The detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services does not fall within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, namely a procedure whereby the administrative body gathers information and checks certain facts before taking a decision.

In the first, place, in the context of the procedure laid down by Directive 98/34, it is not the Commission’s task to gather information before delivering a detailed opinion. In the second place, although, on the basis of the information sent by the notifying Member State, the Commission checks certain facts, it does not adopt a decision, but, if necessary, issues a non-binding, interim opinion. The delivery of a detailed opinion is merely the outcome of the analysis of the draft technical regulation carried out by the Commission, as a result of which the Commission takes the view that the draft technical regulation may create obstacles to the free movement of goods and services or the freedom of establishment of service operators within the internal market. Furthermore, that detailed opinion does not necessarily reflect a final position on the part of the Commission, because, following its delivery, the Member State concerned must report to the Commission on the action it proposes to take on such a detailed opinion and the Commission must comment on that reaction.

The detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 also does not constitute the result of research carried out by a competent authority in order to establish that an infringement has taken place. By its nature, a draft technical regulation is a preparatory text, which may alter and be amended. As long as that technical regulation is not adopted, it cannot infringe the rules governing the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market. Consequently, the Member State to which that opinion is addressed cannot have infringed EU law because, at the time when a detailed opinion under Directive 98/34 is delivered, the national technical regulation exists only in draft form.

Moreover, even if the detailed opinion did fall within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001, the exception laid down by that provision is designed to protect not investigations as such but the purpose of those investigations. In that regard, disclosure, during the standstill period, of a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not necessarily adversely affect the purpose of that procedure. The fact that the Commission discloses its detailed opinion to the effect that aspects of the draft technical regulation may create obstacles to the free movement of goods, the free movement of services and the freedom of establishment of service operators within the internal market does not jeopardise the objective of having a national technical regulation which complies with EU law. On the contrary, such disclosure will be perceived by the Member State concerned as an additional incentive to make sure that its technical regulation is compatible with the EU rules governing such fundamental freedoms.

(see paras 55, 56, 58-61, 63, 64, 84, 87)