Where the documents covered by a request for disclosure under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents fall within a particular area of EU law, such as a proceeding under Article 81 EC, the exceptions to the right of access to documents set out, in particular, in Article 4 of that regulation cannot be interpreted without taking account of the specific rules governing access to those documents, which are laid down in this instance by Regulations Nos 1/2003 and 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC.

Since those regulations do not contain a provision expressly giving one regulation primacy over the other, it is necessary to ensure that each of the regulations is applied in a manner which is compatible with the other and enables them to be applied consistently. First, while Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, that right is none the less subject to certain limits based on reasons of public or private interest. Second, Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004 lay down restrictive rules for the use of documents in the file relating to a proceeding under Article 81 EC. Accordingly, the parties to a proceeding under Article 81 EC do not enjoy unlimited right of access to the documents in the Commission’s file and third parties, with the exception of complainants, do not, under such a proceeding, have any right of access to the documents in the Commission’s file. If persons other than those with a right of access under Regulations Nos 1/2003 and 773/2004, or those who enjoy such a right in principle but have not used it or have been refused access, were able to obtain access to documents on the basis of Regulation No 1049/2001, the access system introduced by Regulations Nos 1/2003 and 773/2004 would be undermined. While the right to consult the file in a proceeding under Article 81 EC and the right of access to documents pursuant to Regulation No 1049/2001 are legally distinct, they lead to a comparable situation from a functional point of view.

Therefore, authorising generalised access, on the basis of Regulation No 1049/2001, to the documents in a file relating to a proceeding under Article 81 EC would jeopardise the balance which the EU legislature sought to ensure in Regulations Nos 1/2003 and 773/2004 between the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information to enable it to ascertain whether a concerted practice was in existence and to determine whether that practice was compatible with Article 81 EC, on the one hand, 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, on the other. It follows that, for the purposes of the application of the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, the Commission is entitled to presume, without carrying out a specific, individual examination of each of the documents in a file relating to a proceeding under Article 81 EC, that disclosure of such documents will, in principle, undermine the protection of the commercial interests of the undertakings involved in such a proceeding and the protection of the purpose of the investigations relating to the proceeding. In that regard, investigations relating to a proceeding under Article 81 EC may be regarded as completed only when the decision adopted by the Commission in connection with that proceeding is final.

That general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document by virtue of Article 4(2) of Regulation No 1049/2001. However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission must examine individually all the documents requested in each individual case, which would deprive that general presumption of its proper effect, namely to permit the Commission to reply to a global request for access in a manner equally global.

(see paras 83-90, 93, 99-101)