Order — ECLI:EU:C:2011:37
Date: 2011-01-31
Language of the case: French
Court formation: President of the Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal;Application for interim measures - unfounded
Origin: France

Summary of the Judgment 1. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Scope — Application to administrative files relating to merger control proceedings — Documents exchanged between the Commission and the notifying parties or third parties (Art. 15 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2); Council Regulations No 4064/89 and No 139/2004) 2. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the principle of access to documents — Refusal based on a number of exceptions — Lawfulness (European Parliament and Council Regulation No 1049/2001, Art. 4) 3. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Internal Commission documents relating to a merger control procedure — Application for access made during the legal procedures for a decision closing the relevant merger control procedure — Admissibility of the refusal (Art. 15 TFEU; European Parliament and Council Regulation 1049/2001, Art. 4(3)) 4. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal proceedings — Internal Commission documents relating to a merger control procedure — Application for access made by a party to the legal proceedings for a decision closing the relevant merger control procedure — Admissibility of the refusal (Art. 15 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2)) 1. Although Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is designed to confer on the public as wide a right of access as possible to documents of the institutions, that right of access is nevertheless subject, in the light of the regime of exceptions laid down in Article 4 thereof, to certain limits based on reasons of public or private interest. 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 supply explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article. It is, in principle, open to that institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. Such general presumptions are applicable to merger control proceedings because the legislation governing those procedures, in particular Regulations No 4064/89 and No 139/2004 on the control of concentrations between undertakings also lays down strict rules as regards the treatment of information obtained or established in those proceedings. It is true that the right to consult the administrative file in the context of merger control proceedings, pursuant to that legislation, and the right of access to documents, pursuant to Regulation No 1049/2001, are legally distinct, but the fact remains that they lead to a comparable situation from a functional point of view, since they provide for access to the file enabling the interested parties to obtain all the observations and documents submitted to the Commission. Accordingly, generalised access, on the basis of Regulation No 1049/2001, to the documents exchanged in such a procedure between the Commission and the notifying parties or third parties would jeopardise the balance which the European Union legislature sought to ensure in the merger regulation between the obligation on the undertakings concerned to send the Commission possibly sensitive commercial information to enable it to assess the compatibility of the proposed transaction with the common market, on the one hand, 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, on the other. If persons other than those entitled to have access to the file by the rules on merger control proceedings, or those who could be regarded as involved parties but have not used their right of access to the information or have been refused access, were able to obtain access to the documents relating to such a procedure on the basis of Regulation No 1049/2001, the system introduced by that legislation would be undermined. Such a general presumption justifying the refusal of access to those documents is necessary irrespective of whether the request for access concerns a control procedure which is already closed or a pending procedure. That general presumption does not, however, exclude the possibility of demonstrating that a given document 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. (see paras 111, 116, 118, 120-122, 124, 126) 2. See the text of the decision. (see paras 113, 114) 3. The exception protecting the decision-making procedure, laid down in Article 4(3) of Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents, justifies the refusal of access to internal Commission memoranda relating to a merger control procedure, such as legal notes and opinions. The institution concerned could, according to the result of the legal proceedings, be called upon to recommence its investigation activities with a view to the eventual adoption of a new decision on the merger in question, and therefore the obligation which is placed on that institution to disclose, during that procedure, those internal memoranda would seriously undermine the institution’s decision-making process. (see paras 127, 130) 4. See the text of the decision. (see para. 132)