Case T‑380/08

Kingdom of the Netherlands

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Request seeking to obtain access to certain confidential passages of the final decision of the Commission relating to a cartel — Refusal of access — Obligation to state reasons — Obligation to carry out a specific, individual examination — Exception concerning the protection of privacy and the integrity of the individual — Exception concerning the protection of the commercial interests of a third party — Exception relating to the protection of the purpose of investigations — Overriding public interest — Sincere cooperation’

Summary — Judgment of the General Court (Sixth Chamber), 13 September 2013

Institutions of the European Union — Right of public access to documents — Exceptions to the right of access to documents — Higher public interest justifying the disclosure of documents — Concept — Action for compensation for damage suffered by reason of an infringement of the competition rules — Not included — Private nature of such an interest, even where civil action brought by a Member State

Institutions of the European Union — Right of public access to documents — Exceptions to the right of access to documents — Protection of the commercial interests of a third party — Scope — Third party having participated in an infringement of the competition rules — Included — Limits

Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Scope — Application to administrative files relating to procedures for reviewing compliance with the competition rules — General presumption that the disclosure of certain documents from such files undermines protection of the interests involved in such a procedure

See the text of the decision. (see para. 26)

Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents, and Regulation No 1/2003 do not contain a provision expressly giving one regulation primacy over the other. Accordingly, it is appropriate to ensure that each of those regulations is applied in a manner compatible with the other and which enables a coherent application of them. In that context, for the purposes of interpretation of the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001, it is necessary to acknowledge the existence of a general presumption that the disclosure of documents gathered by the Commission in the context of a proceeding under Article 81 EC undermines, in principle, both the protection of the purpose of inspections, investigations and audits of the institutions of the European Union and the protection of the commercial interests of the undertakings involved in such a procedure. In that regard, 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, restrict the use of information under proceedings relating to the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, by limiting access to the file to the parties to whom the Commission has addressed a statement of objections and, possibly, to complainants, subject to the legitimate interest of the undertakings concerned in the non-disclosure of their business secrets, and by requiring that the information concerned is used only for the purposes for which it was gathered, and that the information, which, by its nature, is covered by the obligation of professional secrecy, is not disclosed. In those circumstances, first, generalised access, on the basis of Regulation No 1049/2001, to the documents exchanged in a proceeding under Article 81 EC between the Commission and the parties involved in that proceeding or third parties would jeopardise the balance which the EU legislature sought to ensure, in Regulation No 1049/2001, between the obligation on the undertakings concerned to send the Commission possibly sensitive commercial information and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission. Second, if persons other than those entitled to have access to the file by the rules relating to a proceeding under Article 81 EC were able to obtain access to the documents relating to such a procedure on the basis of Regulation No 1049/2001, the system introduced by that legislation would be undermined. Moreover, as regards information gathered by the Commission pursuant to the Leniency Notice, the disclosure of that information could dissuade potential leniency applicants from making statements under that notice. Indeed they could find themselves in a less favourable position than that of other undertakings which participated in the cartel and which did not cooperate with the investigation or which cooperated to a lesser extent. (see paras 31, 38-42)

Neither Regulation No 1049/2001 nor Regulation No 1/2003 provides that the participation of an undertaking in an infringement of the competition rules prevents the Commission from invoking the protection of the commercial interests of that undertaking to refuse access to information and documents relating to the infringement concerned. On the contrary, the fact that Article 28(1) and (2) of Regulation No 1/2003 provides that information collected pursuant to Articles 17 to 22 thereof can be used only for the purpose for which it was acquired and that the Commission and the competition authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States are obliged not to disclose information acquired or exchanged by them pursuant to that regulation and of the kind covered by the obligation of professional secrecy shows that, in principle, the information concerning the infringement at issue can, or even must, be considered confidential. That conclusion is moreover confirmed by the fact that the right of access to the Commission’s file of the undertakings to which a statement of objections has been addressed is, under Article 27(2) of Regulation No 1/2003, limited by the legitimate interest of undertakings in the protection of their business secrets and does not extend to confidential information. That means that the EU legislature decided to provide some protection to the commercial interests of undertakings subject to a proceeding applying Article 81 EC, as well as Article 82 EC, even in the situation where that interest could be partly in conflict with the rights of defence of those undertakings. Whilst the interest of an undertaking which the Commission has fined for breach of competition law in the non-disclosure to the public of details of the offending conduct of which it is accused does not merit any particular protection, given, first, the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised and the interest of persons harmed by the infringement in being informed of the details thereof so that they may, where appropriate, assert their rights against the undertakings punished, and, second, the fined undertaking’s ability to seek judicial review of such a decision, it is nevertheless necessary to respect the reputation and dignity of the undertakings concerned so long as they have not been found finally guilty of an infringement. (see paras 48-52)

There are no grounds for considering that all the information relating to the details of the offending conduct must be regarded as not being confidential as regards the public. A rule under which any document relating to competition proceedings must be disclosed to a party requesting it on the sole ground that that party is intending to bring an action for damages is not necessary in order to ensure effective protection of the right to compensation enjoyed by that party, as it is highly unlikely that the action for damages must be based on all of the evidence in the file relating to those proceedings. Furthermore, that rule could lead to infringement of other rights conferred by EU law, inter alia, on the undertakings concerned, such as the right to protection of professional secrecy or of business secrecy, or on the individuals concerned, such as the right to protection of personal data. Lastly, such generalised access is also liable to adversely affect public interests, such as the effectiveness of anti-infringement policies in the area of competition law, because it could deter parties involved in infringements of Articles 81 EC and 82 EC from cooperating with the competition authorities. (see paras 53, 56)

The question whether a person needs a document to prepare an action for annulment is a question to be considered when that action is assessed and, even if that need is established, that is not taken into consideration for the purposes of assessing the balance of interests referred to in Article 4(2) of Regulation No 1049/2001 in relation to a request for access to documents and information that could be useful for the action. First, it is for the relevant national court before which an action for damages is brought to decide on the way in which evidence and appropriate documents are produced in accordance with the applicable law to resolve the dispute. Second, the interest based on the possibility of obtaining compensation for the damage resulting from an infringement of European Union competition law must be considered a private interest, despite the importance of actions for damages in potentially contributing to the maintenance of effective competition in the European Union. In that regard, the public interest in enforcing competition law against a cartel contrary to EU competition rules is already pursued by the Commission when it adopts a decision finding an infringement of those rules. That finding cannot be invalidated by the fact that the applicant is a Member State. (see paras 80-82, 84, 85)

See the text of the decision. (see paras 91, 92)