Opinion of the Advocate General — ECLI:EU:C:1999:354
Date: 1999-07-06
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - successful
Origin: Belgium;Netherlands

Summary of the Judgment 
Commission — Public right of access to Commission documents — Decision 94/90 — 
Exceptions to the principle of access to documents — Protection of the public interest — 
Court proceedings — Scope — Cooperation between the Commission and national courts 
on the basis of Notice 93/C 39/05 on the application of the competition rules 
(Commission Decision 94/90; Commission Communication 93/C 39/05) 
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SUMMARY — JOINED CASES C-174/98 P AND C-189/98 P 
The obligation on the Commission to 
refuse access to documents which it holds, 
on the ground that the protection of the 
public interest, within the meaning of 
Decision 94/90 on public access to Com­
mission documents, may be undermined, 
depends, in the context of its cooperation 
with national courts with a view to the 
application by them of Articles 85 and 86 
of the Treaty (now Articles 81 EC and 82 
EC) — provided for by Communication 
93/C 39/05 — on the manner in which 
such cooperation works in practice. When 
the documents supplied by the Commission 
to national courts are documents which it 
already possessed or which, al though 
drafted with a view to particular proceed­
ings, merely refer to the earlier documents, 
or in which the Commission merely 
expresses an opinion of a general nature, 
independent of the data relating to the case 
pending before the national court, the 
Commission must assess in each individual 
case whether they fall within the exceptions 
listed in the code of conduct adopted by 
Decision 94/90. 
On the other hand, when the documents 
supplied by the Commission contain legal 
or economic analyses, drafted on the basis 
of data supplied by the national court, they 
must be subject to national procedural rules 
in the same way as any other expert report, 
in particular as regards disclosure. In the 
case of such documents, the Commission 
must ensure that their disclosure does not 
constitute an infringement of national law. 
In the event of doubt, it must consult the 
national court and refuse access only if that 
court objects to disclosure of the docu­
ments. 
It follows that, by interpreting Decision 
94/90 as meaning that the exception based 
on protection of the public interest in the 
context of court proceedings obliges the 
Commission to refuse access to documents 
which it drafted solely for the purposes of 
such proceedings, the Court of First 
Instance erred in law, with the result that 
the plea alleging infringement of that 
decision is well founded. 
(see paras 20, 24-25, 28, 30) 
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