62008TJ0344_EN
Parties
Grounds
Operative part
Parties
In Case T‑344/08,
EnBW Energie Baden-Württemberg AG,
established in Karlsruhe (Germany), represented by A. Bach and A. Hahn, lawyers,
applicant,
supported by
Kingdom of Sweden,
represented by K. Petkovska, S. Johannesson and A. Falk, acting as Agents,
intervener,
v
European Commission,
represented initially by P. Costa de Oliveira, A. Antoniadis and O. Weber, and subsequently by A. Bouquet, P. Costa de Oliveira and A. Antoniadis, acting as Agents,
defendant,
supported by
Siemens AG,
established in Berlin (Germany) and Munich (Germany), represented by I. Brinker, C. Steinle and M. Holm‑Hadulla, lawyers,
and by
ABB Ltd,
established in Zurich (Switzerland), represented initially by J. Lawrence, Solicitor, and E. Whiteford, Barrister, and subsequently by J. Lawrence and D. Howe, Solicitor,
interveners,
APPLICATION for annulment of Commission Decision SG.E.3/MV/psi D (2008) 4931 of 16 June 2008 refusing access to the case‑file in Case COMP/F/38.899 — Gas insulated switchgear,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,
Registrar: K. Andová, Administrator,
having regard to the written procedure and further to the hearing on 29 November 2011,
gives the following
Judgment
Grounds
Background to the dispute
1. The applicant, EnBW Energie Baden-Württemberg AG, is an energy-distribution company. It considers itself to have been affected by a cartel operated by producers of gas insulated switchgear (‘GIS’), which was censured by Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) (‘the GIS decision’).
2. In the GIS decision, the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the EEA Agreement by taking part in a cartel on the GIS market, involving bid-rigging, price fixing and allocation of GIS projects and markets in Europe. As a consequence, the Commission imposed fines totalling EUR 750 million on the undertakings that had taken part in that cartel.
3. On 9 November 2007, the applicant sought from the Commission, on the basis of Article 2(1) of 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), full access to the documents relating to proceedings in Case COMP/F/38.899.
4. Following discussions between the applicant and the Commission, the applicant declared its application, as well as a confirmatory application of 10 December 2007, to be devoid of purpose and, on 13 December 2007, made a further application for access to documents relating to the case in question. By fax of 11 January 2008, the applicant clarified its request by excluding from it three categories of document, namely all documents dealing exclusively with the structure of the undertakings concerned, all documents concerning exclusively the issue of who were the correct addressees of the GIS decision and all documents that were drawn up wholly in Japanese.
5. On 30 January 2008, the Commission refused the applicant’s initial application, as amended on 11 January 2008.
6. On 20 February 2008, the applicant made a confirmatory application under Article 7(2) of Regulation No 1049/2001.
7. On 16 June 2008, the Commission rejected the applicant’s confirmatory application (‘the contested decision’).
8. In point 2 of the contested decision, the Commission classified the documents in Case COMP/F/38.899 in the following five categories:
(1) documents provided in connection with an immunity or leniency application, namely statements from the undertakings in question and all documents submitted by them in connection with the immunity or leniency application;
(2) requests for information and parties’ replies to those requests;
(3) documents obtained during inspections, namely documents seized at on-the-spot inspections at the premises of the undertakings concerned;
(4) statement of objections and parties’ replies thereto;
(5) internal documents:
(a) documents relating to the facts, that is, (i) background notes on the conclusions to be drawn from the evidence gathered, (ii) correspondence with other competition authorities and (iii) consultation of other Commission departments to have been involved in the case;
(b) procedural documents, that is, inspection warrants, inspection reports, lists of documents obtained in the course of inspections, documents concerning the notification of certain documents and file notes.
9. Then, in point 3 of the contested decision, the Commission explained that each of the categories fell within the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and that the documents in category 5(a) also fell within the exception in Article 4(3) of Regulation No 1049/2001.
10. In point 4 of the contested decision, the Commission went on to explain that the documents in categories 1 to 4 fell within the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001.
11. In point 5 of the contested decision, the Commission stated that it could see nothing that indicated there was an overriding public interest in granting access to the documents requested, as provided for in Article 4(2) of Regulation No 1049/2001.
12. Finally, in point 6 of the contested decision, the Commission gave as its reason for refusing to grant partial access to the case-file the fact that all the documents contained in the file were covered in their entirety by the exceptions listed in Regulation No 1049/2001.
Procedure and forms of order sought
13. By application lodged at the Registry of the Court on 25 August 2008, the applicant brought the present action.
14. By a separate document lodged on the same day, it requested that the action be decided under an expedited procedure, pursuant to the first subparagraph of Article 76a of the Court’s Rules of Procedure. The Commission filed its observations on that application on 11 September 2008. By decision of 1 October 2008, the Court (Second Chamber) dismissed the application that it adjudicate under an expedited procedure.
15. On 8 December 2008, the Kingdom of Sweden sought leave to intervene in support of the form of order sought by the applicant. On 9 and 12 December 2008 respectively, Siemens AG and ABB Ltd sought leave to intervene in support of the form of order sought by the Commission.
16. By orders of 13 March 2009, the President of the Second Chamber of the Court granted those applications.
17. On 27 May 2009, the Kingdom of Sweden and Siemens lodged their statements in intervention. ABB submitted its statement in intervention on 28 May 2009.
18. On 29 and 30 September 2009 respectively, the applicant and the Commission submitted their observations on the statements in intervention.
19. On 18 November 2009, following a measure of organisation of procedure adopted by the Court, the Commission produced an inventory of the case-file in Case COMP/F/38.899, indicating, for each document referenced there, to which of the categories mentioned at paragraph 8 above it belonged, while omitting information on the content of the various documents.
20. By order of 26 April 2010, the President of the Second Chamber of the Court, after hearing the parties, stayed proceedings in the present case pending the Court’s decision disposing of Case T‑399/07 Basell Polyolefine v Commission . Since that decision, which took the form of an order removing the case from the register, was adopted on 25 January 2011, proceedings re-commenced on that date.
21. Owing to a change in the composition of the chambers of the Court, the Judge‑Rapporteur was assigned to the Fourth Chamber to which, in consequence, the present case was assigned.
22. Responding to measures of organisation of procedure decided on by the Court, the applicant produced a copy of its confirmatory application of 20 February 2008 and the Commission replied to written questions.
23. The applicant, supported by the Kingdom of Sweden, claims that the Court should:
– annul the contested decision;
– in the alternative, annul the contested decision in so far as the Commission also refused to grant it partial access to the documents in the case-file;
– order the Commission to pay the costs.
24. The Commission, supported by Siemens and ABB, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
25. In support of its action, the applicant raises three pleas in law, alleging (i) infringement of the first and third indents of Article 4(2) and of the second subparagraph of Article 4(3) of Regulation No 1049/2001, (ii) infringement of Article 4(2), last part of the sentence, of Regulation No 1049/2001 and (iii) infringement of Article 4(6) of Regulation No 1049/2001. It also raises a fourth plea alleging, in essence, a manifest error of assessment with regard to the scope of the request for access to documents.
A – Admissibility of the complaint concerning the failure to undertake a concrete, individual examination of the documents
26. The Kingdom of Sweden has raised a complaint, not expressly raised by the applicant, taking issue with the Commission for not having carried out a concrete, individual examination of the documents in the case-file. The Commission considers that complaint to be inadmissible, since it falls outside the subject-matter of the action as defined by the applicant.
27. Under the fourth paragraph of Article 40 of the Statute of the Court of Justice, which applies to the General Court by virtue of Article 53 of that Statute, an application to intervene must be limited to supporting the form of order sought by one of the parties. Under Article 116(3) of the Rules of Procedure, the intervener must accept the case as it finds it at the time of its intervention. According to the case‑law, those provisions do not preclude an intervener from using arguments different from those used by the party it is supporting, provided that they do not alter the framework of the dispute and that the intervention is still intended to support the form of order sought by that party (Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1 at 17 and 18; Case C‑248/99 P France and Monsanto v Commission [2002] ECR I‑1, paragraph 56; Case T‑119/02 Royal Philips Electronics v Commission
[2003] ECR II‑1433, paragraphs 203 and 212).
28. In this case, it should be recalled that the obligation of an institution to undertake a concrete, individual assessment of the content of the documents covered by all applications based on Regulation No 1049/2001 is an approach to be adopted as a matter of principle, which applies whatever may be the field to which the documents requested relate, although that approach, to be adopted in principle, does not mean that such an examination is required in all circumstances (Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, ‘ VKI ’, paragraphs 74 and 75).
29. Accordingly, consideration of the complaint alleging breach of that obligation is a step to be taken prior to considering the pleas alleging infringement of the provisions of Article 4 of Regulation No 1049/2001. It follows that the Court must in any event ascertain, in the context of considering the pleas alleging infringement of those provisions, whether the Commission has either undertaken a concrete, individual examination of each of the documents requested or shown that the documents to which access was refused were manifestly covered in their entirety by an exception.
30. Moreover, it should be noted that, although it is the case that the complaint concerning the failure to undertake a concrete, individual examination has been raised by the Kingdom of Sweden in the first part of its statement in intervention w ithout a direct connection with the applicant’s plea, it has subsequently been reiterated in the context of the arguments dealing with the plea alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001.
31. Accordingly, the complaint concerning the failure to undertake a concrete, individual examination of the documents that were not disclosed, as raised by the Kingdom of Sweden, is admissible.
B – Substance
1. Fourth plea: manifest error of assessment with regard to the scope of the request for access to documents
32. It is apparent from the last sentence of point 2 of the contested decision that the Commission took the view that the documents falling within category 5(b) (see paragraph 8 above), were not covered by the applicant’s request for access, ‘since those documents [were] purely procedural in nature and/or reproduce[d] well-known facts’. In response to a question asked by the Court at the hearing, the Commission, firstly, stated that that finding was based on the fact that, in its confirmatory request, the applicant had not raised any objections with regard to the restrictive definition of the scope of the request for access, as set out in the reply to the initial request, and had not even mentioned internal documents. Secondly, it referred to a file note, dated 21 January 2008, concerning a telephone conversation on 9 January 2008 between an official in the Directorate-General for Competition (‘DG Competition’) and the applicant’s lawyers. The Commission submits that it is apparent from that note that the applicant’s lawyers indicated that their request for access concerned only documents having a connection with the infringement alleged against the participants in the GIS cartel and not, for example, internal documents. It was those two matters in conjunction which the Commission claims convinced it that documents falling within category 5(b) were not covered by the applicant’s request for access.
33. In the application, the applicant has objected to that exclusion, maintaining that it had nowhere stated that it was excluding those documents from its request and that, on the contrary, it had expressly identified, in its fax of 11 January 2008, the documents excluded from its request.
34. In that regard, in the first place, the Court notes that, in its initial request of 9 November 2007, the applicant sought access to all the documents on the case-file concerning the GIS cartel, without specifying any further details or restrictions. Subsequently, in a fax of 11 January 2008, the applicant restricted its request by excluding certain expressly listed groups of documents, namely all documents dealing exclusively with the structure of the undertakings concerned, all documents concerning exclusively the issue of who were the correct addressees of the GIS decision and all documents that were drawn up wholly in Japanese. That express, written restriction which post-dates the telephone conversation of 9 January 2008 thus does not bear out the Commission’s claim that the applicant informed it orally of an alleged limitation in the course of that conversation.
35. In the second place, the confirmatory request of 20 February 2008 has exactly the same scope as the initial request, as limited by the fax of 11 January 2008, in that it seeks disclosure of ‘all the documents in the … Commission’s possession concerning the proceedings … in Case COMP/F/38.899’, with the exception of the three categories of document excluded in the fax of 11 January 2008. Therefore, the Commission should have called into question, at the latest on reading the confirmatory request, the restrictive interpretation it was giving to the scope of the request for access.
36. In the third place, the reasons relied on by the Commission in order to justify, as to the substance, its restrictive interpretation — that is, the argument that the documents included in category 5(b) are purely procedural and reproduce only well-known facts — are not relevant in the context of Regulation No 1049/2001. The personal interest which an applicant may pursue with its request for access is a criterion wholly extraneous to Regulation No 1049/2001; it is therefore not for the Commission to make judgments or suppositions in that regard or to draw conclusions on that basis with regard to the treatment of the request.
37. The Court therefore finds well founded the applicant’s claim that the Commission’s restrictive interpretation of the scope of its request for access entails a manifest error of assessment. Accordingly, the contested decision must be annulled in so far as it refuses the applicant access to the documents falling within category 5(b).
2. First plea: infringement of Article 4(2), first and third indents, and of Article 4(3), second subparagraph, of Regulation No 1049/2001
38. There are three parts to this plea. The first alleges infringement of the third indent of Article 4(2) of Regulation No 1049/2001. The second alleges infringement of the first indent of Article 4(2) of Regulation No 1049/2001. The third alleges infringement of Article 4(3), second subparagraph, of Regulation No 1049/2001.
39. It should be recalled that, having been adopted on the basis of Article 255(2) EC, Regulation No 1049/2001 is designed, as recital 4 and Article 1 thereof indicate, to confer on the public as wide a right of access as possible to documents of the institutions. Recital 2 to the regulation recalls that that right of access is related to the democratic nature of the institutions. It is also apparent from the regulation, in particular from recital 11 and from Article 4 thereof, which lays down a regime of exceptions in that regard, that that right of access is nevertheless subject to certain limits based on reasons of public or private interest.
40. In order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity 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 (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco
v Council [2008] ECR I‑4723, paragraph 49, Case C‑139/07 P Commission
v Technische Glaswerke Ilmenau
[2010] ECR I‑5885, ‘ TGI ’, paragraph 53, and Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 72).
41. In accordance with settled case‑law, since they derogate from the principle of the widest possible public access to documents, the exceptions to the right of access, laid down in Article 4 of Regulation No 1049/2001, must be interpreted and applied strictly (Case C‑266/05 P Sison v Council
[2007] ECR I‑1233, paragraph 63; Case C‑64/05 P Sweden
v Commission [2007] ECR I‑11389, paragraph 66, and Sweden and Turco v Council, paragraph 40 above, paragraph 36).
42. The three parts of the applicant’s first plea should be considered in the light of those principles.
43. In that regard, given that, as is clear from paragraph 29 above, the complaint concerning the failure to undertake a concrete, individual examination of the documents relates to an overarching issue, relevant to the three parts of the first plea, it is appropriate to consider that complaint before ascertaining whether the Commission correctly applied the various exceptions relied on in the contested decision as a basis for refusing to disclose the documents requested. Consideration must thus be given, first and foremost, to whether the conditions which must be fulfilled for the Commission to dispense with that concrete, individual examination were met in the present case.
a) Whether, in the present case, the conditions were met for an exception to the obligation to undertake a concrete, individual examination of the content of the documents requested
44. As a preliminary point, it should be noted that exceptions to the obligation to undertake a concrete, individual examination of the documents requested have been allowed by the case‑law in various situations.
45. Firstly, there are situations in which it is obvious, in the circumstances of the case in question, that access must be refused or, on the contrary, granted. This Court has held that such a situation could arise, for example, if certain documents (i) were manifestly covered in their entirety by an exception to the right of access or, conversely, (ii) were manifestly accessible in their entirety, or, finally, (iii) had already been the subject of a concrete, individual assessment by the Commission in similar circumstances ( VKI, paragraph 28 above, paragraph 75). An obvious situation of that kind has also been recognised by the Court of Justice, which has held that it is open to the institutions, for the purpose of explaining how access to the documents requested could undermine the interest protected by an exception laid down in Article 4(2) of Regulation No 1049/2001, to base their decisions on general presumptions which apply to certain categories of document, since similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature ( Sweden and Turco, paragraph 40 above, paragraph 50, TGI, paragraph 40 above, paragraphs 54 and 55, and Sweden and Other s v API and Commission, paragraph 40 above, paragraph 74). In that context, moreover, the expressions ‘category of documents’ and ‘documents of the same nature’ are understood in the broad sense and without regard to the content of the documents, as is apparent from TGI, paragraph 40 above, in which those expressions were used to encompass all the documents in a file relating to a State aid procedure before the Commission, and from Sweden and Others v API and Commission, paragraph 40 above, in which it was held that documents formed part of a single category merely because of the fact that they had been drawn up by the Commission in its capacity as a party in various actions which were pending on the date of adoption of the decision refusing access.
46. Secondly, a single justification may be applied to documents belonging to the same category, which will be the case, in particular, if they contain the same type of information. It is then for the Court to ascertain whether the documents within that category are manifestly covered in their entirety by the exception relied on. In contrast to the situations mentioned in the preceding paragraph, the criterion applied to all the documents in question thus concerns their content, since it is by reference to the information contained in the documents requested that the institution to which the request has been made must justify its refusal to disclose them, under the various exceptions to the right of access which are laid down in Article 4 of Regulation No 1049/2001.
47. Third, in exceptional cases and only where the administrative burden entailed by a concrete, individual examination of the documents would prove particularly heavy, thus exceeding the limits of what may reasonably be required, a derogation from that obligation to examine the documents may be permissible (see VKI, paragraph 28 above, paragraph 112 and the case‑law cited).
48. In the present case, in point 1 of the contested decision, headed ‘Preliminary remarks’, the Commission expressly relied on two of those situations: the first, mentioned in paragraph 45 above, in which it is obvious that access must be refused because certain documents are manifestly covered in their entirety by an exception and the second, mentioned in paragraph 46 above, in which the institution may indicate the reasons for refusing access by referring to groups of documents containing the same type of information.
49. The Court notes at the outset the abstract and general nature of that reference to the situations relied on by way of exception, which is made outside the actual examination of the request. In addition, the Commission does not indicate to which documents those two exceptions apply, so that the conclusion must be that it intends to apply them to all the documents requested. The Commission confirmed that interpretation, asserting, in the defence, that ‘all the document categories listed in the [contested] decision are manifestly covered in their entirety by the grounds for exception … in Article 4(2), first and third indents, and Article 4(3) of [Regulation No 1049/2001]’.
50. Moreover, the Commission maintained, in the defence, that the applicant had ‘failed to be sufficiently specific in its request, although Commission staff had drawn its attention to the size of the file and the amount of work entailed by its request’. In so far as that remark is to be understood as invoking the exception based on an exceptional work-load, as described in paragraph 47 above, it should be recalled that, according to settled case‑law, the reasons for a decision must appear in the actual body of the decision and that, save in exceptional circumstances, explanations given ex post facto by the Commission cannot be taken into account (Case T‑61/89 Dansk Pelsdyravlerforening
v Commission [1992] ECR II‑1931, paragraph 131; Case T‑295/94 Buchmann
v Commission
[1998] ECR II‑813, paragraph 171, and Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 95).
51. However, in the letter of 30 January 2008 rejecting the initial request, the failure to undertake a concrete, individual examination of the documents is justified not by the amount of work to which such an examination would give rise but solely by the fact that all the documents requested are said to be manifestly covered in their entirety by the exceptions relied on by the Commission. The contested decision itself contains no explanation in this regard. It was only in the defence that the Commission, for the first time, claimed that the limitation of the request agreed to by the applicant was insufficient in view of the amount of work generated by a concrete, individual examination. The latter argument therefore does not amount to a reason that was decisive in the adoption of the contested decision.
52. Accordingly, that argument must be rejected as ineffective.
53. As a first step, consideration must thus be given to whether the Commission has established to the required legal standard the existence of the exceptional circumstances on which it relied in the contested decision in order to dispense with a concrete, individual examination of the documents requested. Thereafter, it will also be necessary to examine, for the sake of completeness, the exception relating to workload, which the Commission raises in the defence.
The first exception relied on in the contested decision: it was obvious, on the basis of a general presumption, that access to the documents requested had to be refused
54. As has been recalled at paragraph 41 above, since they derogate from the principle of the widest possible public access to documents, the exceptions to the right of access, laid down in Article 4 of Regulation No 1049/2001, must be interpreted and applied strictly.
55. However, it has also been held that it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of document, since similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature ( Sweden and Turco, paragraph 40 above, paragraph 50, TGI, paragraph 40 above, paragraphs 54 and 55, and Sweden and Other s v API and Commission, paragraph 40 above, paragraph 74). In such a situation, it must be determined whether general considerations support a finding that the Commission was entitled to base its decision on the presumption that disclosure of the documents concerned would undermine the interests protected by Article 4 of Regulation No 1049/2001 and that, in so doing, it was not under an obligation to carry out a specific assessment of the content of each of those documents (see, to that effect, Sweden and Others v API and Commission, paragraph 40 above, paragraph 76).
56. In the present case, contrary to what was suggested by the Commission at the hearing, such a presumption cannot be founded on reasoning similar to that followed by the Court of Justice in TGI, paragraph 40 above. In that case, which concerned a request for access to a file in a State aid procedure, the Court of Justice held that a general presumption that all the documents requested were covered by an exception could arise from Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) and from the case‑law concerning the right to consult documents on the Commission’s administrative file, since that regulation does not provide any right of access to those documents for interested parties other than the Member State responsible for granting the aid. Indeed, if those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the file, the system for the review of State aid would be called into question. ( TGI, paragraph 40 above, paragraphs 55 to 58).
57. In that regard, first, attention should be drawn to the fact that, in the case culminating in the judgment in TGI, paragraph 40 above, in contrast to the circumstances in this case, the Commission had not yet, at the date of the decision refusing to grant access to the file, adopted a final decision closing the proceedings to which the file forming the subject-matter of the request for access related. Moreover, the reasoning of the Court of Justice in TGI, paragraph 40 above, uses precisely the argument that the provisions on access to documents which are specific to the procedure in question must not be by-passed by means of Regulation No 1049/2001. However, the document-access system specific to a particular procedure, whether in the matter of State aid or cartels, is applicable only throughout the procedure in question. Accordingly, the reasoning followed by the Court of Justice in TGI, paragraph 40 above, cannot be applied to a situation in which the institution has already adopted a final decision closing the file to which access is sought, as is the case here.
58. Second, in this case, if the case culminating in the judgment in TGI (paragraph 40 above) is taken by analogy, a general presumption that the documents in a file in competition proceedings are not to be disclosed ought to arise from Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), as amended, and from the case‑law concerning the right to consult the documents of the Commission’s administrative file.
59. It is true that, like Regulation No 659/1999 concerning aid, Regulation No 1/2003 does not confer a right on persons that are not parties to proceedings to have access to documents on the Commission’s administrative file in the context of proceedings concerning cartels. However, Article 27 of Regulation No 1/2003 provides for undertakings which are the subject of proceedings to have access to the file, in the more general context of safeguarding the rights of the defence. The access to the file which they are afforded in that framework cannot extend to the institution’s internal documents, to the business secrets of other undertakings or to other confidential information (Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission
[1999] ECR II‑931, paragraph 1015, Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others
v Commission [2007] ECR II‑947, paragraph 45).
60. The provisions of Regulation No 1/2003 concerning access to documents have been further developed in Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), which also provides for a right of access in favour of a complainant in the event of his complaint being rejected. In that regard, Article 8(2) and Article 15(4) of Regulation No 773/2004 provide that documents obtained by a complainant may only be used for the purposes of judicial or administrative proceedings for the application of Articles 81 EC and 82 EC.
61. It follows that, although undertakings that are the subject of cartel proceedings, as well as complainants upon whose complaint the Commission has not acted, have a right to consult certain documents on the Commission’s administrative file, that right is subject to certain restrictions which themselves give rise to a need for a case-by-case assessment. Therefore, even on the basis of the reasoning applied by the Court of Justice in TGI, paragraph 40 above, according to which, for the purpose of interpreting the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001, account must be taken of any restrictions on access to the file that may obtain in particular procedures, such as State aid and cartel procedures, the fact that such matters are taken into account does not give grounds for assuming that, if the Commission’s ability to proceed against cartels is not to be undermined, all the documents held in its files in that domain are automatically covered by one of the exceptions laid down in Article 4 of Regulation No 1049/2001.
62. The Commission was therefore not entitled to assume, without undertaking a specific analysis of each document, that all the documents requested were clearly covered by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001.
63. Consequently, the Commission could not rely on the first exception in order to dispense with a concrete, individual examination of the documents requested.
The second exception relied on in the contested decision: examination of documents by categories
64. As a preliminary point, it should be made clear that, as was stated at paragraph 46 above, a single justification may be applied to documents belonging to the same category, particularly if they contain the same type of information. It is, however, for the Court to ascertain whether the documents within that category are manifestly covered in their entirety by the exception relied on.
65. In the present case, as is clear from the passage in the contested decision cited at paragraph 48 above, the Commission relies on paragraph 73 of VKI, paragraph 28 above, to justify giving reasons by groups of documents. However, the Court made clear in that paragraph that it considered that a document-by-document assessment was in any event necessary in order to carry out an examination — mandatory pursuant to Article 4(6) of Regulation No 1049/2001 — of whether partial access to the documents requested should be granted ( VKI, paragraph 73). It is, therefore, only in the event that the documents falling within a category are manifestly covered in their entirety by an exception that the institution may dispense with an individual examination of those documents.
66. Furthermore, the document categories created by the institution in question must be defined on the basis of the information in the documents, a definition which will not necessarily coincide with the document types. For example, it is possible that the reply of an undertaking to the statement of objections will contain information whose disclosure must be refused under one of the exceptions laid down in Article 4(2) of Regulation No 1049/2001, whereas the reply of another undertaking, although it is the same type of document, will contain information which does not require such protection. It is thus particularly in a case in which documents falling within one category contain the same type of information that refusal to disclose a whole group of documents may be based on a single justification. In fact, in such circumstances, justifying non-disclosure by groups of documents facilitates or simplifies the Commission’s task when examining the request and providing reasons for its decision.
67. It follows that an examination by categories is lawful only if it plays a useful role in processing a request for access. The document categories must therefore be defined on the basis of criteria that enable the Commission to apply a single line of reasoning to all the documents within one category. In the present case, the documents falling within a single category were thus required to have common features that were relevant for the purpose of the decision on their possible disclosure. The reasoning applied to one category thus necessarily had to be different from the reasoning applied to other categories. Indeed, if it were possible to apply one and the same line of reasoning to two different categories, there would, in actual fact, be just one single category, for the purposes of examining the request for access. In the latter case, a division into categories would then be artificial and serve no purpose.
68. In the present case, first, the classification into categories of the documents requested, as carried out by the Commission (see paragraph 8 above), to a great extent, served no useful purpose as regards adoption of the contested decision. In particular, as explained in paragraphs 70 to 85 below, in relation to the exceptions based on the protection of the purpose of investigations and the protection of commercial interests, that classification neither facilitated nor simplified the Commission’s task as regards the examination of the request and the justification for its decision, since the categorisation was by document type, irrespective of the information in the documents concerned.
69. Second, as will be explained at paragraphs 86 to 91 below, with regard to the exception based on the protection of the Commission’s decision-making process, the documents in respect of which the Commission has relied on that exception were not manifestly covered in their entirety by that exception, contrary to the requirement described in paragraphs 64 and 65 above.
– The examination, in point 3 of the contested decision, of the exception based on the protection of the purpose of the investigation
70. Point 3 of the contested decision is divided into two parts. Point 3.1, entitled ‘Investigation in progress’, concerns the justification for refusing access based on the protection of the purpose of the ongoing investigation. In point 3.2, entitled ‘Protection, outside the actual investigation, of documents related to the investigation’, the Commission explains first of all that natural and legal persons who, voluntarily or because of an obligation, disclose information in connection with the application of Regulation No 1/2003 are reasonably entitled to expect that the Commission will not disclose the documents in issue and that those documents will be used only for the purposes of the competition proceedings, including the review carried out by the Courts of the European Union. It also refers to the provisions of Regulation No 1/2003 which exclude the disclosure of information, covered by the obligation of professional secrecy, which the Commission may have obtained whilst applying the regulation. If the Commission were to betray the trust of the undertakings concerned by releasing the documents requested, the readiness of those undertakings to cooperate with it would diminish, to the point where it would no longer be able properly to carry out its task of enforcing competition law. Finally, the Commission expressly states that the ‘foregoing reasoning applies to the five document types listed [in point 2 of the contested decision]’.
71. An analysis of the points of the contested decision dealing with the various document categories also shows that the Commission’s reasoning is in essence largely identical for each of categories 1, 2, 4 and 5(a).
72. In fact, the Commission in substance acted, for each of those categories, on the basis of the consideration that disclosure of the documents would render public information provided by the leniency applicants as well as by the addressees of requests for information and that that would facilitate the bringing of actions for damages against the undertakings that had cooperated or responded to requests for information and, as a consequence, would deter future potential leniency applicants and future addressees of requests for information from cooperating with it. If its leniency programme and its investigations were undermined in that way, the Commission would be prevented from efficiently carrying out its task of ensuring that European Union (‘EU’) competition law is observed.
73. More specifically, with regard to category 1, the Commission pointed to the fact that lawyers pay very close attention to its leniency practices and that consequently its actions in a case are likely to have repercussions on future cases. As regards category 2, the Commission states that addressees of requests for information under Article 18 of Regulation No 1/2003 might restrict their replies to the bare minimum or use delaying tactics, thereby compelling it to adopt formal decisions in order to secure information. For category 4, the Commission pointed to the legitimate expectation of undertakings that cooperate with it that information provided by them will be disclosed only within the limits of Regulation No 1/2003. So far as category 5(a) is concerned, the Commission merely stated, very generally, that the disclosure of those documents, ‘as [it had] already explained in relation to document categories [1 to 4]’, would threaten the purpose of the investigation but did not put forward any independent reasons connected to the specific content of the documents within that category.
74. In view of the reasons given by the Commission for refusing access to the documents falling in categories 1, 2, 4 and 5(a), there is thus no real difference between the content of the documents falling within each of those categories; the division into categories therefore serves no useful purpose in the context of the contested decision.
75. The Commission certainly affirmed, in response to a question from the Court at the hearing, that, although its refusal to disclose was founded on a few basic legal principles, the explanations provided in the contested decision show that it had taken account of the particular features of the documents falling in the various categories. The fact remains, however, that the reasons relied on for categories 1, 2, 4 and 5(a), summarised at paragraph 73 above, are largely interchangeable and are likely to apply equally to each of the document categories.
76. The Commission’s division into categories was thus, in the case of categories 1, 2, 4 and 5(a), artificial. It did not reflect real differences in the content of the documents within the various categories. It follows that the conditions mentioned at paragraph 64 above which must be met if the Commission is to dispense with a concrete, individual examination of each document were not met, with the result that the Commission was required to examine individually each of the documents included in those categories.
77. By contrast, in the case of category 3, which concerns documents seized in the course of inspections at the premises of the undertakings concerned, the Commission relies, specifically, on the legitimate expectation of the undertakings that documents which it has obtained in the exercise of its powers are not made public but are used exclusively for the purpose of competition proceedings. It should be observed in that regard that the category 3 documents can be distinguished from the documents in other categories by the circumstances in which the Commission obtained them — that is, the fact that they were obtained, pursuant to Article 20(2)(c) of Regulation No 1/2003, against the will of the undertakings concerned, during unannounced inspections carried out by the Commission, whilst all the other documents, in so far as they do not originate from the Commission itself, either (i) were provided by the undertakings of their own free will or (ii) inasmuch as the undertakings were legally obliged to give information, could be provided following much reflection and, if need be, after seeking legal advice. In view of the compulsory element in the handing over of the category 3 documents, the expectation which the undertakings in question could have that the documents seized were going to be used exclusively in the Commission’s investigation under Article 81 EC was inherently different from the expectation — invoked by the Commission in relation to the documents falling within category 4 — which the undertakings could allegedly have that the documents provided voluntarily were not going to be disclosed, that being so even if, in both cases, that expectation could be linked to Article 28 of Regulation No 1/2003. The justification given by the Commission with regard to the category 3 documents is thus based on specific criteria which are to be taken into account when deciding whether the documents in question should be disclosed.
78. It must accordingly be concluded that category 3 was the only category of documents defined by the Commission which, in the light of the reasoning put forward in the contested decision, served any purpose in the examination of the request for access. That conclusion cannot however, pre-empt an examination of whether the reasons put forward by the Commission to justify its refusal to disclose the documents within that category are sound.
79. Accordingly, the Commission was not entitled, in point 3 of the contested decision dealing with the exception concerning the protection of the purpose of investigations, to dispense with a concrete, individual examination of the documents falling within categories 1, 2, 4 and 5(a).
–  The examination, in point 4 of the contested decision, of the exception concerning the protection of commercial interests
80. It should be noted, first and foremost, that, although, in point 4 of the contested decision, dealing with the exception concerning the protection of commercial interests, the Commission finds that access to the documents in categories 1 to 4 must be refused on the basis of the first indent of Article 4(2) of Regulation No 1049/2001, it makes no mention of the documents falling in category 5. The Commission must thus be regarded as not relying on that exception in the case of the category 5 documents.
81. Moreover, the Commission’s reasoning in point 4 of the contested decision is not structured on the basis of the document categories as defined in point 2 of the decision. In fact, it draws a distinction between two groups of documents, namely (i) ‘documents originating from the undertakings concerned’ and (ii) ‘Commission documents’.
82. Like the division into categories for the purpose of applying the exception concerning the protection of the purpose of investigations (see paragraphs 70 to 76 above), this distinction is artificial, as the reasoning used to justify refusing disclosure is the same for both groups of documents.
83. Thus, after explaining that the documents originating from the undertakings concerned ‘contain various kinds of sensitive commercial information’ and ‘detailed data concerning the business and market conduct’ of the undertakings in question — information which the latter had a legitimate interest in protecting from third parties keen to obtain it — the Commission then asserts that ‘[t]he reasons stated above in relation to the documents originating from the undertakings concerned are also applicable, in the same way, to [its] documents’.
84. While purporting to analyse the documents by groups, the Commission’s reasoning is thus general and applies to all the documents in categories 1 to 4, in breach of its obligation, deriving from the case‑law cited at paragraph 40 above, to supply explanations as to how access to each document disclosure of which is requested could specifically and actually undermine the protection of commercial interests.
85. As a consequence, the Commission was not entitled to dispense, in point 4 of the contested decision dealing with the exception concerning the protection of commercial interests, with a concrete, individual examination of the documents requested that fell within categories 1 to 4.
– The examination, in point 3 of the contested decision, of the exception concerning protection of the Commission’s decision-making process
86. As mentioned at paragraph 9 above, the Commission put forward the exception laid down in Article 4(3), second subparagraph, of Regulation No 1049/2001, concerning protection of its decision-making process, with regard solely to the documents falling in category 5(a).
87. Under Article 4(3), second subparagraph, of Regulation No 1049/2001, ‘access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure’.
88. Firstly, it follows implicitly from point 3.2.5 of the contested decision and is explicit in the Commission’s reply of 9 November 2011 to the Court’s written questions that the Commission considers all the category 5(a) documents to contain opinions for internal use within the meaning of that provision.
89. Secondly, as has been pointed out at paragraphs 64 and 65 above, it is only in the event that the documents falling within a category are manifestly covered in their entirety by an exception that the institution may dispense with an individual examination of those documents.
90. In the present case, there is nothing to suggest that all the category 5(a) documents are manifestly covered in their entirety by the exception concerned. On the contrary, given the nature of the documents in the three sub-categories in category 5(a), as defined by the Commission in point 2 of the contested decision and as further specified in its reply of 9 November 2011 to the Court’s written questions, everything tends to suggest that a large number of those documents contain passages that are not opinions within the meaning of Article 4(3), second subparagraph, of Regulation No 1049/2001. That concerns, in particular, the headings in those documents, their introductions and the covering letters sent with them to the various addressees.
91. As a consequence, the Court finds that the Commission was not entitled to dispense, in the passage in point 3 of the contested decision dealing with the exception concerning the protection of its decision-making process, with a concrete, individual examination of the category 5(a) documents, that being so without there being any need, at this stage of the examination, to consider whether the Commission established, to the required legal standard, that all the category 5(a) documents contained opinions within the meaning of Article 4(3), second subparagraph, of Regulation No 1049/2001.
92. It follows that, in order to dispense with a concrete, individual examination of the documents requested, the Commission was able to examine documents by group only in the case of the category 3 documents.
The exception advanced in the Commission’s defence: exceptional and unreasonable amount of work
93. As has been stated at paragraphs 50 to 52 above, this exception cannot provide grounds for refraining from a concrete, individual examination of the documents requested, since no mention is made of it in the contested decision. However, it seems appropriate to consider, for the sake of completeness, the merits of the argument.
94. The Commission argued, at paragraph 103 of the defence, that it had drawn the applicant’s attention to the size of the file and the amount of work which its request involved, while the applicant nevertheless did not sufficiently refine its request. At the same time, the Commission referred to this Court’s case‑law, according to which, in exceptional circumstances, the amount of work entailed by a concrete, individual examination of a large number of documents may be a ground for seeking a ‘fair solution’ together with the applicant in order to reconcile the applicant’s interests and those of good administration (Case T‑14/98 Hautala v Council [1999] ECR II‑2489, paragraph 86, and VKI, paragraph 28 above, paragraphs 101 to 103).
95. However, in this case, the Commission cannot, in any event, rely on that case‑law to justify its failure, in the contested decision, to carry out a concrete, individual examination of the documents requested.
96. Firstly, contrary to the Commission’s contention, it is clear from the documents before the Court that the applicant reacted positively to the Commission’s proposal that it restrict its request for access. In fact, the applicant has produced, in the annex to the application, a fax dated 11 January 2008 in which it acts upon a telephone conversation with the Commission of the previous day’s date. In that fax, the applicant restricts its request for access ‘in order to reduce as much as possible the workload of the directorate-general for competition’, excluding three categories of documents, namely all documents dealing exclusively with the structure of the undertakings concerned, all documents concerning exclusively the issue of who were the correct addressees of the GIS decision and all documents that were drawn up wholly in Japanese.
97. Against that background, the Court rejects the argument which the Commission bases on an exchange of emails dating from January 2008 which, in its submission, show that, despite its repeated requests, reiterated by email of 22 January 2008, the applicant did not refine its request for access. In fact, the exchange in question starts with an email of 18 January 2008 in which the applicant expresses its disappointment that the Commission has not responded to its initial request of 13 December 2007 within the period of 15 working days laid down by Regulation No 1049/2001. It is clear from the Commission’s reply of 22 January 2008 (10.24) and from the applicant’s response of the same day (11.51) that the Commission had not, at that stage, taken account of the applicant’s fax of 11 January 2008, in which the applicant restricted its initial request, even though the applicant was in possession of a satisfactory fax transmission report. The exchange concludes with a further email from the Commission on 22 January 2008 (16.57) taking note of the applicant’s willingness to cooperate and acknowledging receipt of the restriction of the request for access.
98. Therefore, although the Commission did indeed remind the applicant, in the course of that email exchange, of its undertaking to refine its request, the reason for that reminder was the fact that the Commission had not, as it recognised itself in the email closing the exchange, taken account of an earlier fax restricting the request. In those circumstances, the Commission is not justified in arguing that the applicant did not react to the Commission’s request of 22 January 2008 that it refine its request.
99. Furthermore, the Commission’s letter of 30 January 2008, refusing the initial request, takes note, in point 1, of the fact that the request for access is more limited, but does not maintain that the limitation is insufficient from the point of view of reducing the amount of work.
100. Secondly, the Commission has put forward no argument showing that the volume of work generated by a concrete, individual examination of the documents requested was so exceptional that it gave grounds for refusing to carry out such an examination. The Court has stated, in that regard, that in so far as the right of access to documents held by the institutions constitutes an approach to be adopted in principle, it is with the institution relying on an exception related to the unreasonableness of the task entailed by the request that the burden of proof of the scale of that task rests ( VKI, paragraph 28 above, paragraph 113).
101. Consideration of the amount of work entailed in processing an application is not, in principle, relevant for the purpose of adjusting the extent of the right of access, since Regulation No 1049/2001 has expressly envisaged the possibility that a request for access may relate to a very large number of documents, Articles 7(3) and 8(2) providing that the time-limits for processing initial requests and confirmatory requests may be extended in exceptional cases such as, for example, in the event of a request relating to a very long document or to a very large number of documents ( VKI, paragraph 28 above, paragraphs 108 and 110).
102. Moreover, the amount of work entailed in considering a request for access depends not only on the number of documents referred to in the request and their volume, but also on their nature. Consequently, the need to undertake a concrete, individual examination of very numerous documents does not, on its own, provide any indication of the amount of work entailed in processing a request for access, since the amount of work will also depend on the required depth of that examination ( VKI, paragraph 28 above, paragraph 111).
103. Accordingly, it is only in exceptional cases and only where the administrative burden entailed by a concrete, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from that obligation to examine the documents may be permissible (see, by analogy, Case T‑211/00 Kuijer v Council [2002] ECR II‑485, paragraph 57, and VKI, paragraph 28 above, paragraph 112).
104. In this case, the Commission did not establish, or even maintain, prior to the proceedings before the Court, that such exceptional circumstances existed. It is true that it referred, in the introduction to the contested decision, to an email of 10 April 2008 in which it had informed the applicant that, in view of the size of the case-file which contained more than 1 900 documents, it was not able to process the application for access within the period prescribed by Regulation No 1049/2001. It thus relied on Article 8(2) of Regulation No 1049/2001 to extend the period for responding to the confirmatory application. However, the Commission did not contend, at that stage, that it would not be possible, because of the volume of work generated, to carry out a concrete, individual examination of the documents. The conclusion must therefore be drawn, a contrario, that it did not itself regard that amount of work as unreasonable.
105. Thirdly, it should be recalled that, where the institution has adduced proof of the unreasonableness of the administrative burden entailed by a concrete, individual examination of the documents referred to in the request, it is obliged to try to consult with the applicant in order, on the one hand, to ascertain or to ask him to specify his interest in obtaining the documents in question and, on the other, to consider specifically whether and how it may adopt a measure less onerous than a concrete, individual examination of the documents. Since a right of access to documents is the principle, the institution nevertheless remains obliged, against that background, to prefer the option which, whilst not itself constituting a task which exceeds the limits of what may reasonably be required, remains the most favourable to the applicant’s right of access ( VKI, paragraph 28 above, paragraph 114).
106. It follows that the institution may dispense with a concrete, individual examination only after it has genuinely investigated all other conceivable options and explained in detail in its decision the reasons why those various options also involve an unreasonable amount of work ( VKI, paragraph 28 above, paragraph 115).
107. In the present case it does not appear from the statement of reasons in the contested decision that the Commission assessed, in a concrete, specific and detailed manner, the other options that might be envisaged in order to limit its workload or the reasons which could allow it to dispense with any concrete, individual examination instead of adopting, where appropriate, a measure less restrictive of the applicant’s right of access. In particular, it does not appear from the contested decision that the Commission evaluated the amount of work involved in identifying, then examining, individually and concretely, the few documents most likely to satisfy the applicant’s interests immediately and, in some cases, partially in the first instance.
108. Consequently, the Commission has not fulfilled the conditions laid down by the judgment in VKI for a concrete, individual examination of the documents requested to be dispensed with on the ground of the amount of work that such an examination would generate.
109. The foregoing findings show that the Commission was entitled to carry out an examination by categories solely in relation to the exception concerning the protection of the purpose of investigations and only in the case of the category 3 documents, that is, the documents obtained during inspections (see paragraph 77 above). In that respect, the Commission could thus dispense with a concrete, individual examination of the documents requested. That finding does not, however, prejudge the question whether it was entitled to refuse access to those documents on the basis of the exception, a question which is considered in paragraph 113 et seq below.
110. By contrast, in the case of all the other documents requested and all the other exceptions relied on by the Commission, the latter should have undertaken a concrete, individual examination. Inasmuch as the Commission did not undertake such an examination, the contested decision is thus unlawful, because it is in breach of the obligation to undertake a concrete, individual examination of the documents covered by the request:
– in so far as it concerns the application of the third indent of Article 4(2) of Regulation No 1049/2001, in relation to the documents falling within categories 1, 2, 4 and 5(a);
– in so far as it concerns the application of the first indent of Article 4(2) of Regulation No 1049/2001, in relation to the documents falling within categories 1 to 4;
– in so far as it concerns the application of the second subparagraph of Article 4(3) of Regulation No 1049/2001, in relation to the documents falling within category 5(a).
111. The contested decision must therefore be annulled in so far as it refuses access to the documents falling within categories 1, 2, 4 and 5(a).
112. In so far as documents other than those within category 3 are concerned, the following examination of the merits of the exceptions to the right of access on which the contested decision relies is thus undertaken purely for the sake of completeness.
b) First part of the first plea: infringement of Article 4(2), third indent, of Regulation No 1049/2001
113. The applicant, supported by the Kingdom of Sweden, submits that disclosure of the documents access to which it has requested will not have the effect of jeopardising either investigations in progress or future investigations. As regards the investigation in case COMP/F/38.899, the applicant submits that it was brought to an end by the GIS decision. Any resumption of the investigation following an annulment by the Courts of the European Union would constitute a new procedure. With regard to future investigations, the applicant submits that the Commission’s reasoning amounts to creating a new exception for which there is no support in the wording of Article 4(2) of Regulation No 1049/2001 and which renders the right of access wholly redundant.
114. The Commission, supported by ABB and Siemens, contends that the need to protect the purpose of the proceedings in Case COMP/F/38.899 subsists until such time as the GIS decision is no longer amenable to appeal. Moreover, in the Commission’s view, the scope of the third indent of Article 4(2) of Regulation No 1049/2001 extends, generally, to the protection of its ongoing task of applying competition law and, specifically, to the protection of its leniency programme. Disclosure of documents provided by undertakings in the framework of a leniency application would deter them from cooperating with the Commission in the future.
115. In this case, the Commission refused to disclose to the applicant documents relating to competition proceedings, and did so in reliance, inter alia, on the exception to the right of access provided for in the third indent of Article 4(2) of Regulation No 1049/2001, which is based on the protection of the purpose of inspections, investigations and audits. It is not disputed by the parties that the documents requested related to an ‘investigation’ within the meaning of that provision. However, the applicant argues that, since the Commission’s investigation is completed, the exception based on the protection of investigations is no longer applicable.
116. In the first place, it should be recalled in that regard that, as is clear from the wording of the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, the aim of the exception is not to protect investigations as such, but rather their purpose, which, in the case of competition proceedings, is to determine whether an infringement of Article 81 EC has taken place and to penalise the companies responsible if that be the case. It is for that reason that documents relating to the various acts of investigation may remain covered by the exception in question so long as that goal has not been attained, even if the particular investigation or inspection which gave rise to the document to which access is sought has been completed (Case T‑36/04 API v Commission [2007] ECR II‑3201, paragraph 133, and, by analogy, Joined Cases T‑391/03 and T‑70/04 Franchet and Byk v Commission [2006] ECR II‑2023, paragraph 110, and, as regards the application of the 1993 Code of Conduct, Case T‑20/99 Denkavit Nederland v Commission [2000] ECR II‑3011, paragraph 48).
117. In the present case, however, on the date of the adoption of the contested decision, the Commission had already adopted — almost 17 months earlier — the GIS decision finding the infringements alleged by the Commission against the undertakings concerned and thereby closing the proceedings in Case COMP/F/38.899. It cannot therefore be disputed that, on that date, there was no investigation in progress to prove the existence of the infringements in question which could have been jeopardised by the disclosure of the requested documents
118. It is true that, at the date on which the contested decision was adopted, actions were pending before this Court against the GIS decision, with the effect that if that decision was annulled, the proceedings could be re-opened. Delivery of judgments in the cases in question has not changed that situation, since a number of appeals against those judgments are currently pending before the Court of Justice.
119. However, the investigation in a given case must be regarded as closed once the final decision is adopted, regardless of whether that decision might subsequently be annulled by the courts, because it is at that moment that the institution in question has itself considered the proceedings to be completed.
120. Indeed, to accept that the various documents relating to investigations are covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 until all the possible consequences of the proceedings in question have been decided — even in the case where an action which may lead to a re-opening of the proceedings before the Commission has been brought before the Court — would make access to those documents dependent on uncertain events, namely the outcome of that action and the conclusions which the Commission might draw from it. In any event they are uncertain and future events which depend on decisions of the addressees of the decision censuring a cartel and of the various authorities concerned.
121. Such an approach would be contrary to the objective of guaranteeing the widest possible public access to documents emanating from the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers ( API v Commission, paragraph 116 above, paragraph 140; and, see, to that effect, Franchet and Byk v Commission, paragraph 116 above, paragraph 112).
122. It follows that disclosure of the documents requested was not likely to undermine the protection of the purpose of investigations so far as the Commission proceedings relating to the GIS cartel were concerned.
123. In the second place, the finding made in the previous paragraph cannot be called into question by the Commission’s argument that the concept of ‘the purpose of investigations’ has a more general scope and includes the whole of the Commission’s policy in regard to the punishment and prevention of cartels.
124. The Commission argues, in essence, that the concept of ‘investigations’ cannot be limited, in the sphere of cartels, to the proceedings leading up to a decision prohibiting the cartel but must be regarded as an integral part of the Commission’s regular, ongoing task of enforcing EU competition law. The third indent of Article 4(2) of Regulation No 1049/2001 therefore applies, in the Commission’s submission, after particular proceedings have been completed. Given that, in proceedings against cartels, the Commi ssion is reliant on the cooperation of the undertakings concerned, it submits that, if the documents that those undertakings provides it with were not kept confidential, the undertakings would have less incentive to file leniency applications and would also restrict themselves to the bare minimum when providing all other information, in particular as regards requests for information and inspections. The protection of confidentiality is thus a prerequisite for the effective prosecution of infringements of competition law and, by the same token, an essential component of the Commission’s competition policy.
125. However, acceptance of the interpretation proposed by the Commission would amount to permitting the latter to exclude its entire activity in the area of competition from the application of Regulation No 1049/2001, without any limit in time, merely by reference to a possible future adverse impact on its leniency programme. Account should be taken, in that regard, of the fact that the consequences which the Commission fears for its leniency programme depend on a number of uncertain factors, including, in particular, the use that the parties prejudiced by a cartel will make of the documents obtained, the success of any actions which they may bring for damages, the amounts which will be awarded them by the national courts and the way in which undertakings participating in cartels will react in future.
126. Such a broad interpretation of the concept of ‘investigation’ is incompatible with the principle that, on account of the purpose of Regulation No 1049/2001, as stated in recital 4, namely, ‘to give the fullest possible effect to the right of public access to documents’, the exceptions laid down in Article 4 of that regulation must be interpreted and applied strictly (see the case‑law cited in paragraph 41 above).
127. It must be stressed, in that regard, that nothing in Regulation No 1049/2001 gives grounds for assuming that EU competition policy should enjoy, in the application of that regulation, treatment different from other EU policies. There is thus no reason to interpret the concept of the ‘purpose of investigations’ differently in the context of competition policy than in other EU policies.
128. In addition, it must be recalled that the leniency and co-operation programmes whose effectiveness the Commission is seeking to protect are not the only means of ensuring compliance with EU competition law. Actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the European Union (Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 27).
129. Accordingly, the Commission made an error of law in holding, in the contested decision, that the exception to the right of access to documents laid down in the third indent of Article 4(2) of Regulation No 1049/2001 was applicable in the present case. In particular, it was therefore not entitled to refuse access to the documents falling within category 3 on the basis of that exception.
130. Accordingly, the first part of the applicant’s first plea must be accepted in relation to documents falling within categories 1, 2, 3, 4 and 5(a).
c) Second part of the first plea: infringement of Article 4(2), first indent, of Regulation No 1049/2001
131. Firstly, the applicant, supported by the Kingdom of Sweden, maintains, in essence, that, because it dates from a long time ago, the information in the documents forming part of the file requested is no longer capable of jeopardising the commercial interests of the undertakings concerned. Secondly, it submits that the interest of the cartel members in the documents on the file being kept secret is objectively not deserving of protection. Thirdly, cartel members may not rely on a legitimate expectation that the documents in question will not be disclosed.
132. The Commission, supported by ABB and Siemens, argues, in essence that the concept of ‘protection of commercial interests’ must be broadly interpreted. In its submission, confidentiality has already been considered in the context of the parties concerned by the competition investigation having access to the file, so that a further specific and thorough examination is not necessary. In addition, the sensitive nature of commercial data cannot be assessed merely on the basis of the fact that they date from a long time ago. Moreover, Regulation No 1/2003, which sets out exhaustively the administrative penalties which may be imposed on an undertaking that has participated in a cartel, does not provide for the removal of rights so far as the protection of those undertakings’ commercial interests are concerned.
133. In accordance with the first indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person unless there is an overriding public interest in disclosure.
134. Although the concept of ‘commercial interests’ has not been defined in the case‑law, the Court has made clear that it is not possible to regard all information concerning a company and its business relations as covered by the protection which must be guaranteed to commercial interests under the first indent of Article 4(2) of Regulation No 1049/2001 if application of the general principle of giving the public the widest possible access to documents held by the institutions is not to be frustrated (judgment of 30 January 2008 in Case T‑380/04 Terezakis v Commission, not published in the ECR, paragraph 93).
135. The Court must therefore consider whether the Commission erred in holding that the documents belonging to categories 1 to 4 were covered by the concept of ‘commercial interests’ within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001.
136. The applicant does not dispute, generally, that the documents requested may contain information concerning the business relations of the companies that took part in the GIS cartel, the prices of their products, their cost structures, their market share or other similar matters.
137. However, with regard to the applicant’s first argument, concerning how long the information has been in existence, it should be noted that, in point 23 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 [EC] and 82 [EC], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005, C 325, p. 7; ‘the notice on the rules for access to the file in competition cases’), the Commission has itself taken the view that ‘[i]nformation that has lost its commercial importance, for instance due to the passage of time, can no longer be regarded as confidential’ and that ‘[a]s a general rule, [it] presumes that information pertaining to the parties’ turnover, sales, market-share data and similar information which is more than 5 years old is no longer confidential’.
138. That Commission notice undoubtedly cannot bind the Court when it interprets Regulation No 1049/2001. Indeed, it makes clear, in point 2, that the right of access to the file as outlined in the notice is distinct from the general right to access to documents established by Regulation No 1049/2001, which right is subject to different criteria and exceptions. Furthermore, point 23 of the notice on the rules for access to the file in competition cases concerns the concept of ‘confidentiality’ and not that of ‘commercial interests’ referred to in the first indent of Article 4(2) of Regulation No 1049/2001. As a consequence, the concept of ‘commercial interests’ can be understood only in the light of Regulation No 1049/2001. Nevertheless, point 23 of the notice is capable of providing an indication of the meaning which should be given, according to the Commission, to the concept of ‘commercial interests’.
139. In fact, since the Commission, in interpreting the concept of ‘confidentiality’ resorted to the concept of ‘commercial importance’, which is for its part close to the concept of ‘commercial interests’, it may be inferred that, in the Commission’s opinion, the degree of confidentiality of a document or of information depends upon the significance of the negative effects that the company in question has to fear in the event of the document or information being disclosed. Therefore, point 23 of the notice on the rules for access to the file in competition cases gives an indication of the balancing of interests which should be undertaken, according to the Commission itself, in situations in which information relating to the commercial activities of a company may be disclosed to other economic operators whose interests may be contrary to those of the company in question, as is precisely the case here. In this respect, the negative effects liable to follow upon the disclosure of commercially sensitive information become less significant the older the information in question is (see, to that effect, orders of 15 November 1990 in Joined Cases T‑1/89 to T‑4/89 and T‑6/89 to T‑15/89 Rhône-Poulenc and Others
v Commission [1990] ECR II‑637, paragraph 23, and in Joined Cases T‑134/94, T‑136/94 to T‑138/94, T‑141/94, T‑145/94, T‑147/94, T‑148/94, T‑151/94, T‑156/94 and T‑157/94 NMH Stahlwerke and Others
v Commission [1996] ECR II‑537, paragraphs 24 and 32).
140. On the date of adoption of the contested decision — 16 June 2008 — most of the commercially sensitive information in the documents requested dated from well over five years earlier. Indeed, as the applicant points out, since the GIS cartel had been active from 15 April 1988 until 11 May 2004, only the information relating to 2003 and 2004 was not yet more than five years old when the contested decision was adopted.
141. The Commission argues that the Court’s case‑law cited at paragraph 139 above concerned ‘business secrets’ and not the — very much wider — concept of ‘commercial interests’ and that the five-year limit mentioned in point 23 of the notice on the rules for access to the file in competition cases is not a binding rule but, at the very most, a rule of thumb. Moreover, it cites examples from the case‑law where data have been regarded as deserving of protection after that period.
142. In that regard, it should be stated that, as the Commission correctly contends, there can be no question of applying a strict rule whereby all information relating to facts in existence for a particular length of time should be regarded as no longer affecting the commercial interests of the company to which it relates. However, as has already been stated at paragraph 139 above, the fact that the information in question has been in existence for a particular length of time increases the likelihood that the commercial interests of the companies concerned will no longer be affected to an extent that justifies the application of an exception to the principle of transparency embodied in Regulation No 1049/2001. Consequently and in view of the fact that, in the present case, the information concerning the commercial activities of the companies in question covered a period of 16 years (from 1988 to 2004), it must be held that the Commission had in any event an obligation to carry out a concrete, individual examination of the documents requested from the point of view of the exception concerning the protection of commercial interests and could not confine itself to general assessments covering all the documents falling within categories 1 to 4. Since it did not carry out such an examination, it has not established to the required legal standard that disclosure of the documents requested would have undermined the protection of the commercial interests of particular legal persons.
143. Accordingly, the Court rejects the Commission’s argument that, in view of the fact that the confidential information on the COMP/F/38.899 case-file had already — in the context of both the publication of the public version of the GIS decision and the grant of access to the file during the proceedings — been examined in order to ascertain whether it was deserving of protection, there was no need for it to carry out a further specific, exhaustive examination of the various documents.
144. Firstly, that argument confuses various provisions governing the confidentiality of protected information which entail, however, the application of different criteria for the purpose of assessing whether the information needs protecting and for the purpose of balancing the interests militating for and against the grant of access. The Commission has itself acknowledged the latter in point 2 of the notice on the rules for access to the file in competition cases, cited at paragraph 138 above.
145. By way of example, access to certain documents on the file to which undertakings that have been sent a statement of objections by the Commission are entitled, pursuant to Article 27(2) of Regulation No 1/2003, is an aspect of the exercise of their rights of defence and, as has been pointed out at paragraph 60 above, documents obtained on that basis may be used only for the purposes of judicial or administrative proceedings for the enforcement of Articles 81 EC and 82 EC. Thus, the rights of the defence as specific rights subsumed within the fundamental rights of the undertakings concerned give rise, solely for specific purposes, to access to specific documents from which only the institution’s internal documents, the business secrets of other undertakings and other confidential information are excluded. On the other hand, the public right of access under Regulation No 1049/2001, as a general right, may possibly give rise, without any restriction as to how the documents obtained are used, to access to all the documents in the institutions’ possession, while such access may be refused on a series of grounds set out in Article 4 of the regulation. In view of those differences, the fact that the Commission has already determined the degree of access it could grant to the information held in the COMP/F/38.899 case-file (in the context of access to the file as required by the rights of the defence), or to what extent that information should be published (in the context of the public version of the GIS decision), does not mean that it may dispense with any further consideration of those questions in the light of the specific conditions linked to the right of access under Regulation No 1049/2001.
146. Secondly, it is clear from the considerations set out at paragraphs 139 to 142 above that the mere passage of time is likely gradually to reduce the need for protection on grounds of commercial interests of the information held in case-file COMP/F/38.899. Therefore, the mere fact that a period of more than two years had elapsed between the grant of access to the file under Article 27(2) of Regulation No 1/2003, in April 2006, and adoption of the contested decision, on 16 June 2008, was sufficient for the Commission to be obliged to carry out a further examination of the requirements for confidentiality deriving from the protection of the commercial interests of the undertakings concerned.
147. Finally, the Court finds that the interests of the undertakings that had participated in the cartel — and, in particular, those of the interveners ABB and Siemens — in non-disclosure of the documents requested cannot be regarded as commercial interests in the true sense of those words. Indeed, taking account in particular of the age of most of the information held on the file in question, the interest which those companies might have in non-disclosure of the documents requested seems to reside not in a concern to maintain their competitive position on the GIS market on which they are active but, instead, in a desire to avoid actions for damages being brought against them before the national courts.
148. Even though the fact that actions for damages are brought against a company can undoubtedly cause high costs to be incurred, be it only in terms of legal costs, even where the actions are subsequently dismissed as unfounded, the fact remains that the interest of a company which has taken part in a cartel in avoiding such actions cannot be regarded as a commercial interest and, in any event, does not constitute an interest deserving of protection, having regard, in particular, to the fact that any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition ( Courage and Crehan, paragraph 128 above, paragraphs 24 and 26, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraphs 59 and 61).
149. It follows from the foregoing that the Commission has not established, to the required legal standard, that access to the documents requested would be likely specifically and actually to undermine the commercial interests of the undertakings which took part in the cartel.
150. The second part of the applicant’s first plea must therefore be accepted.
d) Third part of the first plea: infringement of Article 4(3), second subparagraph, of Regulation No 1049/2001
151. The applicant maintains that the Commission made an error of law in that, having refused access to all the documents falling within category 5(a) on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, its refusal of access covered in particular documents which did not contain any opinions for internal use within the meaning of that provision. In addition, the Commission failed to explain in what respect the applicant’s consulting those documents would seriously undermine its decision-making process, as is required by that provision. Indeed, following adoption of the GIS decision, it was no longer conceivable that disclosure of internal documents could facilitate attempts to influence the results of the investigation.
152. In the first place, it should be recalled that Article 4(3) of Regulation No 1049/2001 draws a clear distinction by reference to whether a procedure has been closed or not. Thus, according to the first subparagraph of that provision, any document drawn up by an institution for internal use or received by it, which relates to a matter where the decision has not been taken by the institution, falls within the scope of the exception for protecting the decision-making process. The second subparagraph of that provision provides that, after the decision has been taken, the exception at issue covers only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned.
153. It is thus only for part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) allows access to be refused even after the decision has been taken, where disclosure of the documents would seriously undermine the decision-making process of that institution.
154. It follows that the EU legislature took the view that, once the decision has been adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can never undermine that process and that refusal of access to such a document cannot be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question (Case C‑506/08 P Sweden v Commission and MyTravel [2011] ECR I‑6237, paragraphs 78 to 80).
155. In the present case, it should be noted that the Commission based its refusal solely on the second subparagraph of Article 4(3) of Regulation No 1049/2001 and not on the first subparagraph of that provision.
156. In the second place, with regard to the question whether the Commission has established to the required legal standard that all the documents falling within category 5(a) contained opinions for internal use as part of deliberations and preliminary consultations, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, the Commission maintained, in response to a written question from the Court, that that term encompassed, (i) all documents containing or seeking an appraisal or a view from its officials or its departments, (ii) all documents used in the preparation of its decision and (iii) all documents securing the participation of other departments in the proceedings. In its submission, all documents falling within category 5(a), which it identified, in its response of 9 November 2011, by their page numbers within case‑file COMP/F/38.899, are covered by that definition.
157. The Commission took as its basis in that regard the classification which the Cour ts of the European Union have given to certain documents requested from the Commission in other cases. Thus, according to the Commission, it can be seen from a reading of the judgment in Sweden v Commission and MyTravel, paragraph 154 above, and from the judgment in Case T‑403/05 MyTravel v Commission
[2008] ECR II‑2027, that the Courts of the European Union have regarded as internal documents containing opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001 a note sent by DG Competition to the Advisory Committee, a file note and a report concerning the consequences of a judgment and the documents relating to the preparation of that report. Likewise, the Commission argues that this Court held, in its judgment in Case T‑237/05 Éditions Jacob
v Commission [2010] II‑22245, that a note from DG Competition to the Commission’s Legal Service requesting an opinion on the application of a legal provision and a note summarising the state of the file, prepared for the Member of the Commission responsible for competition, contained opinions of that type.
158. It can be seen, in this connection, that the Commission, relying on findings of the Courts of the European Union relating to certain individual documents, is seeking, by means of generalisations and analogies, to equate the concept of ‘opinions for internal use as part of deliberations and preliminary consultations’, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, with that of a ‘document drawn up by an institution for internal use’ within the meaning of the first subparagraph of that provision. In fact, acceptance of such a broad definition of the concept of ‘opinions for internal use as part of deliberations and preliminary consultations’ would thus render partially redundant the two subparagraphs of Article 4(3), the broad logic of which is, however, based inter alia on the principle — highlighted by the case‑law cited at paragraph 154 above — that, after a decision has been taken by the institution in question, access may be refused only for part of the documents for internal use.
159. The Commission has thus failed to establish to the required legal standard that all the documents falling within category 5(a) contained opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
160. Furthermore, although the grounds put forward by the Commission in the proceedings before the Court, as summarised at paragraph 156 above, are admittedly capable of rendering plausible the premiss that many of the category 5(a) documents contain such opinions, the fact remains that those grounds — and, in particular, the confidential version of the list of documents on the COMP/F/38.899 case-file and the identification, by their page numbers, of the documents falling within the three sub-categories of category 5(a) — were not relied on by the Commission in the contested decision and therefore cannot be considered a reason that was decisive in the adoption of that decision. Consequently, for the purposes of the outcome of these proceedings, the conclusion must be that the Commission has failed to establish that all the documents falling within category 5(a) had the status of opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
161. The contested decision therefore contains an error of law inasmuch as the Commission held that all the documents falling within category 5(a) contained opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
162. In the third place, with regard to the reasoning employed by the Commission, in the contested decision, to justify refusing access on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, it should be recalled that, according to settled case‑law, in order to apply this exception, it must be shown that access to the documents requested was likely specifically and actually to undermine the Commission’s decision-making process and that that risk was reasonably foreseeable and not purely hypothetical (judgment of 18 December 2008 in Case T‑144/05 Muñiz
v Commission, not published in the ECR, paragraph 74 and the case‑law cited).
163. Furthermore, if the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 is to apply, the decision-making process would have to be ‘seriously’ undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all the circumstances of the case, including, inter alia, the negative effects on the decision-making process relied on by the institution as regards disclosure of the documents in question ( Muñiz
v Commission, paragraph 162 above, paragraph 75).
164. In this case, the contested decision points out that the Commission’s decision-making process requires a climate of trust and open discussion to be maintained, so that Commission staff may freely express their point of view, in particular on sensitive issues such as cartel cases. That is a sine qua non
for the Commission to be able to carry out its task. The publication of internal and provisional points of view concerning a cartel investigation would undermine that ability and could reduce the room for manoeuvre available so far as further consideration of those points of view is concerned.
165. The Commission adds that, should the GIS decision be annulled following the actions brought by the participants in the GIS cartel, it would have to resume its investigation in that case. The disclosure of internal documents could then facilitate attempts to influence the outcome of the investigation and would accordingly seriously undermine the Commission’s decision-making process.
166. Those grounds are put forward in a general and abstract fashion, without being supported by any detailed argument based on the content of the documents in question. Such considerations could thus apply with respect to any document of a similar nature. They are therefore insufficient to justify the refusal of access to the documents requested in the present case without imperilling the principle that the exceptions laid down in Article 4 of Regulation No 1049/2001, and in particular the exception laid down in the second subparagraph of Article 4(3) of that regulation, are to be strictly interpreted. Attention should, in particular, be drawn in that regard to the fact that the Commission has not specified at all how third parties could seek to influence the outcome of the investigation in the event of it being resumed.
167. Moreover, with regard specifically to the case mentioned in which the Commission, following an annulment of the GIS decision, would have to take a further decision, it is clear that the Commission is seeking to compare, or even equate, the current situation — characterised, as described at paragraphs 117 to 119 above, by the fact that the Commission has already adopted a decision — to a situation in which a decision has not yet been taken. In the light of the case‑law referred to at paragraphs 152 to 154 above, which lays stress on the appreciably stricter conditions governing a refusal to grant access after a decision has been taken, any confusion between the factual conditions for applying the two subparagraphs of Article 4(3) of Regulation No 1049/2001 should be avoided.
168. It follows that, in so far as the documents within category 5(a) contain opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, the Commission incorrectly held that their disclosure would seriously undermine its decision-making process.
169. The contested decision therefore contains an error of law in so far as it is based on the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
170. The third part of the applicant’s first plea must therefore be accepted.
171. In view of all the foregoing, firstly, in accordance with the findings made at paragraph 37 above, it is appropriate to uphold the plea alleging manifest error of assessment with regard to the scope of the request for access to documents, so far as the documents falling within category 5(b) are concerned, and, as a consequence, to annul the contested decision in so far as it refuses access to those documents.
172. Secondly, in accordance with the findings made at paragraphs 110 and 111 above, it is appropriate to uphold the complaint based on the failure to undertake a concrete, individual examination of the documents requested, with the sole exception of the documents falling within category 3 and only in relation to the exception based on the third indent of Article 4(2) of Regulation No 1049/2001.
173. Thirdly, in accordance with the findings made at paragraphs 129 and 130 above, it is appropriate to uphold the first part of the first plea alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, for the documents falling within categories 1, 2, 3, 4 and 5(a), since the Commission held, incorrectly, that the exception based on the protection of the purpose of investigations was applicable in the present case.
174. Fourthly, in accordance with the findings made at paragraphs 149 and 150 above, it is appropriate to uphold the second part of the first plea, alleging infringement of the first indent of Article 4(2) of Regulation No 1049/2001, since the Commission held, incorrectly, that disclosure of the documents falling within categories 1 to 4 would affect the commercial interests of the undertakings that had participated in the GIS cartel.
175. Fifthly, in accordance with the findings made at paragraphs 161 and 168 to 170 above, it is appropriate to uphold the third part of the first plea, alleging infringement of the second subparagraph of Article 4(3) of Regulation No 1049/2001, since the Commission held, incorrectly, that all the documents falling within category 5(a) contained opinions within the meaning of that provision and since it held, incorrectly, that disclosure of those documents would seriously undermine its decision-making process.
176. It follows that the contested decision must be annulled in its entirety, there being no need to consider the second and third pleas raised by the applicant.
Costs
177. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.
178. The Kingdom of Sweden, ABB and Siemens are to bear their own costs, pursuant to the first and third subparagraphs of Article 87(4) of the Rules of Procedure.
Operative part
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls Commission Decision SG.E.3/MV/psi D (2008) 4931 of 16 June 2008 refusing access to the case-file in Case COMP/F/38.899 — Gas insulated switchgear;
2. Orders the European Commission to bear its own costs and to pay those incurred by EnBW Energie Baden-Württemberg AG;
3. Orders the Kingdom of Sweden, ABB Ltd and Siemens AG to bear their own costs.