Case T‑611/15

Edeka-Handelsgesellschaft Hessenring mbH

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Table of contents of the Commission file relating to a proceeding under Article 101 TFEU — Refusal to grant access — Obligation to state reasons — Obligation to provide information on legal remedies — Exception relating to the protection of the purpose of investigations — General presumption of confidentiality)

Summary — Judgment of the General Court (Second Chamber), 5 February 2018

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to grant partial access to data not covered by the exceptions — Application to documents falling within a category covered by a general presumption of refusal of access — Not included

EU institutions — Right of public access to documents — Exceptions to the right of access to documents — Overriding public interest in disclosing the requested documents — Meaning — Action for compensation for damage suffered by reason of an infringement of the competition rules — Not included — Private nature of such an interest

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Protection of commercial interests — 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 — Application to the table of contents

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Protection of commercial interests — 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 — Request for access not covering the entirety of the file — Irrelevant

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Protection of commercial interests — 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 — Limits

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Obligation to draw the applicant’s attention to the legal remedies against a decision refusing access — Non-compliance — Reference to a confirmatory decision taken in the context of another procedure known to the defendant — Lawfulness

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Obligation to state reasons — Scope — Reference to a confirmatory decision taken in the context of another procedure known to the defendant — Lawfulness — Conditions

It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In that regard, a statement of reasons in the form of a reference may be acceptable. In addition, a reference in a document to a separate document must be considered in the light of Article 296 TFEU and does not infringe the obligation to state reasons incumbent on the EU institutions. As regards a decision refusing access to documents which refers, in part, to grounds in the confirmatory decision taken following a prior request for access to documents, such a reference is not such as to infringe the obligation to state reasons, in so far as the initial decision and the confirmatory decision in the first procedure were adopted in a context which was known to the applicant, where the confirmatory decision in the first procedure had been communicated to the applicant before it submitted its request for access in the second procedure and where the applicant was able to ascertain the grounds for the refusal to grant access which had been relied on and to challenge those grounds effectively before the EU judicature. (see paras 31, 32, 35, 37, 38, 41)

As regards the obligation on an institution refusing access to a document in whole or in part to draw the applicant’s attention to the available legal remedies, the view cannot be taken that a breach of that obligation constitutes an illegality such as to lead to the annulment of the decision refusing access on that aspect, in circumstances where a reference is made in that decision to the reasoning in the confirmatory decision taken following an earlier request for access to documents and where the applicant was able to ascertain what those remedies were and bring the present action for annulment. (see para. 49)

See the text of the decision. (see paras 59-63, 88)

As regards the general presumption of confidentiality applicable to the documents of the Commission’s administrative file relating to a proceeding under Article 101 TFEU, that presumption may be applicable irrespective of the number of documents covered by the request for access. In that regard, the application of general presumptions of confidentiality has been accepted irrespective of the number of documents covered by the request for access, even when just one document was the subject of the request. It is a qualitative criterion, namely whether the documents relate to the same proceeding, that determines whether a general presumption of refusal of access may apply, and not a quantitative criterion, or in other words the number of documents, larger or smaller, covered by the request for access. Regardless of the number of documents covered by the request for access, access to the documents in a proceeding under Article 101 TFEU cannot be granted without taking account of the same strict rules as regards the handling of the information obtained or compiled in the context of such a proceeding, laid down in Regulations No 1/2003 and No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 and 102 TFEU. Moreover, the general presumption of confidentiality applicable to documents in an administrative file relating to a proceeding under Article 101 TFEU is based, in essence, on an interpretation of the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which takes account of the strict rules as regards the handling of the information obtained or compiled in the context of such a proceeding, laid down in Regulations No 1/2003 and No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 and 102 TFEU. In other words, that presumption rests on the premiss that, under the proceeding in question, there are special arrangements for access to the documents. The existence of such arrangements supports the presumption that the disclosure of such documents could, in principle, adversely affect the purpose served by the proceeding to which they relate. Consequently, the fact that the document the disclosure of which is sought is part of the administrative file relating to a proceeding under Article 101 TFEU is sufficient to justify the application of the general presumption of confidentiality to the documents concerning such a proceeding, irrespective of the number of documents covered by the request. (see paras 71-74)

As regards public access to documents, the table of contents of the Commission’s administrative file relating to a proceeding under Article 101 TFEU could be covered by a general presumption of confidentiality because of the special nature of that document. Admittedly, the table of contents is a document with special characteristics in that it does not have specific content of its own, since it merely summarises the content of the file. However, first, it is a document which organises the file relating to the proceeding at issue and thus forms part of the set of documents concerning that proceeding. Secondly, it lists, names and identifies all the documents in the file. Thirdly, in so far as the table of contents refers to each document in the file, it is a document which reflects all the documents in the file as well as certain information on the content of those documents. Fourthly, the table of contents enables the reader to see all the steps taken by the Commission in the cartel proceeding. Accordingly, the table of contents of the cartel file may contain relevant and specific information relating to the content of the file. It follows that the disclosure of the information included in the table of contents may, in the same way as disclosure of the documents themselves, undermine the interests protected by the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, in so far as it may result in sensitive commercial information or information on the ongoing investigation being communicated to a third party. (see paras 75-77)

See the text of the decision. (see paras 95-99)