Case T‑534/11
Schenker AG
v
European Commission
(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)
Summary — Judgment of the General Court (First Chamber), 7 October 2014
1.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal based on several exceptions — Lawfulness
(European Parliament and Council Regulation No 1049/2001, Art. 4)
2.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Protection of commercial interests — Duty to balance relevant interests
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), first and third indents)
3.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to grant partial access to data not covered by the exceptions — Application to documents falling within a category covered by a general presumption of refusal of access — Exclusion
(European Parliament and Council Regulation No 1049/2001, Art. 4(6))
4.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Protection of commercial interests
(Art. 101 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), first and third indents; Council Regulation No 1/2003, Arts 27(2) and 28; Commission Regulation No 773/2004, Arts 6, 8, 15 and 16)
5.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the objectives of inspection, investigation and audit activities — Protection of commercial interests — Overriding public interest justifying the disclosure of documents — Concept — Interest in being informed of the Commission’s action in the field of competition — Included — Limits — Interest capable of being satisfied by publishing a non-confidential version of its decision
(Art. 101 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), first and third indents; Council Regulation No 1/2003, Arts 7 and 30(1) and (2))
6.      Institutions of the European Union — 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 procedures for reviewing compliance with the competition rules — Communication to a person envisaging a compensation action for alleged breach of Article 101 TFEU — Obligation of the applicant to establish the need for access to the documents in question — Scope
(Art. 101 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2))
7.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to grant partial access to data not covered by the exceptions — Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (6))
8.      Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Period prescribed for responding to an application for access to documents — Extension — Conditions — Application for access to documents enjoying confidential treatment in the context of an administrative procedure on competition matters — Obligation of the institution concerned to respond to the application within a reasonable time — Criteria for assessment
(Arts 101 TFEU and 339 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(1) and (2); Council Regulation No 1/2003)
1.      See the text of the decision.
(see para. 39)
2.      See the text of the decision.
(see paras 44, 74, 75)
3.      In the context of a decision refusing access to documents, it is open to the institution concerned to base its decisions 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. In that regard, where a document is covered by a general presumption and there is no overriding public interest in its disclosure, that document falls outside the scope of the obligation to disclose its content, in full or in part.
(see paras 47, 108)
4.      Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents and Regulation No 1/2003 do not contain any 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. Consequently, for the purposes of interpreting the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001, it is necessary to acknowledge 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. That applies regardless of whether the application for access concerns a proceeding which has already been closed or a proceeding which is pending.
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. 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.
In those circumstances, 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.
Moreover, as regards information gathered by the Commission pursuant to its notices on immunity from fines and reduction of fines in cartel cases 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.
(see paras 50, 52, 53, 55-58, 83)
5.      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 that field. However, 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.
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. Moreover, 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.
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. 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.
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. Thus, the overriding public interest in disclosure 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.
(see paras 80-85, 115, 116)
6.      Whilst it is true that any person is entitled to claim compensation for loss caused to him by a breach of Article 101 TFEU, it is not necessary, in order to ensure effective protection of that right, 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.
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. 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.
(see paras 92, 94-96)
7.      Examination of the possibility of granting partial access to a document of the EU institutions must be carried out in the light of the principle of proportionality. In that regard, it follows from 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. 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.
(see paras 111-113)
8.      Regulation No 1049/2001 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, 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, it must adopt a decision in that connection which contains an adequate statement of reasons. Finally, before implementing its decision, the Commission must give the undertaking an opportunity to bring an action before the EU judicature with a view to preventing disclosure.
It should therefore 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 under Article 8(1) and (2) of Regulation No 1049/2001 for replying to confirmatory applications. The Commission must endeavour to complete those steps in the shortest time possible and, in any event, within a reasonable timeframe 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 and the technical and legal complexity of those requests.
(see paras 126, 128-130)