Judgment — ECLI:EU:T:2008:316
Date: 2008-09-09
Language of the case: English
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Provisions governing the Institutions;Concentrations between undertakings;Access to documents
Concepts: Concrete, individual examination of the documents;Relationship with specific rights of access;Protection of court proceedings and legal advice;Overriding public interest;Protection of the decision-making process
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: United Kingdom

Summary of the Judgment 1. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 (European Parliament and Council Regulation No 1049/2001, Art. 4) 2. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 (European Parliament and Council Regulation No 1049/2001, Art. 4(3), second para.) 3. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 (European Parliament and Council Regulation No 1049/2001) 4. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 (Art. 255 EC; European Parliament and Council Regulation No 1049/2001, Arts 2(1) and 4(3), second para.) 5. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 (European Parliament and Council Regulation No 1049/2001, Arts 2(1), 3 and 4(3), second para.) 6. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 (European Parliament and Council Regulation No 1049/2001, Art. 4(3)) 7. European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 1. The mere fact that a document referred to in a request for access under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents concerns an interest protected by an exception cannot of itself justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed, first, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of that regulation, whether there was no overriding public interest in disclosure. On the other hand, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. That examination therefore must be specific and be evident from the statement of reasons of the decision. That specific examination must, moreover, be carried out in respect of each document referred to in the request for access. It is clear from Regulation No 1049/2001 that all the exceptions mentioned in Article 4(1) to (3) are specified as being applicable ‘to a document’. A specific and individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess the possibility of granting the applicant partial access under Article 4(6) of that regulation. (see paras 33, 73-74) 2. In accordance with recital 11 to Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the Community institutions must be allowed to protect their internal consultations and deliberations where it is necessary in the public interest in order to safeguard their ability to carry out their tasks, in particular when they are exercising their administrative decision-making powers, as in the case of the control of concentrations. The report of a working group with a mandate to carry out a work of analysis, reflection and criticism designed to be submitted for discussion purposes to the Member of the Commission responsible for competition matters, in preparation for that latter’s decision to bring an appeal in a case which concerned a concentration or decision to propose possible improvements to the administrative procedure applying to concentrations or to other areas in the field of competition law, constitutes a document containing opinions for internal use as part of deliberations and preliminary consultations within the Commission for the purpose of the second subparagraph of Article 4(3) of Regulation No 1049/2001. Disclosure of such a report to the public would seriously undermine the right of that Member of the Commission to the frankly-expressed and complete views of its own services as to the steps to be taken in response to the case in question. Disclosure of that document would carry the risk not only that the possibly critical opinions of Commission officials might be made public, but also that the content of the report could be compared with the decisions ultimately taken on those points by the Member of the Commission responsible for competition matters or within the Commission and, accordingly, that that institution’s internal discussions would be disclosed. Furthermore, if that report were to be disclosed, it would mean that the authors of a report of such a kind would take that risk of disclosure into account in the future, to the point when they might be led to practise self-censorship and to cease putting forward any views that might involve the addressee of the report being exposed to risk. The result would be that the Commission could no longer benefit from the frankly-expressed and complete views required of its agents and officials and would be deprived of a constructive form of internal criticism, given free of all external constraints and pressures and designed to facilitate the taking of decisions as regards whether an appeal should be brought against a judgment of the Court of First Instance or the improvement of its administrative procedures relating to the control of concentrations or, more broadly, competition law. That risk of the decision-making process being seriously undermined, were such documents to be disclosed, is reasonably foreseeable and not purely hypothetical. If it were to be accepted that such reports should not be confidential as regards the public and having regard to the risk of their being disclosed, it appears probable that the Member of the Commission responsible for competition would be induced to cease making requests for the written, and potentially critical, views of his advisers on issues falling within his jurisdiction or that of the Commission. Merely to hold oral and informal discussions, which would not require the drawing up of a ‘document’ within the meaning of Article 3(a) of Regulation No 1049/2001, would cause significant damage to the effectiveness of the Commission’s internal decision-making process, especially in areas in which it is required to carry out complex legal, factual and economic assessments and to examine particularly large amounts of documents, as in the case of the control of concentrations. Since such a report is protected under the second subparagraph of Article 4(3) of Regulation No 1049/2001, the documents which enabled it to be produced and which comprise preparatory assessments or provisional conclusions for internal use also come within that exception. Likewise, the disclosure to the public of the notes to the Commissioner, the notes to the other services and the notes in reply from the services other than the legal service, exchanged within the Commission in order to allow the documents formalising the views adopted by the administration to be drawn up, is liable seriously to undermine the Commission’s decision-making process, whether this involves the proceedings relating to the concentration in question or future similar concentration proceedings, between the same parties, or which concern principles applied in the disputed proceedings, in so far as those documents do no more than record a point in the proceedings that has not yet been formalised in a definitive document. Those preparatory documents may indicate the opinions, the doubts or the changes of mind of the Commission services, which – at the end of the decision-making process in question – may no longer appear in the final versions of the decisions. It appears likely that such documents, if they were disclosed, could be used – even though they do not necessarily represent the Commission’s definitive position – to influence the position of its services, which are entitled to be kept free and independent from all external pressures, in the examination of similar cases involving the same sector of activities or the same economic concepts. (see paras 42, 48, 50-52, 54, 59, 95-96, 100) 3. The interest of the public in obtaining access to a document pursuant to the principle of transparency, which seeks to ensure greater participation of citizens in the decision-making process and to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system, does not carry the same weight in the case of a document drawn up in an administrative procedure intended to apply rules governing the control of concentrations or competition law in general, as in the case of a document relating to a procedure in which the Community institution acts in its capacity as legislator. (see para. 49) 4. Having regard to the general principle of access to documents laid down by Article 255 EC and recitals 1 and 2 to Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the overriding public interest in disclosure of the documents, which is capable of prevailing over the protection of confidentiality provided for in the second subparagraph of Article 4(3) of that regulation, must be objective and general in nature and must not be indistinguishable from individual or private interests, such as those relating to the pursuit of an action brought against the Community institutions, since such individual or private interests do not constitute an element which is relevant to the weighing up of interests provided for by that second subparagraph of Article 4(3). Under Article 2(1) of Regulation No 1049/2001, the beneficiaries of the right of access to the documents of the institutions comprise ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. That provision makes it clear that the purpose of the regulation is to guarantee access for everyone to public documents and not just access for the requesting party to documents concerning it. Consequently, the individual interest which a party may invoke when requesting access to documents of personal concern to it cannot generally be decisive for the purposes both of the assessment of the existence of an overriding public interest and of the weighing up of interests under the second subparagraph of Article 4(3) of that regulation. (see paras 65-66) 5. Article 2(1) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents gives a very wide right of access to the documents of the Commission, because that right is available to any citizen of the Union and any natural or legal person residing or having its registered office in a Member State, without any other conditions being imposed. It is also apparent from Article 2(3) of that regulation that the provisions relating to public access to the documents of the Commission apply to all documents held by that institution, that is to say, all documents drawn up or received by it and in its possession, in all areas of activity of the European Union. Furthermore, the second subparagraph of Article 4(3) of Regulation No 1049/2001 specifies expressly the circumstances in which access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned can be refused, even after the decision has been taken, by stipulating that in such a case disclosure of the document must seriously undermine the decision-making process of the institution concerned. That provision is of general application and is not dependent on the Commission’s areas of activity or the rules applying to the proceedings which relate to them. Consequently, the fact that an undertaking which is party to a concentration does not have the right of access to the internal documents in the administrative file by virtue of Article 17(3) of Regulation No 802/2004 implementing Regulation No 139/2004 on the control of concentrations between undertakings, does not mean that it can be ruled out that any person, whoever it may be, may have a right of access to those documents on the basis of the principles laid down in Regulation No 1049/2001. (see paras 87-89) 6. Consultation with the Advisory Committee consisting of representatives of the Member States forms part of the decision-making process internal to the Commission in the control of concentrations. Even though that committee is composed of representatives of the Member States, and is therefore separate from the Commission for that reason, the fact of being obliged to transmit internal documents to the Advisory Committee under Article 19 of Regulation No 4064/89 on the control of concentrations between undertakings, in order that that committee may reach a view in accordance with a procedure which requires its intervention permits the inference that the documents at issue are documents which are internal to the Commission for the purposes of the application of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. (see para. 111) 7. The expression ‘legal advice’, referred to in the second indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, must be understood as meaning that the protection of the public interest may preclude disclosure of the content of documents drawn up by the Commission’s legal service, not only in the course of legal proceedings, but also on any other ground. (see para. 123)