel on the market for consumer textile detergents in eight Member States, including France. The case was dealt with in accordance with the settlement procedure laid down in Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3). The first applicant’s representatives obtained access to the documents in the Commission’s file, after undertaking to keep those documents confidential, in accordance with Article 10a(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 [EC], as amended (OJ 2004 L 123, p. 18). The proceeding initiated by the Commission was closed by Commission Decision C(2011) 2528 final of 13 April 2011, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.579 – Consumer detergents), a summary of which was published in the Official Journal of the European Union of 2 July 2011 (OJ 2011 C 193, p. 14).
2 As is apparent from Decision C(2011) 2528 final, Henkel AG & Co. was the first undertaking to inform the Commission of the existence of the cartel in question. Consequently, pursuant to its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’), the Commission granted it a total immunity from fines (fine set at EUR 0). By contrast, P&G and Unilever, which had also lodged requests, accompanied by several documents, … that the Leniency notice be applied, obtained only a reduction of the fines which the Commission finally imposed on them, amounting, respectively, to EUR 211.2 million and EUR 104 million.
3 In parallel with Case COMP/39.579 investigated by the Commission, the French competition authority (‘the ADLC’) carried out an investigation on the basis of Article 101 TFEU and its national equivalent, namely Article L. 420-1 of the French Commercial Code, which concerned an anti-competitive cartel in the consumer textile detergents sector in France which had been brought to the attention of the ADLC by four detergent manufacturers operating in France. Those detergent manufacturers successively applied to the ADLC for the benefit of the French leniency regime on the basis of Article L. 464-2 of the French Commercial Code. [confidential]
4 As is apparent from Article L. 461‑1 of the French Commercial Code, the ADLC is an independent administrative authority which ensures free competition and supports the competitive operation of markets at the European and international levels. The powers assigned to it are exercised by a college consisting of 17 members, including a president. According to Article L. 461‑4 of the French Commercial Code, the ADLC has preparatory inquiry units managed by a rapporteur general who appoints the assistant rapporteurs general, the permanent and non-permanent rapporteurs, and the investigators of the preparatory inquiry units. Those units carry out the investigations necessary for the application, inter alia, of Title II of Book IV of the French Commercial Code, which includes Article L. 420‑1. Article L. 461‑4 of the French Commercial Code provides, moreover, that a hearing officer, qualified to serve as a judge or offering equivalent guarantees of independence and experience is to be appointed to the ADLC. From the transmission of the statement of objections, the hearing officer collects the observations, if any, of the parties involved regarding the proceedings which concern them. He provides the president of the ADLC with a report evaluating those observations and proposing, if necessary, any measure allowing the improvement of the parties’ exercise of their rights.
5 Proceedings before the ADLC are governed by Articles L. 463‑1 to L. 463‑8 of the French Commercial Code. In accordance with Article L. 463‑2 of that Code, the Rapporteur General or an Assistant Rapporteur General whom he appoints, notifies the objections to the parties concerned and the Commissaire du Gouvernement (Government Commissioner), who may consult the file and present their observations. Unless the Rapporteur General decides that the case will be examined by the ADLC without a report, the report is notified to the parties, to the Commissaire du Gouvernement, and to the ministers concerned. That report is accompanied by the documents which the rapporteur responsible for the file relies upon, and observations, if any, made by the parties concerned. The parties have two months to present a response. Under Article L. 463‑7 of the French Commercial Code, the parties may apply to be heard by the ADLC at the session in which the case is disposed of. That session is not public. The ADLC may also hear any person whose testimony seems likely to provide relevant information. The Rapporteur General or the Assistant Rapporteur General whom he appoints and the Commissaire du Gouvernement may also present their observations.
6 By letter of 3 August 2010, sent to the Commission, the applicants identified certain documents in the file of procedure COMP/39.579 and stated why they considered that those documents would be very useful to them in their defence in the case before the ADLC. [confidential]
7 The Commission replied to that request by e-mail of 31 August 2010. It first indicated that Case COMP/39.579 was distinct from the case before the ADLC. It then recalled that the first applicant’s representatives had agreed to keep the documents at issue confidential and that this obligation remained in force. Finally, it indicated to the applicants that the Commission’s authorisation was not necessary in order to ask the ADLC to request, on the basis of Article 11(2) of Regulation No 1/2003, the transmission of the documents at issue. It specified that, in the event that the applicants made such a request, they should indicate to the ADLC that they had identified the documents in question in their letter referred to in the above paragraph. The ADLC would be able, if necessary, to obtain a description of the documents in question from the Commission.
8 By letter of 14 September 2010, the applicants wrote to the Assistant Rapporteur General of the ADLC responsible for the file. They indicated that they considered that the documents referred to in their letter of 3 August 2010 addressed to the Commission contained evidence indispensable for the proper exercise of their rights of defence before the ADLC, to the extent that those documents could allow the applicants to show the international dimension of the case before the ADLC or establish other important aspects of that case. They therefore asked the ADLC to request the Commission, in accordance with Article 11(2) of Regulation No 1/2003, to transmit copies of the documents at issue.
9 According to Decision No 11-D-17 of 8 December 2011, whereby the ADLC closed the proceedings before it (‘the ADLC’s decision’), the ADLC’s preparatory inquiry unit replied to the applicants, in their report of 16 December 2010, that it was not necessary to act on their request referred to in the above paragraph since they considered that the cases before, respectively, the Commission and the ADLC did not concern the same practices and were different, and that Article 11 of Regulation No 1/2003 was an instrument intended inter alia to allow the allocation of cases to competition authorities well placed to deal with them.
10 By letter of 11 March 2011, the applicants, pursuant to Article R. 461‑9 of the French Commercial Code, made submissions to the Hearing Officer of the ADLC regarding what they perceived as difficulties in the exercise of their rights in the proceedings before the ADLC, relating to the Commission’s failure to transmit the documents at issue to the ADLC. Moreover, in their observations on the report referred to in the above paragraph, the applicants maintained their request that the ADLC request the documents at issue from the Commission.
11 On 12 September 2011, the Assistant Rapporteur General responsible for the file wrote to the Commission. After recalling the facts summarised in paragraphs 8 to 10 above, he added the following:
‘Having regard to Henkel’s insistence, presented on the basis of the effective exercise of its rights of defence, that [the documents at issue] be placed in the file [of the case before the ADLC], I ask you to authorise [the ADLC] to access those documents and to place them in its file … so that [it] may use them to examine whether, as maintained by Henkel, they could contribute to establishing a “set of indicia showing the existence of a single, complex and continuous infringement”’.
12 The Assistant Rapporteur General indicated, in the same letter, that the ADLC’s session was scheduled for 18 October 2011 and that the Hearing Officer was required to submit his report to the president of the ADLC at the latest 10 working days prior to the session.
13 By letter of 30 September 2011 referring to ‘Case COMP/39.579 – Consumer Detergents – and Case 09/0007 F’ as its subject (‘the letter of 30 September 2011’), the Commission indicated to the ADLC that it was not in a position to transmit the documents requested, on the ground that those documents, submitted by undertakings other than the applicants and requesting leniency, enjoyed a particularly high confidentiality protection and that, moreover, under Article 12(2) of Regulation No 1/2003, they could be used as evidence only for the purpose for which they were collected. According to the Commission, the COMP/39.579 proceedings and the proceedings before the ADLC concerned different infringements.
14 On 3 October 2011, the Hearing Officer of ADLC submitted his report. After recalling the facts summarised in paragraphs 8 to 13 above, he set out the following conclusion:
‘It would thus seem that [the ADLC’s] preparatory inquiry unit took all appropriate measures within its power to ensure respect for the rights of defence, to the extent that the parties sought to exercise them. As a result, it is found that all the means necessary to ensure the effective exercise of their rights were indeed made available to the [applicants].’
15 On 10 October 2011, the applicants sent a letter to the president of the ADLC, in which they challenged the reasons set out by the Commission to justify its refusal to transmit the documents at issue. They added that, despite the intervention of the Hearing Officer, they were still not in a position to exercise their rights of defence before the ADLC, given the impossibility of discussing those documents at the session of the ADLC. Accordingly, they requested the ADLC to postpone the session.
16 By letter of 17 October 2011, the applicants made a request to the Commission for access to documents, on the basis of Article 2 of Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), concerning the documents referred to in their letter of 3 August 2010. In that letter of 17 October 2011, under the title ‘General Observations’, the applicants made some observations calling into question the position adopted by the Commission in its letter of 30 September 2011 to the ADLC (see paragraph 13 above).
17 On 18 October 2011, the Rapporteurs, the Assistant Rapporteur General, the Commissaire du Gouvernement, and the representatives of the applicants and other undertakings implicated in the case before the ADLC were heard at a session of the latter. In that session, the applicants, inter alia, requested the ADLC to stay the proceedings, in the light of the Commission’s refusal, expressed by the letter of 30 September 2011, to transmit the documents which that letter concerned.
18 By letter of 8 November 2011, the Commission rejected the applicants’ request for access to documents, submitted under Regulation No 1049/2001. It indicated, at the same time, that its letter replied only to that request, and that, since the applicants’ letter of 17 October 2011 contained observations ‘outside the framework of that Regulation’, they would be addressed in a separate letter.
19 By its letter of 23 November 2011, the Commission indicated to the ADLC that it had ‘re-examined its initial position indicated in the letter of 30 September 2011’. That re-examination led it to envisage ‘potential modalities which would allow the [ADLC] to examine the documents at issue’. It therefore informed the ADLC that it had also contacted P&G and Unilever, in order to obtain their agreement to the possible transmission of the documents at issue. It added that, in the event that either of those parties did not agree to the transmission of those documents to the ADLC, it would be willing, nevertheless, to transmit the documents if the ADLC provided a written commitment that it would not use them in order to impose fines on the leniency applicants, on any other natural or legal person covered by that favourable treatment, or on their employees or former employees, as provided by Article 41(2) of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43). Accordingly, it asked the ADLC to provide it with that written commitment and to ‘confirm that the guarantees necessary for the authorisation of the transmission of documents, such as those referred to in paragraph 35 of the Leniency Notice, will be provided’.
20 By letter of 5 December 2011, the president of the ADLC replied to the Commission’s letter of 23 November 2011. He indicated that the inter partes procedure before the ADLC had been closed, that the case was no longer with the preparatory inquiry unit and that the deliberations had commenced. He then indicated that ‘accordingly, a transmission of the documents at issue [was] no longer necessary, unless the College refers the case back to the preparatory inquiry stage in order to obtain further information and another exchange of arguments between the parties, if that [proved] to be necessary.’ Furthermore, he indicated that the ADLC could provide the guarantee provided for in paragraph 35 of the Leniency Notice, as asked of it, but that it would not be possible to provide the written commitment referred to in paragraph 41(2) of the Commission Notice on cooperation within the Network of Competition Authorities.
21 By letter of 7 December 2011, the Commission responded to the applicants’ letter of 17 October 2011, in so far as that letter contained general observations, criticising the Commission’s rejection – by its letter of 30 September 2011 – of the request of the Assistant Rapporteur General of the ADLC seeking the transmission of the documents at issue. The Commission disputed the applicants’ arguments and, moreover, informed the applicants of subsequent developments, concerning the letter of 23 November 2011 sent by the Commission to the ADLC and the President of the ADLC’s reply, by his letter of 5 December 2011.
22 By the ADLC’s decision of 8 December 2011, the ADLC closed the proceedings before it and found that several undertakings, including the applicants, had infringed Article 101(1) TFEU and Article L. 420‑1 of the French Commercial Code by their participation in an anti-competitive cartel in the standard detergents sector as regards supermarkets and hypermarkets in France. In consequence, it, inter alia, imposed a fine on the applicants of over EUR 90 million.
23 In its decision, the ADLC examined and rejected the applicants’ application for a stay of proceedings (see paragraph 17 above). First it pointed out, in paragraph 357 of that decision, that in the context of the proceedings before the ADLC the lawful exercise of the applicants’ rights of defence was organised in accordance with the relevant provisions of the French Commercial Code. In requesting the Commission to transmit to it the documents sought by Henkel, the ADLC had agreed to go beyond the confines of the inter partes procedure under the French Commercial Code. The fact that at the time of the session of the ADLC and its decision the applicants had not been able to obtain the documents at issue was not attributable to the ADLC and could not constitute an infringement of the latter’s obligations, the scope of which is defined – in the light of the procedural autonomy which the Member States enjoy in this matter – by the relevant provisions of the French Commercial Code.
24 Secondly, the ADLC examined in paragraphs 358 to 360 of its decision, on the one hand, the nature of the connection between the documents at issue and the case before it and, on the other hand, how those documents could actually influence the exercise of the applicants’ rights of defence. As regards the first issue, the ADLC found that the documents at issue related to a case concerning an anti-competitive practice that the Commission itself had classified as distinct from the case pending before the ADLC. The ADLC therefore found that it was necessary to recognise that the connection between those documents and the case before the ADLC was not ‘as close as [the applicants] claim’. As regards the second issue, the ADLC found that, as the applicants themselves acknowledged, the documents at issue were requested neither to challenge the ADLC’s jurisdiction to examine and potentially sanction the facts before it, nor to call into question the accuracy of those facts, their legal classification, or their imputability to the applicants. Instead, the transmission of those documents had been sought in order to show that the French infringement was ‘driven’ or ‘supplemented’ by a European element in respect of which both the Commission and the ADLC had wrongly refused to open proceedings. However, according to the ADLC, such a line of argument was inoperative, since it was only the objection notified by the prior inquiry units that defined the scope of the case which could be dealt with by the ADLC and, consequently, the scope of the rights of defence open to the parties implicated by that objection.
25 Thirdly, the ADLC pointed out, in paragraph 361 of its decision, that it was through their own conduct that the applicants found themselves in a situation which they claimed was harmful to their rights of defence. The first applicant is, in fact, one of the parties at issue in the case dealt with by the Commission. It decided, of its own volition, to enter into negotiations with the Commission, admitted to the objections which it was accused of by the Commission, and waived its right to bring an action against the Commission’s decision, even though it claimed, before the ADLC, that the infringement examined by the Commission was actually wider in scope than that punished in the latter’s decision, to the point that it encompassed or supplemented the practice at issue before the ADLC. In those circumstances, the ADLC found, in paragraph 362 of its decision, that it was somewhat paradoxical for the applicants to invoke the breach of their rights of defence before the ADLC in respect of another case, ‘when the party had itself foregone the exercise of those rights before the competent institution of the European Union at the time when such a discussion could have been effective’.
26 Moreover, in paragraphs 710 to 744 of its decision, the ADLC stated that the applicants were the second undertakings to have presented a leniency request to it relating to the practices at issue and could, therefore enjoy a partial exoneration from a fine. They had produced evidence which contributed to establishing the existence of the alleged practices and was of significant added value. Until, by its letter of 22 April 2010, the Commission informed the ADLC’s preparatory inquiry unit that its decision to initiate proceedings in no way concerned the objections notified to the applicants by the ADLC, the positions set out by the applicants regarding the connections between the two proceedings might have been considered as coming within the scope of the exercise of their rights of defence. However, the fact that the applicants continued, following the reception of the Commission’s letter, to claim that the preparatory inquiry unit of the ADLC was required to prove that there was no connection between the practices which it was examining and those examined by the Commission was not justifiable and ought to have led to the conclusion that the applicants had not fully respected the obligations arising from their duty of cooperation. In the light of those considerations, the ADLC fixed the rate of reduction of the fine incurred by the applicants at 25%, ‘namely a figure within the margin envisaged by the leniency notice … but less than the 30% which they claimed, at the least, to be entitled to’.
27 On 13 January 2012, the applicants brought an appeal against the ADLC’s decision of 8 December 2011 before the Cour d’appel de Paris (Court of Appeal, Paris).
Procedure and forms of order sought
28 By application lodged at the Registry of the General Court on 15 February 2012, the applicants brought the present action, in which they claim that the Court should:
– annul the Commission’s decision contained in the letter of 7 December 2011;
– order the Commission to grant them authorisation to rely on the requested documents in the proceedings before the Cour d’appel de Paris, before which they are challenging the ADLC’s decision;
– order the Commission to pay the costs;
– take any further action that the Court considers appropriate.
29 By a separate document lodged at the Court Registry on 30 April 2012, the Commission raised an objection to admissibility under Article 114 of the Rules of Procedure of the General Court. It claims that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
30 By document lodged at the Court Registry on 21 May 2012, Unilever PLC and Unilever NV applied for leave to intervene in support of the form of order sought by the Commission. The Commission and the applicants submitted their observations on that application on 6 and 22 June 2012 respectively.
31 The applicants submitted their observations on the objection to admissibility on 11 July 2012.
Law
32 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Pursuant to Article 114(3) of the Rules of Procedure, unless the Court otherwise decides, the remainder of the proceedings are to be oral. Under Article 114(4) of the Rules of Procedure, the Court then decides on the application or reserves its decision for the final judgment.
33 In the present case, the Court considers that, since its examination of the documents in the case-file has provided it with sufficient information, there is no need to open the oral procedure.
The claim for annulment
34 The Commission submits that the claim for annulment of the letter of 7 December 2011 is devoid of purpose, in the light of the ADLC’s decision. Since the proceedings before the ADLC were concluded by that decision, any transmission of the documents at issue to the ADLC would no longer serve any purpose. The alleged breach of the applicants’ rights of defence in the proceedings before the ADLC, or the alleged breach by the latter of the principle of ne bis in idem, are no longer at issue.
35 It must be observed that, by that line of argument, the Commission essentially calls into question the applicants’ legal interest in obtaining the annulment of the decision contained, according to the applicants, in the letter of 7 December 2011.
36 In that respect, it must be recalled that an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42). Since, according to the Commission, any possible legal interest on the part of the applicants in obtaining the annulment of the decision allegedly contained in the letter of 7 December 2011 ceased to exist with the adoption, on 8 December 2011, of the ADLC’s decision concluding the proceedings before it, so that such an interest ceased to exist prior to the date on which the application was brought – in this instance on 15 February 2012 – it must therefore be concluded, in so far as the Commission’s argument, summarised in paragraph 34 above, proves to be well founded, that the action must be dismissed as inadmissible.
37 Before examining the latter issue, it must be noted that it is necessary to distinguish it from the issue of the existence of a challengeable act. It is necessary to recall, in that respect, that, according to settled case-law, it is not every letter sent by a European Union institution to its addressee in response to a request made by the latter that constitutes a decision for the purposes of the fourth paragraph of Article 263 TFEU and thereby enables the addressee to bring an action for annulment (order in Case C‑25/92 Miethke v Parliament [1993] ECR I‑473, paragraph 10, and order in Case T‑22/98 Scottish Soft Fruit Growers v Commission [1998] ECR II‑4219, paragraph 34).
38 Accordingly, in the present case, it does not necessarily follow from the mere fact that the letter of 7 December 2011 was sent by the Commission to the applicants, in response to a line of argument which they had set out in a letter previously sent to the Commission, that the former letter contained a decision, addressed to the applicants, against which they could bring an action for annulment. For that to be the case, it must be shown that the letter in question produces binding legal effects. According to the settled case-law of the Court of Justice, an action for annulment is available in the case of all measures adopted by the European Union institutions, whatever their nature or form, which are intended to have legal effects (see Case C‑443/97 Spain v Commission [2000] ECR I‑2415, paragraph 27 and the case-law cited).
39 However, as regards the Commission’s line of argument, summarised in paragraph 34 above, it is appropriate to examine, first, the issue of the existence, at the time the application was brought, of a legal interest on the part of the applicants in obtaining the annulment of the Commission’s letter of 7 December 2011, taking as a starting point the premise that the letter in question actually constitutes a measure against which an action for annulment may be brought, before dealing, if necessary, with the issue of whether that premise is correct.
40 In that respect, it must be pointed out that it follows from the case-law cited in paragraph 36 above that an applicant’s legal interest in bringing proceedings must be assessed in the light of the subject-matter of the action. In the present case, it is clear from the parties’ written pleadings that they have differing views on the subject-matter of the letter of 7 December 2011 and of the decision allegedly contained therein.
41 In particular, the applicants state in their application that the action for annulment is directed against ‘the [Commission’s] decision dated 7 December 2011 … by which the Defendant dismissed the Applicants’ request to transmit 15 documents … to the [ADLC], or allow the Applicants (who possess copies) to use them in proceedings before the ADLC (or subsequent proceedings before the Paris Court of Appeals)’.
42 The Commission, on the other hand, contends that the letter of 7 December 2011 clearly deals only with the request to transmit the documents at issue to the ADLC, and contests the remainder of the applicants’ claim as set out in the above paragraph. In those circumstances, it is necessary, before assessing the existence of a legal interest on the part of the applicants in the annulment of the letter of 7 December 2011, to define the exact subject-matter of that letter.
The subject-matter of the letter of 7 December 2011
43 It is clear from a reading of the applicants’ letter of 17 October 2011 to the Commission that they made a ‘[r]equest pursuant to Article 2 of Regulation No 1049/2001 for permission to use [the documents at issue] in proceedings before the [ADLC]’. It would seem, therefore, that, by that letter, the applicants sought permission to use those documents, of which they already possessed copies.
44 However, it must be pointed out that the wording of Article 2 of Regulation No 1049/2001, to which the applicants referred in their letter, does not apply to a request seeking to allow the interested party to use a document from an institution of the European Union which it already possesses. Within the meaning of Article 2(1), ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation’. Article 2(2) allows the institutions, ‘subject to the same principles, conditions and limits’, to grant access to documents to any natural or legal person not residing or not having its registered office in a Member State, while the remaining paragraphs of that article further define the documents which come within the scope of Regulation No 1049/2001.
45 Moreover, it follows from Article 10(1) of Regulation No 1049/2001 that the access to documents is carried out either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy. Article 10(2) provides that if a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation to grant access to documents by informing the applicant how to obtain the requested document. Lastly, under Article 10(3), ‘[d]ocuments shall be supplied in an existing version and format’.
46 It follows, therefore, from the provisions referred to above, that the purpose of a request for access to documents pursuant to Regulation No 1049/2001 is to obtain a copy, in any format, of the document concerned or, at least, the possibility to consult it on the spot. In other words, that regulation applies to a person seeking access to a document which he does not possess and whose content, assumedly, he is unaware of. By contrast, Regulation No 1049/2001 does not contain any provisions relating to the possible authorisation of a third party to disclose the content of a document from the institutions of which the third party already possesses the original or a copy.
47 The fact remains that if a third party who, like the applicants in the present case, possesses documents from the institutions of the European Union but has undertaken not to disclose those documents to others, requests and obtains access to those same documents pursuant to Regulation No 1049/2001, he would be able to disclose them without restriction, and his prior undertakings concerning such disclosure would be thereafter null and void. Regulation No 1049/2001 does not provide for the possibility of granting access to a document to a member of the public while requesting him not to disclose it to others. Such a possibility would be contrary to the spirit and logic of that regulation since, where the exceptions to the right of access laid down in Article 4 of that regulation are applicable, access to the document in question is simply refused.
48 In the light of the foregoing, it is obvious that, by the letter of 17 October 2011, the applicants intended to make an ordinary request for access to documents. Admittedly, they already possessed the documents referred to in their request and the purpose of the request was not, therefore, to allow them to discover the content of those documents but rather to free themselves from the undertaking they had given to the Commission not to disclose those documents to third parties. However, the reasons justifying the applicants’ decision to make such a request are irrelevant, since Regulation No 1049/2001 provides neither that the interested party must state reasons for request for access to documents nor that the reasons stated for such a request may play a role in the admission or rejection of that request.
49 Moreover, it follows from the Commission’s response to the applicants’ request, contained in its letter of 8 November 2011 (paragraph 18 above) that it understood that the applicants intended to make an ordinary request for access to the documents. It is from that perspective that the Commission analysed that request and rejected it on the basis that the exception to the right of access laid down in the Article 4(2), third indent, of Regulation No 1049/2001 was applicable to the documents concerned.
50 The purpose of the letter of 7 December 2011 was different. It follows from the very wording of that letter that the Commission thereby intended to respond to the applicants’ ‘General Observations’, set out in their letter of 17 October 2011, in order to call into question the Commission’s refusal, in its letter to the ADLC of 30 September 2001, to grant the latter’s request to transfer to it the documents at issue. Such observations were not relevant to the request for access to documents made by the applicants pursuant to Regulation No 1049/2001, and it is therefore logical that the Commission would have wanted to respond in a letter separate from its response to the applicants’ request for access to documents.
51 It follows from a reading of the letter of 7 December 2011 that it concerns only the observations of the applicants referred to in the above paragraph and, more generally, the question of a potential transmission of the documents at issue by the Commission to the ADLC. By contrast, it in no way concerns a request from the applicants seeking authorisation to use those documents in the proceedings before the ADLC or before the Cour d’appel de Paris.
52 Therefore, it is solely with regard to the subject-matter of the letter of 7 December 2011, as indicated in the above paragraph, that the issue of the applicants’ legal interest in obtaining the annulment of the decision allegedly contained therein must be examined. If the applicants considered that the Commission had erred in its interpretation of the purpose of their request on the basis of Article 2 of Regulation No 1049/2001, they could have raised that error, first in their confirmatory application, lodged pursuant to Article 8 of Regulation No 1049/2001, by letter of 28 November 2011, after the Commission’s rejection of their initial request, and subsequently, if necessary, in an action for annulment against a decision rejecting that confirmatory application. Furthermore, if the applicants considered that their letter of 17 October 2011 contained – besides their request for access to documents and the general observations which the letter of 7 December 2011 concerns – an additional request to which the Commission failed to respond, the appropriate means of redress would have been an action for failure to act, as provided for in Article 265 TFEU. However, those hypotheses are irrelevant to the assessment of the applicants’ legal interest in obtaining the annulment of the decision allegedly contained in the letter of 7 December 2011.
The applicants’ legal interest in bringing proceedings
53 It must be stated that the request to transmit the documents at issue to the ADLC was submitted by the Assistant Rapporteur General of the ADLC responsible for the file – via the letter of 12 September 2011 referred to in paragraph 11 above – following the applicants’ request to that effect of 14 September 2010, which was initially rejected by the ADLC’s preparatory inquiry unit but repeated by the applicants. It does not follow from the wording of the letter of 12 September 2011 that the Assistant Rapporteur General intended to call into question the findings of the preparatory inquiry unit which led it to refuse to act on the applicants’ initial demand. Rather, the Assistant Rapporteur General decided to transmit the applicants’ request to the Commission, given the applicants’ insistence that the documents at issue should be transmitted and with a view to completing the file made available to the college of the ADLC which was to decide the case
54 Moreover, it is clear from the information referred to in paragraphs 15 and 17 above that the applicants had the opportunity to explain to the college of the ADLC – both in writing and orally – why they took the view that the documents at issue should be added to the file of the case before the ADLC. At the same time, they also requested that the ADLC postpone its session, scheduled for 18 October 2011, and then, following the rejection of that first request, that the proceedings be stayed.
55 It follows, furthermore, from the findings in the ADLC’s decision summarised in paragraphs 23 to 26 above, that, at the time when it delivered its decision, the ADLC was aware of the reasons for which the applicants considered that the documents referred to in the letter of 30 September 2011 were relevant to the case pending before the ADLC and were, in their view, indispensable to the exercise of their rights of defence. It was also aware of the contents of the Commission’s letter of 23 November 2011, referred to in paragraph 19 above, which followed up the ‘General Observations’ made by the applicants in their letter of 17 October 2011. Indeed, it was the president of the ADLC, who chaired the session of 18 October 2011 and signed the decision of 8 December 2011, who had responded to the Commission’s letter of 23 November 2011 by his letter of 5 December 2011 (paragraph 20 above).
56 However, for the reasons set out in its decision and summarised in paragraphs 23 to 26 above – which are for the competent national court to review, if required – the ADLC found that it was not necessary to stay the proceedings until the documents in the file of the case before the Commission, and referred to in the letter of 30 September 2011, had been transmitted to it, but that it was entitled, even in the absence of those documents, to rule on the substance of the case before it.
57 In addition, it must be held that the reasons justifying the ADLC’s decision did not relate to the fact that the Commission had refused to transmit the documents at issue, requested in the Assistant Rapporteur General’s letter of 12 September 2011, especially since the Commission stated that it was ready to reconsider that refusal, under certain conditions. It is clear from paragraphs 23 to 25 above that the ADLC, in essence, considered that the transmission of the documents at issue was not necessary in order to guarantee the respect of the applicants’ rights of defence and that, moreover, those documents were in no way relevant to the analysis of the case before it.
58 In those circumstances, it must be held that the ADLC’s decision rendered the request sent to the Commission in the letter of 12 September 2011 devoid of purpose. It is clear from the wording used by the Assistant Rapporteur General in that letter that, although he did not share the applicants’ point of view as regards the relevance of the documents at issue to the case before the ADLC, he had decided to request the transmission of the documents at issue in order to supplement the file which would be submitted to the College of the ADLC. However the latter stated in its decision of 8 December 2011, in clear and specific terms, that it had no need of the documents at issue in order to rule on the case before it.
59 Accordingly, following the adoption of the ADLC’s decision of 8 December 2011, the request contained in the letter of 12 September 2011 and, consequently, the Commission’s response as indicated in the letter of 30 September 2011, became devoid of purpose. That is also true, for the same reasons, of the Commission’s letter of 23 November 2011 to the ADLC, and its letter of 7 December 2011 to the applicants. Even if the latter letter did contain a decision refusing to transmit the documents at issue to the ADLC, it cannot be considered that the applicants retained a legal interest in obtaining its annulment following the adoption of the ADLC’s decision. The latter decision brought an end to the proceedings before the ADLC, and there is no other procedural step before it in which those documents could be examined, in the event that the request for annulment was granted and those documents were transmitted by the Commission to the ADLC.
60 It follows from the foregoing that, at the time when the application was brought, the applicants had no legal interest in securing the annulment of the alleged decision, as sought by the claim for annulment set out in the application’s first head of claim. Consequently, in accordance with the case-law cited in paragraph 36 above, that head of claim must be declared inadmissible.
61 That finding is not called into question by the applicants’ arguments to the contrary. By those arguments, the applicants claim, first, that the relevant point in time for assessing the legality of an administrative decision is the date of its adoption and not the moment when it is examined by a court. They refer, in that respect, to Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7, according to which the legality of the contested measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted.
62 That argument cannot be accepted. The issue in the present case is not the legality of the measure called into question by the claim for annulment, but rather the applicants’ legal interest in bringing proceedings, which, in accordance with the case-law referred to in paragraph 36 above, must exist at the stage of lodging the action and continue until the proceedings are concluded.
63 Secondly, the applicants contest the argument that the letter of 7 December 2011 does not address the possibility of transmitting the documents at issue to the Cour d’appel de Paris. They claim that, even if the Commission did not formally address that issue in the letter, it must have been aware of the applicants’ interest in the use of those documents in the proceedings challenging the ADLC’s decision before the competent national court. They add that any other result would be manifestly unjust, as it would mean that the Commission could free itself from its duty of cooperation with the competition authorities of the Member States by delaying the transmission of documents requested by a national competition authority until it closes its proceedings. Lastly, they claim that they need the documents at issue in order to challenge effectively the ADLC’s decision before the Cour d’appel de Paris, and that the latter would also need those documents, in order to have all the information necessary to rule on the case before it.
64 Those arguments also lack conviction, as they in no way call into question the findings set out in paragraphs 43 to 51 above. On the contrary, the applicants themselves admit that the letter of 7 December 2011 does not ‘formally’ address the possibility of transmitting the documents at issue to the Cour d’appel de Paris. In that respect, it must be pointed out that not only does that letter lack any express reference to that possibility, but no reference, even implicit, to such a transmission can be gleaned from a reading of it.
65 In those circumstances, the applicants’ potential legal interest in having those documents at their disposal for the purposes of the proceedings before the Cour d’appel de Paris is irrelevant. As has been pointed out repeatedly, their interest in obtaining the annulment of the decision allegedly contained in the letter of 7 December 2011 must be assessed in the light of the subject-matter of that letter, which encompasses neither the transmission of the documents at issue, by the Commission, to the Cour d’appel de Paris, nor the possibility of authorising the applicants to use those documents before that court.
66 Moreover, it must be borne in mind that the Cour d’appel de Paris is called upon to review the decision of the ADLC, which itself ruled on the case before it without having those documents. As has already been noted, it will be for the Cour d’appel de Paris, if necessary, to rule, in that context, on the reasons justifying the ADLC’s decision not to stay proceedings until it had access to the documents at issue.
67 It cannot, admittedly, be ruled out that the Cour d’appel de Paris, in the context of its sovereign assessment of the requirements of the proceedings before it, may decide that it must have access to the documents referred to in the request for transmission of 12 September 2011, even though those documents were not available to the ADLC when it adopted its decision. However, in that event, it will be for the Cour d’appel de Paris to request the Commission, in accordance with the rules governing the proceedings before it, to transmit those documents. By contrast, and contrary to the view which appears to be taken by the applicants, the annulment of the decision allegedly contained in the letter of 7 December 2011 would not automatically lead to either the transmission of the documents at issue, by the Commission, to the Cour d’appel de Paris, or to an authorisation allowing the applicants to disclose those documents to that court.
68 In view of all the foregoing, it is necessary to reject as inadmissible the applicants’ first head of claim.
The second and fourth heads of claim
69 The Commission claims that the second and fourth heads of claim raised by the applicants are inadmissible. It points, in that context, to the case-law according to which it is not for the European Union Courts, in an action for annulment of a decision taken by an institution, to issue directions to that institution. Moreover, it points out that, in its view, the issue of the possible use in any subsequent legal proceedings of the documents at issue is a matter wholly without the scope of the alleged decision contained in the letter of 7 December 2011.
70 The applicants submit that they possess copies of the documents at issue, but that they are prevented from submitting them to the Cour d’appel de Paris because of their undertaking given to the Commission. As long as the Commission does not release them from that undertaking, it will be possible for the applicants to rely on the documents in the proceedings before the Cour d’appel de Paris only if the General Court annuls the Commission’s decision. Otherwise, they would be unable to exercise their rights of defence in the proceedings before the Cour d’appel de Paris.
71 As the Commission rightly points out, it is settled case-law that the European Union Courts are not entitled, when exercising judicial review of legality, to issue directions, regardless of the nature or the content of the contested measure (see Case C‑353/01 P Mattila v Council and Commission [2004] ECR I‑1073, paragraph 15 and the case-law cited; order of 20 June 2011 in Case T‑256/10 P Marcuccio v Commission, paragraph 66).
72 It follows that, in the present case, the applicants’ second head of claim, which specifically asks the Court to issue directions to the Commission, must be rejected as inadmissible.
73 The applicants’ fourth head of claim asks the General Court to take any measure which it deems appropriate, but the applicants do not explain the nature and the scope of the measures whose adoption they seek. It must be pointed out, in that respect, that under Article 44(1)(d) of the Rules of Procedure the application must contain the form of order sought by the applicant, which must be provided in a clear and accurate manner (judgment of 16 March 2009 in Case T‑156/08 P R v Commission, paragraph 29). That is clearly not the case with regard to this head of claim, which, consequently, must also be rejected as inadmissible.
74 Those findings are not called into question by the applicants’ arguments summarised in paragraph 70 above, which take into account neither the case-law cited in paragraph 71 above, nor the vague and imprecise character of the fourth head of claim. The applicants’ argument that, if the Court does not annul the Commission’s decision, they will be unable to exercise their rights of defence before the Cour d’appel de Paris is in fact designed to defend, not the admissibility of the second and fourth heads of claim, but the claim for annulment set out in the first head of claim. However, an analogous argument has been examined and rejected in that context and, for the same reasons as those set out in paragraphs 64 to 67 above, the present argument must also be rejected.
75 It follows from the foregoing that the second and fourth heads of claim, and consequently the action in its entirety, are inadmissible.
76 In those circumstances, there is no need to adjudicate on the application for leave to intervene submitted by Unilever PLC and Unilever NV.
Costs
77 Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed.
2. There is no need to adjudicate on the application for leave to intervene submitted by Unilever PLC and Unilever NV.
3. Henkel AG & Co. KGaA and Henkel France shall bear their own costs and pay the costs incurred by the European Commission.
Luxembourg, 7 March 2013.