Case T‑623/13
Unión de Almacenistas de Hierros de España
v
European Commission
(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning two national competition proceedings — Documents submitted to the Commission by a national competition authority within the framework of cooperation provided for by EU law — Refusal of access — Exception related to the protection of the purpose of inspections, investigations and audits — Exception related to the protection of the commercial interests of a third party — No obligation on the institution concerned to carry out a specific and individual examination of the content of the documents covered by the application for access when the investigation at issue is definitively closed — No need for a measure of organisation of procedure requesting production of the documents at issue — Failure to take account of the individual situation of the applicant)
Summary — Judgment of the General Court (Second Chamber), 12 May 2015
1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Scope — Application to documents sent to the Commission by a national competition authority in the context of an investigation concerning the application of Article 101 TFEU
(Art. 101 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3); Council Regulation No 1/2003, Art. 11(4))
2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the commercial interests of a given person — Scope — Application to documents arising from a procedure conducted by a national competition authority acting pursuant to Article 101 TFEU
(Art. 101 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent)
3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Protection of commercial interests — Refusal to grant access — Obligation to state reasons — Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(2))
4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Protection of commercial interests — Scope — Application to documents arising from a procedure conducted by a national competition authority acting pursuant to Article 101 TFEU — General presumption that disclosure of the said documents will undermine protection of the interests involved in such an investigation
(Art. 101 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), first and third indents; Council Regulation No 1/2003, thirty-second recital and Art. 11(4))
5. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Requirement that the institution should examine the documents specifically and individually — Possibility to base reasoning on general presumptions applying to certain categories of documents — Limits
(European Parliament and Council Regulation No 1049/2001, Art. 4(2))
6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Mandatory exceptions — Account taken of a specific interest of the applicant — Exclusion
(European Parliament and Council Regulation No 1049/2001, fourth and eleventh recitals, Arts 2(1), 4(2), 6(1), and 12(1))
7. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Power of the EU judicature to order production of documents in order to verify whether refusal justified — Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(2))
1. The fact that an investigation concerning the application of Article 101 TFEU is conducted by a public authority of a Member State and not an EU institution does not affect the inclusion of documents sent to the Commission by that authority on the basis of Article 11(4) of Regulation No 1/2003 within the scope of the third indent of Article 4(2) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents. It does not appear from the wording of that provision that the inspections, investigations and audits referred to are limited to those of the institutions of the European Union, unlike Article 4(3) of the regulation which seeks to protect the institution’s decision-making process. Since it is possible for the legitimate interests of the Member States to be protected on the basis of the substantive exceptions laid down in Article 4(1) to (3) of that regulation, those exceptions must be analysed as seeking to protect not only the activities of the EU but also a Member State’s won interests, such as the protection of inspection, investigation and audit activities pursued by the authorities of that Member State.
(see para. 44)
2. In a proceeding opened by a national competition authority under Article 101 TFEU, when determining whether one or more undertakings have engaged in collusive behaviour which may significantly affect competition, that authority gathers commercially sensitive information about the commercial strategies of the undertakings concerned, their sales figures, their market shares or their business relations, with the result that access to documents in such proceedings can undermine the protection of the commercial interests of those undertakings within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001.
(see paras 45, 46)
3. See the text of the decision.
(see para. 48)
4. There is a general presumption according to which the disclosure of documents sent under Article 11(4) of Regulation No 1/2003 in principle undermines both the protection of the commercial interests of the undertakings to which the information at issue relates, as well as the closely-linked protection of the purpose of investigations of the national competition authority concerned, within the meaning of the first and third indents of Article 4(2) of Regulation No 1049/2001.
Thus, Regulation No 1/2003 is designed, inter alia, to safeguard the confidentiality of information and the observance of the obligation of professional secrecy in proceedings under Article 101 TFEU, particularly in the context of the information arrangement established within the network of public authorities ensuring compliance with the EU competition rules. That objective is justified, in particular, by the fact that such proceedings involve potentially sensitive commercial information, as pointed out in recital 32 of Regulation No 1/2003. As far as concerns access to documents, Regulation No 1/2003 therefore pursues a different objective to that pursued by Regulation No 1049/2001, which is designed to facilitate as far as possible the exercise of the right of access to documents and to promote good administrative practice by guaranteeing the greatest possible transparency in the decision-making process of public authorities and the information on which they base their decisions.
Moreover, that presumption continues to apply after the definitive closure of the proceedings conducted by the national competition authority. In the first place, the proper working of the information exchange arrangement, established within the network of public authorities ensuring compliance with the EU competition rules, requires that the information thus exchanged remain confidential. In the second place, the limitation of the period during which a general presumption applies cannot, in this specific context, be justified by the right to compensation to which those harmed by an infringement of Article 101 TFEU are entitled. The documents at issue, namely the decision contemplated by the national competition authority and the summary of the case, the submission of which is provided for in Article 11(4) of Regulation No 1/2003, do not concern an investigation by the Commission, but an investigation carried out by a national competition authority. It is the national competition authority’s investigation file, rather than the documents at issue, that could, where appropriate, provide the necessary evidence on which to base a claim for compensation, even if the documents refer to such evidence.
(see paras 60-62, 64, 77-79, 82)
5. See the text of the decision.
(see para. 100)
6. See the text of the decision.
(see paras 86-90)
7. Judicial review of a decision to refuse access to documents pursuant to Regulation No 1049/2001, must refer to the reasoning on which the decision is based. Thus, if that reasoning consists in an assessment of the effects which disclosure of the document would have on certain rights and interests, review will be possible only in so far as the EU judicature is able to form its own view concerning the substantive content of the document. In such cases, the EU judicature must consult the document in camera.
On the other hand, it is not for the EU judicature itself to conduct a specific assessment of each of the requested documents in order to satisfy itself that access to these documents would undermine the interests invoked, where, under a general presumption, the institution may reply to a global application without conducting a specific and individual examination of each document to which access is sought, and the applicant has failed to show either that any of the said documents fell outside the scope of that presumption or that there was an overriding public interest in its disclosure under Article 4(2) of Regulation No 1049/2001.
(see paras 105-108)