6.

Subsequently, the IBM case-law has been applied in various judgments by the Court — even outside the sphere of competition law — and by the Court of First Instance to measures adopted by a procedure involving several stages. ( 6 ) An instructive application is to be found in the Court's judgment of 24 June 1986 in A2KO, ( 7 ) particularly since in that case, unlike in the IBM case, the Court decided that the application for the annulment of the contested decision was (partly) admissible. The measure at issue was a Commission decision in a competition procedure to the effect that certain documents were ‘not among those to which confidential treatment was guaranteed by Community law’ (paragraph 17). After first reiterating the general rule contained in paragraph 9 of the IBM judgment and stating that the decision to refuse confidential treatment had legal effect for the applicant ‘inasmuch as it withheld from the latter the protection provided by Community law’, the Court considered‘whether that decision clearly altered the applicant's legal position or whether it was merely a preparatory step against which, if it was unlawful, the action brought against the decision concluding the procedure would provide sufficient protection’ (paragraph 19). In the course of that examination the Court held that the decision to refuse confidential treatment of documents — which led the Commission to consider that it was entitled to communicate them to the complainant undertaking (ECS), which it did — is ‘definitive in nature and is independent of any decision on the question whether Article 86 of the Treaty has been infringed’. The Court then continued as follows: ‘The opportunity which the applicant has to bring an action against a final decision establishing that the competition rules have been infringed is not of such a nature as to provide it with an adequate degree of protection of its rights in the matter. On the one hand, it is possible that the administrative procedure will not result in a decision finding that an infringement has been committed. On the other hand, if an action is brought against that decision, it will not in any event provide the applicant with the means of preventing the irreversible consequences which would result from improper disclosure of certain of its documents.’ (paragraph 20) The Court added that ‘[The applicant's] interest in contesting the decision in question cannot be denied on the ground that in this case the decision had already been implemented at the time when the action was brought. The annulment of such a decision is itself capable of having legal consequences, in particular by preventing a repetition by. the Commission of the practice complained of and by rendering unlawful the use by ESC of any documents improperly communicated to it’, (paragraph 21) The application was therefore declared admissible with regard to this point in so far as it sought a declaration that the contested decision was void, but not in so far as it sought a order requiring the documents communicated to ECS to be returned the applicant, on the ground that the Court considered that it had no jurisdiction to make such an order in proceedings for a declaration that a measure is void.