Case T‑677/13

Axa Versicherung AG

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a proceeding pursuant to the competition rules — Request relating to a set of documents — Refusal to grant access — Request relating to a single document — Table of contents — Obligation to undertake a specific and individual examination — Exception relating to the protection of the commercial interests of a third party — Exception relating to the protection of the purpose of inspections, investigations and audits — Overriding public interest — Claim for damages — Obligation to state reasons’

Summary — Judgment of the General Court (Third Chamber), 7 July 2015

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and integrity of the individual — Full applicability of the provisions of Regulation No 45/2001 — Obligation on the applicant to demonstrate the need to communicate the personal data in question — Scope

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 — Application to administrative files relating to procedures for reviewing compliance with the competition rules — General presumption that disclosure of documents involved in a leniency procedure will undermine protection of the interests involved — Limits — Obligation to balance the risk that the leniency programme will be undermined with the right of an applicant considering himself damaged by a breach of the competition rules to compensation

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal of access — Requirement that the institution should examine the documents specifically and individually — Possibility of basing reasoning on general presumptions applying to certain categories of documents — Recourse to a general presumption in the case of an application in respect of a single document — Lawfulness — Conditions

EU institutions — 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 — Communication to a person envisaging a compensation action for alleged breach of Article 101 TFEU — Obligation of the applicant to establish the need for access to the documents in question — Scope

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal of access — Requirement that the institution should examine the documents specifically and individually — Possibility of basing reasoning on general presumptions applying to certain categories of documents — Limits

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

In order to justify a refusal to grant access to a document disclosure of which has been requested pursuant to Regulation No 1049/2001, it is open to the institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a similar kind are likely to apply to requests relating to documents of the same nature. Thus, in the case of a request relating to a set of documents included in the file of a proceeding pursuant to the competition rules, the Commission is entitled to presume, without carrying out an individual and specific examination of each of those documents, that their disclosure would, in principle, undermine the protection of the purpose of inspections and investigations as well as the protection of the commercial interests of the undertakings party to the proceeding, which are closely linked in that context. The application of a presumption of this kind is not restricted to requests seeking access to ‘all’ of the documents included in the file of a proceeding pursuant to the competition rules, or even to requests relating to a ‘general and undifferentiated’ set of documents within such a proceeding. On the contrary, this presumption can also be applied to requests relating to a more specific set of documents in the file, identified by reference to their common characteristics or the fact they fall within one or more general categories. Moreover, the Commission is entitled to apply such a general presumption provided that the proceeding concerned cannot be regarded as closed, either because it has not yet resulted in the adoption of a decision, or because actions for annulment were brought against that decision and are still pending when the Commission receives the request for access to the documents included in the corresponding file and takes a decision thereon. The possibility for the Commission to apply a general presumption in order to deal with a request for access relating to a set of documents means that the documents in question fall outside the scope of the obligation to disclose their content, in full or even in part. (see paras 36, 37, 39-42)

See the text of the decision. (see para. 56)

Concerning a decision refusing access to a document of which disclosure has been requested pursuant to Regulation No 1049/2001, the application of a 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 in question by virtue of Article 4(2) of Regulation No 1049/2001. To that end, it is for the applicant to rely on specific circumstances to show that disclosure of the document concerned is justified. However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the institution concerned has to examine individually all the documents to which access is requested. Such a requirement would deprive that general presumption of its proper effect, which is to permit the institution concerned to reply to a global request in an equally global manner. Moreover, the fact that the documents requested by the applicant are more than five years old is not, in itself, capable of rebutting a general presumption of non-disclosure, given that Article 4(7) of Regulation No 1049/2001 provides that the exceptions laid down in that regulation may apply for a period of thirty years and possibly beyond that period if necessary. (see paras 59, 60, 63)

Whilst it is true that all persons are entitled to claim compensation for the loss caused to them by a breach of the EU rules on competition and that such a right strengthens the working of those rules, since it discourages cartels and other, often covert, practices capable of restricting or distorting competition, thereby making a significant contribution to the maintenance of effective competition in the European Union, such general considerations are not, as such, capable of prevailing over the reasons justifying a refusal to grant access to the documents in the file of a proceeding pursuant to the competition rules based on the fact that the documents are covered, in their entirety, by a general presumption that their disclosure would in principle undermine, in particular, the protection of the purpose of inspections and investigations. In order to ensure the effective implementation of the right to compensation, there is no need for every document in the file of such a proceeding to be disclosed to the person requesting access to it under Regulation No 1049/2001 with a view to bringing an action for damages, as it is highly unlikely that the action will need to be based on all the evidence in the file relating to that proceeding. The same is true where the person requesting access to the documents in the file has already brought an action for damages, since it remains highly unlikely that the action will need to be based on the entire file. It follows that any person seeking compensation for the loss he considers was caused to him by a breach of the EU rules on competition must establish that it is necessary for him to be granted access to these documents, so that the Commission can weigh up, on a case-by-case basis, the respective interests at stake. Otherwise, the interest in obtaining compensation for the loss suffered as a result of a breach of the EU rules on competition cannot constitute an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001. (see paras 66-70, 163)

See the text of the decision. (see paras 92, 93)

It is open to an institution which has received a request for access to documents pursuant to Regulation No 1049/2001 to base its decision on a general presumption, even though the request at issue covers only a single document. However, in that kind of situation, where the application of a general presumption is not intended to make it possible to deal with a global request in global manner, it is for the institution seeking to apply the presumption to establish whether the general considerations normally applicable to a particular type of document are in fact applicable to the document which it has been asked to disclose. That requirement does not necessarily mean that the institution has to carry out a specific assessment of the document in question. Moreover, the obligation imposed on that institution to check that the general presumption on which it intends to rely in order to deal with a request relating to a set of documents actually applies cannot be interpreted as requiring it to examine individually all of the documents to which access is requested. However, it is still necessary for the institution concerned to substantiate its refusal to give access to the requisite factual and legal standard, on the basis of a reasonably foreseeable risk of specific and actual harm to one or more of the interests protected by the exceptions laid down in Article 4(2) of Regulation No 1049/2001. Moreover, even where an institution applies a general presumption to deal with a request relating to a single document, it is obliged to disclose all or part of the documents covered by the request where it finds that the characteristics of the corresponding proceeding so permit. (see paras 94, 100, 101, 116)

Concerning a request for access under Regulation No 1049/2001 to documents relating to a leniency programme, the Commission may take the view, in essence, that disclosure of references to correspondence with undertakings seeking to benefit from the Leniency Notice could undermine the effectiveness of its leniency programme in so far as such disclosure may result in third parties becoming aware of commercially sensitive information or confidential information relating to the cooperation of the parties contained in the documents. The leniency programmes established by the Commission are useful tools to uncover and bring an end to infringements of the competition rules, thereby contributing to the effective application of Articles 101 and 102 TFEU. The effectiveness of those programmes could be compromised if documents relating to leniency proceedings were disclosed to persons wishing to bring an action for damages. The view can reasonably be taken that the prospect of such disclosure would deter persons involved in an infringement of the competition rules from having recourse to such programmes. However, although such considerations may justify a refusal to grant access to certain documents included in the file of a proceeding pursuant to the competition rules, they do not necessarily mean that access may be systematically refused, since any request for access to the documents at issue must be assessed on a case-by-case basis, taking into account all the relevant factors in the case. The fact that such a refusal is liable to prevent those actions from being brought, by giving the undertakings concerned, who may have already benefited from immunity, at the very least partial, from pecuniary penalties, an opportunity also to circumvent their obligation to compensate for the harm resulting from the infringement of Article 101 TFEU, to the detriment of the injured parties, requires that refusal to be based on overriding reasons relating to the protection of the interest relied on and applicable to each document to which access is refused. Consequently, it is only if there is a risk that a given document may actually undermine the public interest relating to the effectiveness of the leniency programme in question that non-disclosure of that document may be justified. It is therefore necessary to weigh up, on a case-by-case basis, the different interests in favour of disclosure and in favour of the protection of the documents in question. In striking that balance, account must be taken of all the relevant factors in the case and, in particular, the interest of the requesting party in securing access to the documents he seeks to have disclosed for the purpose of supporting his action for damages, in view of the other possibilities that may be open to him and the actual harmful consequences which may result from such access having regard to the public interest or the legitimate interests of other parties. Such considerations are even more relevant where a person who considers himself to be a victim of an infringement of the competition rules and who has already brought an action for damages before a national court asks the Commission for access not to the ‘leniency documents’ included in the file of the proceeding which resulted in the decision finding that such an infringement had been committed, but only to the references to those documents contained in the table of contents of the file. A complete refusal of access to such references, including their most neutral or insignificant aspects, may render it in practice impossible or at the very least excessively difficult to identify the ‘leniency documents’ listed in the table of contents and prevent the applicant from either forming an opinion on the possible need to have these documents in order to support his action for damages or, a fortiori, explaining the reasons for such a need. Compliance with this requirement is a precondition not only for disclosure of such documents and their production in legal proceedings in the context of actions for damages brought before the national courts, but also the recognition by the Commission of an overriding public interest where it receives a request under Regulation No 1049/2001. In doing so, a general and absolute refusal of access may, in practice, prevent the applicant from actually exercising the right to compensation he enjoys under the Treaty. (see paras 114, 118, 119, 121-124, 134)

Article 4(1)(b) of Regulation No 1049/2001, which establishes a specific and reinforced system of protection for persons whose personal data could, in certain cases, be disclosed to the public, requires that any undermining of their privacy and integrity must always be examined and assessed in conformity, in particular, with Regulation No 45/2001. In that regard, Article 8(b) of Regulation No 45/2001 provides, in particular, that personal data is only to be transferred to a recipient if the recipient establishes the necessity of such transfer and if there is no reason to assume that the data subject’s legitimate interests might be prejudiced. That provision applies to all requests based on Regulation No 1049/2001 seeking to obtain access to documents including personal data. Consequently, where the person who requests access to documents containing personal data does not provide any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the institution concerned is not able to weigh up the various interests at stake. (see paras 139, 141, 143)