CELEX: 62011TJ0534
Access to documents
Regulation (EC) No 1049/2001
Administrative file and final Commission decision concerning a cartel, non-confidential version of that decision
Refusal of access
Obligation to carry out a specific, individual examination
Exception relating to the protection of the commercial interests of a third party
Exception relating to protection of the purpose of investigations
Overriding public interest

Facts
On 9 November 2010, the European Commission adopted Decision C(2010) 7694 final (Case COMP/39258 — Airfreight) relating to a proceeding under Article 101 TFEU (‘the airfreight decision’). In that decision, adopted under Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (
OJ 2003 L 1, p. 1
), the Commission found that a number of undertakings had infringed Article 101(1) TFEU by participating in a worldwide cartel affecting airfreight services (‘the airfreight cartel’) within the European Economic Area (EEA) and imposed fines on those undertakings totalling EUR 799 445 000.
On 21 April 2011, the applicant, namely, the logistics services undertaking Schenker AG, sent to the Commission an application for access, principally, to the entire case-file relating to the proceedings which gave rise to the airfreight decision (‘the airfreight case-file’), in the alternative, to the full text of the airfreight decision and, in the further alternative, to the non-confidential version of that decision, under 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
). In its application, the applicant claimed that it had a particular interest in gaining access to those documents in so far as two of the addressees of the airfreight decision had brought an action against it before a Netherlands court for a declaration that they were not liable to pay damages to it for an infringement of competition law.
By letter of 25 May 2011, the Commission rejected that application.
On 15 June 2011, the applicant submitted, pursuant to Article 7(2) of Regulation (EC) No 1049/2001, a confirmatory application asking the Commission to reconsider its position (‘the confirmatory application’).
By letter of 3 August 2011 (‘the contested decision’), the Commission rejected the confirmatory application.
In the contested decision, first, the Commission defined the scope of the confirmatory application. The Commission stated that it had the same subject-matter as the initial application (third paragraph of Section 2 of the contested decision).
Next, the Commission examined separately, on the one hand, the applications for access to the airfreight case-file and to the full text of the airfreight decision and, on the other hand, the application for access to the non-confidential version of that decision (see the first and second indents of the fourth paragraph of Section 2 of the contested decision).
As regards the applications for access to, respectively, the airfreight case-file and the full text of the airfreight decision, the Commission stated, first, that under the provisions of Regulation No 1/2003 and those of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (
OJ 2004 L 123, p. 18
), it was prohibited from disclosing information collected in the context of an investigation under Article 101 TFEU or Article 102 TFEU (a ‘competition investigation’). The Commission considered that that prohibition could not be circumvented on the basis of Regulation No 1049/2001 and that its purpose was to protect the system for applying competition rules and the interest of the undertakings concerned in non-disclosure of information which they had provided to the Commission and confidential information. Moreover, the Commission considered that a general presumption of confidentiality was equally applicable to the ‘documents to which [the applicant] was trying to gain access’ (Section 3.1 of the contested decision).
Secondly, the Commission stated that the airfreight decision had been the subject of a number of actions for annulment still pending before the General Court, so the investigation that culminated in the adoption of that decision (the ‘airfreight investigation’) could not be considered definitively terminated. According to the Commission, it could not be ruled out that, in the context of court proceedings concerning the lawfulness of a Commission decision, the General Court might request some documents from the Commission’s case-file. The Commission stated that the disclosure of such documents could disrupt the court proceedings at issue. The Commission also considered that, depending on the outcome of the proceedings pending before the General Court, it could be forced to reopen the airfreight investigation. Consequently, the disclosure of the ‘requested documents’ would reduce its capacity to adopt a new decision free from external influences and would undermine the purpose of its investigation (first paragraph of Section 3.2 of the contested decision).
Moreover, the Commission considered that undertakings which have submitted information in the context of a competition investigation had a legitimate expectation that the information would not be disclosed, except in the context of the decision terminating the investigation, and with any business secrets and other confidential information removed. The Commission stated that the ‘documents covered by the [confirmatory application]’ consisted of ‘documents relating to applications for immunity and leniency’, documents collected during inspections, requests for information, responses to those requests, statements of objections, responses to those statements of objections and internal Commission documents. The Commission pointed out that to disclose such documents in spite of the confidentiality guarantees provided for in Regulations Nos 1/2003 and 773/2004 would render those guarantees meaningless and would induce undertakings concerned by subsequent investigations to reduce their level of cooperation to a minimum, which would prevent the Commission from applying competition rules effectively (second to sixth paragraphs of Section 3.2 of the contested decision).
The Commission concluded from the foregoing that ‘those documents’ were fully covered by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of the purpose of inspections, investigations and audits (seventh paragraph of Section 3.2 of the contested decision).
Thirdly, the Commission stated that the ‘documents requested’ contained commercially sensitive information the disclosure of which would undermine the protection of the commercial interests of the undertakings concerned, within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001. The Commission considered that it was not possible to specify more precisely the nature of that information without partially disclosing it and thus rendering ineffective the exception laid down in that provision (Section 3.3 of the contested decision).
Fourthly, the Commission stated that certain competition authorities in third countries had published decisions on the airfreight cartel, some of which had been annexed to the confirmatory application. However, the Commission concluded that, contrary to what the applicant had claimed in that application, this did not alter the need to protect the airfreight case-file and the full text of the airfreight decision (Section 3.4.1 of the contested decision).
Fifthly, the Commission considered that, contrary to what the applicant had claimed in that confirmatory application, on the one hand, it was unnecessary to carry out an individual analysis of each document to which access had been refused, since the case-law supported the presumption that they were all confidential and, on the other, the adoption of the airfreight decision did not entail the definitive termination of the airfreight investigation (Section 3.4.2 of the contested decision).
Sixthly, the Commission stated that the ‘documents concerned’ were fully covered by the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001 and that, therefore, it was not possible to grant partial access to those documents (Section 4 of the contested decision).
Seventhly, the Commission stated that, in accordance with the final phrase of Article 4(2) of Regulation No 1049/2001, the exceptions provided for in the preceding paragraph do not apply where there is an overriding public interest in disclosure. However, the Commission considered that the confirmatory application did not contain any arguments capable of demonstrating the existence of such an interest (Section 5 of the contested decision).
As regards the application for access to the non-confidential version of the airfreight decision, the Commission stated that the preparation of that version was underway. The Commission pointed out, on the one hand, that the preparation of a non-confidential version of a cartel decision under Article 101 TFEU takes a considerable amount of time and, on the other hand, that it was in the process of discussing with the undertakings concerned which passages of the airfreight decision should be excluded from the non-confidential version of that decision. Finally, the Commission stated that, since that version did not yet exist, the applicant’s application for access was devoid of purpose. However, it gave an undertaking to send such a version to the applicant as soon as it had been finalised (second indent of the fourth paragraph of Section 2 of the contested decision).
Procedure and forms of order sought
By application lodged at the Registry of the Court on 10 October 2011, the applicant brought the present action.
By documents lodged at the Registry of the Court on 13 and 16 January 2012, Koninklijke Luchtvaart Maatschappij NV, Martinair Holland NV, Société Air France SA, Cathay Pacific Airways Ltd, Air Canada, Lufthansa Cargo AG and Swiss International Air Lines AG applied for leave to intervene in the present case in support of the form of order sought by the Commission. By order of 24 April 2012, the President of the Sixth Chamber of the General Court granted them leave to intervene.
The composition of the Chambers of the General Court having been changed, the Judge-Rapporteur was assigned to the First Chamber, to which this case was consequently allocated.
On 16 January 2014, the General Court, by way of measures of organisation of procedure as provided for in Article 64 of its Rules of Procedure, put a number of written questions to the parties, which responded to those questions within the prescribed period.
Acting upon a report of the Judge-Rapporteur, the General Court (First Chamber) decided to open the oral procedure. The parties presented oral argument and answered the questions put to them by the General Court at the hearing on 21 March 2014.
The applicant claims that the Court should:
—
annul the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Koninklijke Luchtvaart Maatschappij, Martinair Holland, Société Air France, Air Canada, Lufthansa Cargo and Swiss International Air Lines claim that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Cathay Pacific Airways claims that the Court should dismiss the action.
Law
Preliminary observations on the content of the contested decision
First of all, it should be pointed out that it is apparent from paragraphs 2 and 6 above that the confirmatory application contains three applications for access to documents, of which the first, relating to the airfreight case-file, was the principal application, the second, relating to the full text of the airfreight decision, was submitted in the alternative and the third, relating to the non-confidential version of that decision, was submitted in the further alternative.
The Commission rejected the third application for a reason other than those given for the rejection of the first two applications. It did so in an introductory section of the contested decision, which, inter alia, defined the subject-matter of the confirmatory application (Section 2 of the contested decision).
In that introductory section, the Commission stated that the reasons for rejecting the first two applications for access referred to in paragraph 27 above would be given in the subsequent sections of the contested decision.
However, in those subsequent sections, namely, Sections 3 to 5 of the contested decision, the Commission neither examined nor made a separate mention of the first two applications for access referred to in paragraph 27 above. The reasons for the rejection set out by the Commission in the abovementioned sections should, therefore, be interpreted, as far as possible, as referring to both the application for access to the airfreight case-file and the application for access to the full text of the airfreight decision.
It should be noted, moreover, that, while the Commission clearly rejected those applications on the basis of the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, relating, respectively, to the protection of commercial interests and the protection of the purpose of investigations, it also made reference on two occasions to the protection of court proceedings and stated that those proceedings could be disrupted by the disclosure of documents such as those referred to in the applications for access submitted by the applicant (see seventh paragraph of Section 3.1 and first paragraph of Section 3.2 of the contested decision).
The applicant and some of the interveners therefore put forward in their written pleadings a number of arguments concerning whether or not the requested access could undermine the protection of court proceedings, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001. However, the applicant did not put forward any plea for the annulment of the contested decision alleging infringement of that provision and the Commission did not state before the General Court that the contested decision was, in part, based on that provision.
In that regard, it should be considered that, although the Commission mentioned the protection of court proceedings in the contested decision, it based its rejection of the applications for access to the airfreight case-file and to the full text of the airfreight decision only on the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, relating, respectively, to the protection of commercial interests and the protection of the purpose of investigations, and not on the exception provided for in the second indent of Article 4(2) of that regulation.
Indeed, in the seventh paragraph of Section 3.2, the fifth paragraph of Section 3.3, and Section 4 of the contested decision, the Commission formally concluded only that the documents requested were covered by the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001. Moreover, in the tenth paragraph of Section 5 of the contested decision, the Commission, having weighed the public interest in disclosure of the requested documents against the interests protected by the exceptions applied in the contested decision, pursuant to its obligation under the final phrase of Article 4(2) of that regulation, considered that the interests which should prevail were the protection of commercial interests and the protection of the purpose of investigations. Finally, it should be noted that, at the hearing, the Commission did not state that the contested decision was based on the second indent of Article 4(2) of Regulation No 1049/2001.
The pleas in law raised by the applicant in support of its action must be examined in the light of the foregoing observations.
Substance
Preliminary observations
In support of the action, the applicant raises, in essence, five pleas in law which can be divided into two groups.
In the first group of pleas, the applicant challenges the contested decision in so far as the Commission rejected its applications for access to the airfreight case-file and to the full text of the airfreight decision. That group of pleas comprises the first four pleas. The first plea alleges that the Commission did not carry out a specific, individual examination of the airfreight case-file. The second and third pleas allege infringement of the first and third indents of Article 4(2) of Regulation No 1049/2001, in so far as the Commission did not show how the disclosure of the airfreight case-file and the disclosure of the full text of the airfreight decision could undermine the protection of the commercial interests of a particular natural or legal person (second plea) or the protection of the purpose of its investigations (third plea). Finally, the fourth plea alleges infringement of the final phrase of Article 4(2) of Regulation No 1049/2001, due to the existence of an overriding public interest justifying the disclosure of those documents.
The second group comprises the fifth plea. That plea, which was raised in the alternative, alleges, in essence, infringement of Article 4(6) of Regulation No 1049/2001, in so far as the Commission did not grant the applicant partial access to the airfreight case-file and did not send it a non-confidential version of the airfreight decision.
It must be noted that an EU institution may take into account cumulatively a number of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 when assessing a request for access to documents held by it (see, to that effect, Case C‑404/10 P
Commission
v
Éditions Odile Jacob
[2012] ECR, paragraphs 113 and 114).
Therefore, as pointed out in paragraphs 27 to 35 above, the Commission considered, in this case, that the airfreight case-file and the full text of the airfreight decision were covered both by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of commercial interests, and by the exception laid down in the third indent of Article 4(2) of the same regulation, relating to the protection of the purpose of inspections, investigations and audits of the EU institutions.
The Commission did not find that the non-confidential version of the airfreight decision was covered by an exception to the right of access to the documents, but considered only that that version did not yet exist and that it would be sent to the applicant as soon as it was ready.
The first plea, alleging infringement of the obligation to carry out a specific, individual examination of the documents in the airfreight case-file
It should be recalled, at the outset, that Article 15(3) TFEU provides that any 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 Union’s institutions, bodies, offices and agencies subject to the principles and the conditions defined in accordance with the ordinary legislative procedure. Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions. It is also apparent from that regulation, in particular from Article 4 thereof, which lays down exceptions in that regard, that the right of access is nevertheless subject to certain limits based on reasons of public or private interest (Case C‑365/12 P
Commission
v
EnBW Energie Baden-Württemberg
[2014] ECR, paragraph 61).
In accordance with the exceptions relied on by the Commission in the contested decision, namely those set out in the first and third indents of Article 4(2) of Regulation No 1049/2001, unless there is an overriding public interest in disclosure, the institutions of the European Union are to refuse access to a document where its disclosure would undermine the protection of the commercial interests of a specific natural or legal person or the protection of the purpose of inspections, investigations and audits of those institutions.
It follows that the system of exceptions laid down in Article 4 of that regulation is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 63).
In the present case, it must be held that the airfreight case-file and the full text of the airfreight decision relate to an inspection, investigation and audit of the institutions of the European Union within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. The information in those documents was either collected or produced by the Commission in the context of an investigation under Article 101 TFEU, the purpose of which was to assemble sufficient information and evidence to punish specific practices contrary to that provision.
Furthermore, having regard to the objective of a proceeding under Article 101 TFEU, which consists of ascertaining whether one or more undertakings have engaged in collusive behaviour which may significantly affect competition, the Commission gathers, in the context of such a procedure, commercially sensitive information, about, in particular, the commercial strategies of the undertakings concerned, their sales figures, their market shares or their business relations, so that access to documents in such a proceeding can undermine the protection of the commercial interests of those undertakings. Accordingly, the exceptions relating to the protection of commercial interests and that of the purpose of inspections, investigations and audits of the institutions of the European Union are, in the present case, closely connected (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 79, and Case T‑380/08
Netherlands
v
Commission
[2013] ECR, paragraph 34).
It is true that, in order to justify refusal of access to a document, it is not sufficient, in principle, for that document to fall within an activity or an interest mentioned 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. However, it is open to the institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraphs 64 and 65, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 35).
It is necessary to examine whether, in so far as concerns proceedings under Article 101 TFEU, such a general presumption may arise from the provisions of Regulations Nos 1/2003 and 773/2004, which specifically govern the right of access to documents in the Commission’s files relating to such proceedings.
In that regard, it should be noted that Regulations Nos 1/2003 and 773/2004 pursue different objectives from those pursued by Regulation No 1049/2001, since they are designed to ensure that the rights of defence of the parties concerned are respected and complaints dealt with diligently, while at the same time ensuring compliance with the duty of professional secrecy in proceedings under Article 101 TFEU, and not to facilitate as far as possible the exercise of the right of access to documents or 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 (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 83, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 30).
Contrary to the argument of the applicant that, if there is a contradiction between Regulation No 1049/2001 and another rule of EU law, the provisions of that regulation would prevail, Regulations Nos 1049/2001 and 1/2003 do not contain a provision expressly giving one regulation primacy over the other. Accordingly, it is appropriate to ensure that each of those regulations is applied in a manner compatible with the other and which enables a coherent application of them (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 84, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 31).
While it is true that the right to consult the administrative file in the context of a proceeding under Article 101 TFEU and the right of access to documents of the institutions, pursuant to Regulation No 1049/2001, are legally distinct, the fact remains that they lead to a comparable situation from a functional point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain all the observations and documents submitted to the Commission by the undertakings concerned and by third parties (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 89, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 32).
Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004 lay down restrictive rules for the use of documents in the file relating to a proceeding under Article 101 TFEU, by confining access to the file to the ‘parties concerned’ and to ‘complainants’ whose complaints the Commission intends to reject, subject to the protection of the business secrets and other confidential information of undertakings and internal documents of the Commission and the competition authorities of the Member States, and provided that the documents made available are used only for the purposes of judicial or administrative proceedings for the application of Article 101 TFEU (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 86, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 38).
It follows that the parties to a proceeding under Article 101 TFEU do not enjoy unlimited right of access to the documents in the Commission’s file and that third parties, with the exception of complainants, do not, under such a proceeding, have any right of access to the documents in the Commission’s file (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 87).
Those considerations must be taken into account in interpreting the first and third indents of Article 4(2) of Regulation No 1049/2001. If persons other than those with a right of access under Regulations Nos 1/2003 and 773/2004 or those who enjoy such a right in principle but have not used it or have been refused access, were able to obtain access to documents on the basis of Regulation No 1049/2001, the access system introduced by Regulations Nos 1/2003 and 773/2004 would be undermined (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 88, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 40).
In those circumstances, it should be held that generalised access, on the basis of Regulation No 1049/2001, to the documents exchanged in the context of a proceeding under Article 101 TFEU between the Commission and the parties involved in that proceeding or third parties would jeopardise the balance which the EU legislature sought to ensure in Regulations Nos 1/2003 and 773/2004, between the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 90, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 39).
Moreover, it must be held, as regards information gathered by the Commission pursuant to its notices on immunity from fines and reduction of fines in cartel cases (respectively,
OJ 2002 C 45, p. 3
, and
OJ 2006 C 298, p. 17
) in proceedings under Article 101 TFEU, that the disclosure of that information could dissuade potential leniency applicants from making statements under those notices. Indeed they could find themselves in a less favourable position than that of other undertakings which participated in the cartel and which did not cooperate with the investigation or which cooperated to a lesser extent (
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 41).
Consequently, for the purposes of interpretation of the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001, it is necessary to acknowledge, contrary to what the applicant claims, the existence of a general presumption that the disclosure of documents gathered by the Commission in the context of a proceeding under Article 101 TFEU undermines, in principle, both the protection of the purpose of inspections, investigations and audits of the institutions of the European Union and the protection of the commercial interests of the undertakings involved in such a procedure (see, to that effect,
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 92, and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 42; see, by analogy,
Commission
v
Éditions Odile Jacob
, cited in paragraph 39 above, paragraph 123).
Having regard to the nature of the interests protected in the context of a proceeding under Article 101 TFEU, the conclusion reached in the preceding paragraph of this judgment applies regardless of whether the application for access concerns a proceeding which has already been closed or a proceeding which is pending. The publication of sensitive information concerning the economic activities of the undertakings involved is likely to harm their commercial interests, regardless of whether a proceeding under Article 101 TFEU is pending. Furthermore, the prospect of such publication after that proceeding is closed runs the risk of adversely affecting the willingness of undertakings to cooperate when such a procedure is pending (
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 43; see, by analogy,
Commission
v
Éditions Odile Jacob
, cited in paragraph 39 above, paragraph 124).
It must, in addition, be pointed out that, under Article 4(7) of Regulation No 1049/2001, the exceptions relating to commercial interests or to sensitive documents may apply for a period of 30 years and may, if necessary, continue to apply after this period (
Commission
v
Éditions Odile Jacob
, cited in paragraph 39 above, paragraph 125).
Finally, the general presumption referred to above does not exclude the possibility of demonstrating that a given document the disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001 (
Commission
v
Éditions Odile Jacob
, cited in paragraph 39 above, paragraph 126;
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 100; and
Netherlands
v
Commission
, cited in paragraph 46 above, paragraph 45).
In the light of the foregoing, it must be found that, contrary to what is argued, in essence, by the applicant, the Commission was not required to carry out a specific, individual examination of the documents in the airfreight case-file.
The first plea in law must therefore be rejected.
The second plea in law, alleging infringement of the first indent of Article 4(2) of Regulation No 1049/2001, in so far as the Commission considered that the airfreight case-file and the full text of the airfreight decision were covered by the exception to the right of access to documents relating to the protection of the commercial interests of a particular natural or legal person.
The applicant claims that the Commission has not shown how the disclosure of the airfreight case-file and of the full text of the airfreight decision would harm the commercial interests of a particular natural or legal person. The applicant points out that the airfreight decision relates to the period between December 1999 and February 2006. According to the applicant, the commercial information therein is no longer current or subject to protection. In the Commission notice on the rules for access to the Commission file in cases pursuant to Articles [101 TFEU] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (
OJ 2005 C 325, p. 7
), the Commission itself stated that, as a general rule, information which is more than five years old is no longer confidential.
The Commission, supported by the interveners, contests the applicant’s line of argument.
It must first be noted that, in the light of what is set out in paragraph 57 above, the Commission was entitled to presume that the disclosure of the airfreight case-file and of the confidential version of the airfreight decision could harm the commercial interests of the undertakings involved in the airfreight investigation. Therefore, contrary to what is claimed, in essence, by the applicant, the Commission was not required to give specific reasons in that regard.
Next, it must be noted that, as is clear from the very wording of Article 4(7) of Regulation No 1049/2001 and is emphasised in the case-law (see paragraph 59 above), the exceptions set out in that provision may apply for a period of 30 years, or even longer if necessary, in the case, inter alia, of the exception relating to the protection of commercial interests.
In the present case, the applicant itself acknowledges that the airfreight decision relates to the period between December 1999 and February 2006, which is less than 30 years before the adoption of the contested decision.
The present plea must therefore be rejected.
The third plea, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, in so far as the Commission considered that the airfreight case-file and the full text of the airfreight decision were covered by the exception to the right of access to documents relating to the protection of the purpose of investigations
The applicant claims that the airfreight investigation was closed by the time the contested decision was adopted, despite the fact that there were a number of proceedings pending before the General Court concerning actions for annulment of the airfreight decision. Therefore, the Commission was incorrect to presume that the disclosure of the airfreight case-file and of the full text of the airfreight decision could undermine the protection of the purpose of its investigations.
As rightly pointed out by the Commission and the interveners, the applicant’s line of argument must be rejected. As stated in paragraph 57 above, the Commission was entitled to presume that the disclosure of the airfreight case-file and of the airfreight decision could undermine the protection of the purpose of its investigations.
Furthermore, it must be pointed out that, as stated by the applicant itself, a number of legal proceedings concerning the legality of the airfreight decision were pending before the General Court when the Commission adopted the contested decision, namely Cases T‑9/11
Air Canada
v
Commission
, T‑28/11
Koninklijke Luchtvaart Maatschappij
v
Commission
, T‑36/11
Japan Airlines
v
Commission
, T‑38/11
Cathay Pacific Airways
v
Commission
, T‑39/11
Cargolux Airlines
v
Commission
, T‑40/11
Lan Airlines and Lan Cargo
v
Commission
, T‑43/11
Singapore Airlines and Singapore Airlines Cargo PTE
v
Commission
, T‑46/11
Deutsche Lufthansa and Others
v
Commission
, T‑48/11
British Airways
v
Commission
, T‑56/11
SAS Cargo Group and Others
v
Commission
, T‑62/11
Air France KLM
v
Commission
, T‑63/11
Air France
v
Commission
and T‑67/11
Martinair Holland
v
Commission
, currently pending before the General Court.
It must therefore be held that the Commission could, according to the result of the legal proceedings referred to in the paragraph above, be called upon to recommence its investigation activities with a view to the eventual adoption of a new decision (see, to that effect,
Commission
v
Éditions Odile Jacob
, cited in paragraph 39 above, paragraph 130). Therefore, contrary to what is claimed by the applicant, the airfreight investigation could not be regarded as having been definitively closed by the time the contested decision was adopted.
It follows from the foregoing that this plea must be rejected.
The fourth plea, alleging infringement of the final phrase of Article 4(2) of Regulation No 1049/2001, in that an overriding public interest would justify the disclosure of the airfreight case-file and the disclosure of the full text of the airfreight decision
– Preliminary observations
It is apparent from the final phrase of Article 4(2) of Regulation No 1049/2001 that EU institutions must not refuse access to a document where its disclosure is justified by an overriding public interest, even if it could undermine, as in the present case, the protection of a particular natural or legal person’s commercial interests or the protection of the purpose of inspections, investigations and audits of the institutions of the European Union.
In that context, it is necessary to weigh the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (Case
T-439/08
Agapiou Joséphidès
v
Commission and EACEA
[2010] ECR II-230
, paragraph 136).
As stated in paragraph 16 above, the Commission considered, in the contested decision, that the confirmatory application did not contain any arguments capable of demonstrating the existence of an overriding public interest justifying the disclosure of the airfreight case-file or the confidential version of the airfreight decision to the applicant.
The applicant claims that that conclusion is incorrect. There are, in essence, four parts to that claim. The first part alleges that there is a public interest in the disclosure of documents relating to a competition investigation; the second, that it is necessary to disclose documents which facilitate actions for damages for infringements of competition law provisions (‘actions for damages’); the third, that the right of access to documents is a fundamental right and; the fourth, that the preceding arguments should be considered as a whole.
– The first part: the existence of an overriding public interest in the disclosure of documents relating to a competition investigation
The applicant claims that the public interest in the disclosure of documents relating to a cartel is, by nature, strong, since citizens have an interest in seeing that competition is not distorted. The applicant points out that the airfreight cartel affects nearly the whole of a major economic sector and has had a significant impact on the functioning of the internal market as well as some serious repercussions for a large number of market players and for the general public. According to the applicant, the existence of that public interest justifies the disclosure of the airfreight case-file and the disclosure of the airfreight decision.
By that argument, which the Commission disputes, the applicant relies, in essence, on the existence of an overriding public interest, within the meaning of the final phrase of Article 4(2) of Regulation No 1049/2001, in ascertaining the Commission’s reasons for adopting competition decisions or, at least, the ‘important’ decisions, which systematically outweighs, on the one hand, the commercial interests of the undertakings involved and, on the other hand, the interest in the protection of the Commission’s investigations.
In that regard, it must be held that the public must be in a position to ascertain the actions taken by the Commission in the field of competition in order to ensure, on the one hand, that it is possible to identify in a sufficiently precise manner conduct for which economic operators are liable to be penalised and, on the other hand, that the Commission’s decision-making practice is understood, since the latter is of crucial importance to the functioning of the internal market, which affects all European Union citizens, both as economic operators and as consumers.
There is, therefore, an overriding public interest in the public being able to ascertain certain essential elements of Commission action in the field of competition.
However, contrary to what is claimed, in essence, by the applicant, the existence of that public interest does not require the Commission to grant generalised access, on the basis of Regulation No 1049/2001, to all the information collected in the context of a proceeding under Article 101 TFEU.
Indeed, it should be noted that such generalised access would jeopardise the balance which the EU legislature sought to ensure, in Regulation No 1/2003, between the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission (see paragraph 55 above).
Moreover, it should be pointed out that it follows from recital 6 of the preamble to Regulation No 1049/2001 that the interest of the public in obtaining access to a document pursuant to the principle of transparency does not carry the same weight in the case of a document drawn up in an administrative procedure as in the case of a document relating to a procedure in which the EU institution acts in its capacity as legislator (
Agapiou Joséphidès
v
Commission and EACEA
, cited in paragraph 75 above, paragraph 139; see also, to that effect,
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 91).
In view of the foregoing, the public interest in being informed of the Commission’s activities in the field of competition does not in itself justify either the disclosure of the investigation case-file or the disclosure of the full text of the decision adopted, in so far as those documents are not necessary in order to understand the essential elements of the Commission’s activities, such as the outcome of the procedure and the reasons for its action. After all, the Commission can ensure that there is a sufficient understanding of that outcome and of those reasons by, in particular, publishing a non-confidential version of the decision at issue.
That conclusion is not invalidated by the applicant’s argument that, by publishing a non-confidential version of a cartel decision, the Commission is only complying with one particular obligation, which is different from that arising from Regulation No 1049/2001. After all, the answer to the question of whether publishing that decision serves the public interest does not depend on whether its publication is obligatory or not.
The conclusion referred to in paragraph 85 above is likewise not invalidated by the applicant’s argument that the non-confidential version of the airfreight decision had not yet been published a year after its adoption, and could be further postponed due to the dispute between the undertakings concerned and the Commission over the information to be regarded as confidential.
In that regard, it should be pointed out that the question of whether the Commission was obliged to provide, on request, a non-confidential version of the airfreight decision will be examined in the context of the fifth plea.
The first part of the fourth plea must therefore be rejected.
– The second part: the need to disclose documents facilitating actions for damages
The applicant states that it needs the airfreight case-file and the full text of the airfreight decision in order to preserve its chances of obtaining compensation for the damage it has sustained. It points out that the Commission, in its White paper of 2 April 2008 on damages actions for breach of the EC antitrust rules (COM(2008) 165) acknowledged that actions for damages were a means of restoring and promoting undistorted competition and of deterring the formation of new cartels. The applicant takes the view that the effectiveness of those actions lies in the fact that they not only protect individual interests, but also have a general preventive purpose which serves the public interest, as has been recognised in the case-law. According to the applicant, the public interest in maintaining effective competition, in view of the fact that access to documents is a fundamental right, would, in this case, outweigh the airfreight cartel members’ interest in their commercial information being protected. In any event, the interests of the cartel members cannot be considered legitimate in view of the unlawful nature of their actions.
The Commission, supported by the interveners, rejects the applicant’s line of argument.
It should be pointed out that any person is entitled to claim compensation for the loss caused to him by a breach of Article 101 TFEU. Such a right strengthens the working of the EU competition rules, thereby making a significant contribution to the maintenance of effective competition in the European Union (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 104 and the case-law cited).
Nevertheless, such general considerations are not, as such, capable of prevailing over the reasons justifying the refusal to disclose the documents in question (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 105).
In order to ensure effective protection of the right to compensation enjoyed by a claimant, there is no need for every document relating to a proceeding under Article 101 TFEU to be disclosed to that claimant on the ground that that party is intending to bring an action for damages, as it is highly unlikely that the action for damages will need to be based on all the evidence in the file relating to that proceeding (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 106).
It follows that any person seeking compensation for the loss caused by a breach of Article 101 TFEU must establish that it is necessary for that person to be granted access to documents in the Commission’s file, in order to enable the latter to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favour of the protection of those documents, taking into account all the relevant factors in the case (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 107).
In the absence of any such necessity, the interest in obtaining compensation for the loss suffered as a result of a breach of Article 101 TFEU cannot constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001 (
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 108).
In the present case, the applicant has failed to show in what way access to the documents in the airfreight case-file or to the full text of the airfreight decision was necessary on the basis that there was an overriding public interest in disclosure of the documents under Article 4(2) of Regulation No 1049/2001.
It follows from the foregoing considerations that the present part of the plea must be rejected.
– The third part: the fundamental nature of the right of access to documents
The applicant claims that the right of access to documents is a fundamental right the protection of which serves not only the individual interest of the rightholder. EU law is characterised by its objective intention of enforcing respect for fundamental rights, a requirement which is in the general public interest and should be taken into account when applying Regulation No 1049/2001.
By that argument, the applicant claims, in fact, that any application for access to documents, as the expression of a fundamental right to transparency, involves an overriding public interest within the meaning of the final phrase of Article 4(2) of Regulation No 1049/2001. If that were the case, it would be impossible to apply the exceptions provided for in Article 4(2) of Regulation No 1049/2001, which would be rendered meaningless.
This part of the plea must therefore be rejected as unfounded.
– The fourth part: the preceding parts should be considered as a whole
The applicant states that, while the three preceding parts show that there are a number of public interests which, taken individually, justify the disclosure of the airfreight case-file and of the full text of the airfreight decision, the justification is even stronger when those interests are considered as a whole.
In view of the answer to the three preceding parts, the present part must also be rejected.
In the light of all of the foregoing considerations, the fourth plea must be rejected.
The fifth plea, alleging infringement of Article 4(6) of Regulation No 1049/2001, in so far as the Commission should have granted the applicant partial access to the airfreight case-file and sent it a non-confidential version of the airfreight decision
The present plea can be divided into two parts, concerning, respectively, the Commission’s obligation, first, to grant the applicant partial access to the airfreight case-file and, secondly, to send it a non-confidential version of the airfreight decision.
The Commission, supported by Air Canada and Société Air France, submits that those two parts are unfounded.
– The first part: the Commission’s obligation to grant the applicant partial access to the airfreight case-file
The applicant claims that, even if the refusal of access to the entire airfreight case-file was justified, the Commission infringed Article 4(6) of Regulation No 1049/2001 by refusing to grant it partial access to that case-file.
In that regard, it need simply be noted that the documents in the airfreight case-file were covered by the general presumption referred to in paragraph 57 above, and that there was no overriding public interest in their disclosure. In those circumstances, those documents fall outside the scope of the obligation to disclose their content, in full or in part, in accordance with the case-law of the Court of Justice (see, to that effect,
Commission
v
EnBW Energie Baden-Württemberg
, cited in paragraph 42 above, paragraph 134).
Consequently, this part of the plea must be rejected.
– The second part: the Commission’s obligation to send the applicant a non-confidential version of the airfreight decision
The applicant claims that, even if the Commission was entitled to reject its application for access to the full text of the airfreight decision, it should have granted its application for access to a non-confidential version of that decision; the Commission disputes that.
In that regard, it should 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 referred to in that article, the remaining parts of the document are to be released. According to the case-law of the Court of Justice, examination of partial access to a document of the EU institutions must be carried out in the light of the principle of proportionality (see, to that effect, Case
C-353/99 P
Council
v
Hautala
[2001] ECR I-9565
, paragraphs 27 and 28).
It is clear from the wording itself of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to documents requested and to confine any refusal to information covered by the exceptions referred to in that provision. The institution must grant partial access if the aim pursued by that institution in refusing access to a document may be achieved where all that is required of the institution is to blank out the passages which might harm the public interest to be protected (Case
T-264/04
WWF European Policy Programme
v
Council
[2007] ECR II-911
, paragraph 50; see also, to that effect,
Council
v
Hautala
, cited in paragraph 111 above, paragraph 29).
It follows from a combined reading of Article 4(6) of Regulation No 1049/2001 and the final phrase of Article 4(2) of that regulation that, where the overriding public interest referred to in that provision justifies the disclosure of part of a document, the EU institution which received the application for access must grant access to that part.
As is apparent from paragraphs 80 and 81 above, it must be acknowledged that there is an overriding public interest in the public being able to ascertain certain essential elements of Commission action in the field of competition, which requires the disclosure of information making it possible to understand, inter alia, the outcome of the procedure and the reasons for the Commission’s actions.
In order to identify the information necessary in that connection, it must be considered that, under Article 30(1) and (2) of Regulation No 1/2003, the Commission, while having regard to the legitimate interest of undertakings in the protection of their business secrets, is required to publish the decisions which it takes pursuant to Article 7 of that regulation, stating the names of the parties and the main content of the decision, including any penalties imposed. In view of the need for a coherent application of Regulations Nos 1049/2001 and 1/2003 (see paragraph 50 above), the Commission could not refuse, pursuant to Regulation No 1049/2001, to disclose a document which it was, in any event, required to publish under Regulation No 1/2003.
Therefore, the overriding public interest in disclosure referred to in paragraph 114 above is not served by the mere publication of a press release regarding the adoption of the decision at issue, even if, as in the present case, that press release gives a brief description of the infringement found to exist, identifies the undertakings considered as being responsible for that infringement and states the amount of the fine imposed on each of them, in so far as such a press release does not reproduce the main content of the decisions adopted pursuant to Article 7 of Regulation No 1/2003. That overriding public interest requires the publication of a non-confidential version of those decisions.
The Commission, therefore, should have sent a non-confidential version of the airfreight decision to the applicant following the application made by the latter, thus granting partial access to that decision, as provided for in Article 4(6) of Regulation No 1049/2001.
As stated in paragraph 17 above, the Commission examined the application for access to the non-confidential version of the airfreight decision in the second indent of Section 2 of the contested decision. The Commission stated as follows:
‘As regards your alternative application, I must inform you that a non-confidential version of the [airfreight decision] has not yet been drawn up. The Commission services are in the process of preparing that non-confidential version and discussions are underway with the parties concerned in order to determine which passages should not be published. As you are aware, producing a non-confidential version of a cartel decision is a lengthy process. Given that a non-confidential version does not currently exist, your application under Regulation No 1049/2001 is devoid of purpose. However, we will send you a copy of the non-confidential version as soon as it is completed.’
The applicant claims that that passage of the contested decision must be interpreted literally and that, therefore, it means that the Commission rejected its application for access to the non-confidential version of the airfreight decision for the sole reason that that version did not exist.
As the applicant states, if such a ground for rejection were accepted, the Commission could systematically refuse to grant partial access to any document containing confidential information. Granting partial access requires, in practice, preparation of a non-confidential version of the document requested and, therefore, the Commission could merely state, upon each request, that no such version exists.
Admittedly, the Commission gave an undertaking to send a copy of the non-confidential version of the airfreight decision to the applicant as soon as it was completed. Therefore, in the contested decision, the Commission did not actually reject the application for access to a non-confidential version on the ground that that version did not exist, but on the ground that access to that version could not be granted until a later, unspecified date.
The Commission submits that it could not send the applicant a non-confidential version of the airfreight decision on the date on which the contested decision was adopted, in so far as it was necessary, first, to discuss with the undertakings affected by the airfreight decision the information which had to be deleted from the confidential version of that decision.
In that regard, Article 8(1) of Regulation No 1049/2001 provides:
‘A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles [263 TFEU] and [228 TFEU], respectively.’
Article 8(2) of Regulation No 1049/2001 provides:
‘In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.’
The time-limit laid down in Article 8(1) of Regulation No 1049/2001 is mandatory and cannot be extended save in the circumstances provided for in Article 8(2) of that regulation, without depriving that article of all practical effect, since the applicant could not know precisely the date from which he could bring the action or complaint provided for in Article 8(3) of that regulation (see Joined Cases
T-494/08 to T-500/08 and T-509/08
Ryanair
v
Commission
[2010] ECR II-5723
, paragraph 39 and the case-law cited).
It should be noted therefore that Regulation No 1049/2001, as interpreted by the case-law, does not make any provision for the Commission to state, in response to a confirmatory application, that access to a requested document will be granted at a later, unspecified date.
However, the European Union judicature has held that certain competition provisions requiring either that undertakings involved in an enquiry have access to the Commission case-file, or that the Commission immediately send the information in its possession to the competition authorities of the Member States must be interpreted in the light of the general principle of the right of undertakings to the protection of their business secrets, a principle which finds expression in Article 339 TFEU (see, to that effect, Case
53/85
AKZO Chemie and AKZO Chemie UK
v
Commission
[1986] ECR 1965
, paragraph 28, and Case
C-36/92 P
SEP
v
Commission
[1994] ECR I-1911
, paragraph 36).
Therefore, as pointed out by the Commission and some interveners, it is clear from the case-law that, where an undertaking claims that a document concerning it contains business secrets or other confidential information, the Commission must not communicate that document without first having completed various steps. First, the Commission must give the undertaking in question an opportunity to state its views. Next, the Commission is required to adopt a decision in that connection which contains an adequate statement of reasons on which it is based and which must be notified to the undertaking concerned. Finally, having regard to the extremely serious damage which could result from improper communication of that document, the Commission must, before implementing its decision, give the undertaking an opportunity to bring an action before the Courts of the European Union with a view to having the assessments made reviewed by it and to preventing disclosure of the document in question (
AKZO Chemie and AKZO Chemie UK
v
Commission
, cited in paragraph 127 above, paragraph 29, and
SEP
v
Commission
, cited in paragraph 127 above, paragraphs 38 and 39; see also Case
C-450/06
Varec
[2008] ECR I-581
, paragraph 54).
On the basis of those observations, it should be acknowledged that producing a non-confidential version of a Commission competition decision can take a certain amount of time, which is incompatible with the time-limits provided for in Article 8(1) and (2) of Regulation No 1049/2001 to reply to confirmatory applications, so that it is possible duly to take into account the interests of the undertakings concerned which have specifically claimed that certain information is confidential.
However, having regard to the importance of the principle of transparency in the constitutional system of the European Union and to the obligation imposed in principle on the Commission, under Article 8(1) and (2) of Regulation No 1049/2001 and under its general duty of diligence, to handle confirmatory applications promptly, the Commission must endeavour to complete the steps referred to in paragraph 128 above in the shortest time possible and, in any event, within a reasonable time frame which must be established on the basis of the specific circumstances of each case. In that regard, it is necessary to take into consideration the relatively large number of requests for confidentiality submitted by the undertakings concerned and the technical and legal complexity of those requests.
In the present case, the Commission has provided, in response to the written questions of the General Court, detailed information concerning, first, the number of requests for confidentiality relating to the airfreight decision submitted to it when the contested decision was adopted and, secondly, the workload involved in processing those applications.
It is apparent from that information, first, that, on 10 December 2010, the Commission requested that the undertakings affected by the airfreight decision notify the parts of that decision which, in their view, should be regarded as constituting business secrets or confidential information. Between 30 December 2010 and 12 April 2011, the Commission received requests for confidentiality, some of which were very long, from 14 of those undertakings.
Then, on 20 July 2011, the Commission sent to the undertakings mentioned in the preceding paragraph a draft of a non-confidential version of the airfreight decision, which no longer contained certain information which had been claimed to be confidential. When the contested decision was adopted, six of those undertakings continued to claim that a substantial part of that draft was confidential, and four others had not yet agreed to it being published. In fact, only four of the undertakings concerned had agreed to its publication.
In view of the number and significance of the requests for confidentiality submitted to the Commission, the period of 8 months and 25 days which passed between the adoption of the airfreight decision (9 November 2010) and that of the contested decision (3 August 2011) cannot be considered unreasonable.
Therefore, the Commission was not negligent in its handling of the confirmatory application as regards the parts of the airfreight decision which the undertakings affected by the decision continued to claim were confidential. As regards those parts of the airfreight decision, it is therefore necessary to hold that Article 4(6) of Regulation No 1049/2001 has not been infringed and, consequently, to reject this part of the plea.
However, neither the information provided by the Commission in response to the written questions of the General Court nor the information provided at the hearing shows that the undertakings affected by the airfreight decision had claimed that the decision in its entirety was confidential. Moreover, the information provided in the Commission’s response to the questions of the General Court which is relevant to the resolution of the present dispute, namely the information relating to the period before the adoption of the contested decision, does not, on its own, support the view that, when that decision was adopted, the existing requests for confidentiality concerned elements of such importance that a version of that decision from which those elements had been deleted would have been incomprehensible.
There was therefore nothing to prevent the Commission from communicating to the applicant the part of the non-confidential version of the airfreight decision which was not the subject-matter of any requests for confidentiality.
Consequently, the Commission should have sent the applicant, at its request, such a non-confidential version of the contested decision without waiting for all the requests for confidentiality submitted by the undertakings concerned to be finally settled.
On the one hand, such an approach is consistent with the spirit of Regulation No 1049/2001, Article 7(1) and Article 8(1) and (2) of which require the prompt handling of applications for access to documents, and Article 4(6) of which requires the EU institutions to grant access to the parts of documents which are not covered by an exception laid down in that article.
On the other hand, if the Commission were permitted not to release the parts of decisions under Article 101 TFEU whose confidentiality is not in doubt until either all the undertakings affected by those decisions have agreed to their publication, or all the steps referred to in paragraph 128 above have been completed, those undertakings would have an incentive to raise and maintain objections in order not only to protect their legitimate requests for confidentiality, but also to delay publication with a view to making it difficult for undertakings or consumers claiming to have been adversely affected by their actions to bring actions for damages before the national courts.
Therefore, it must be concluded that the Commission has infringed Article 4(6) of Regulation No 1049/2001 by not sending to the applicant a non-confidential version of the airfreight decision from which the information still claimed to be confidential by the undertakings concerned had been deleted.
Therefore, this part of the plea must be upheld as concerns that information and, consequently, the contested decision must be partially annulled.
The present plea must be rejected and the appeal dismissed as to the remainder.
Costs
Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the General Court may order that the costs be shared or that each party bear its own costs.
In this case, although the applicant and the Commission have each succeeded on some and failed on other heads, the action has for the most part been dismissed. Therefore, the applicant must be ordered to bear, in addition to its own costs, half of the costs incurred by the Commission.
Under the third subparagraph of Article 87(4) of the Rules of Procedure, the General Court may order an intervener other than the Member States and institutions which intervened in the proceedings, the States, other than the Member States, which are parties to the EEA Agreement, and the Surveillance Authority of the European Free Trade Association (EFTA) to bear its own costs.
In this case, the interveners must be ordered to bear their own costs.

On those grounds,
THE GENERAL COURT (First Chamber)
hereby:

1.
Annuls the Commission Decision of 3 August 2011 refusing to grant access to the administrative file of Decision C(2010) 7694 final (Case COMP/39258 — Airfreight), to the full text of that decision and to its non-confidential version, in that the Commission has refused access to the part of the non-confidential version of the decision at issue for which the undertakings concerned by it had not requested, or continued not to request, confidentiality;

2.
Dismisses the action as to the remainder;

3.
Orders Schenker AG to bear its own costs and half of the costs incurred by the European Commission;

4.
Orders Koninklijke Luchtvaart Maatschappij NV, Martinair Holland NV, Société Air France SA, Cathay Pacific Airways Ltd, Air Canada, Lufthansa Cargo AG and Swiss International Air Lines AG to bear their own costs.

Kanninen
Pelikánová
Buttigieg
Delivered in open court in Luxembourg on 7 October 2014.
[Signatures]
(
*1
)	Language of the case: German.