The fact that an investigation concerning the application of Article 101 TFEU is conducted by a public authority of a Member State and not an EU institution does not affect the inclusion of documents sent to the Commission by that authority on the basis of Article 11(4) of Regulation No 1/2003 within the scope of the third indent of Article 4(2) of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents. It does not appear from the wording of that provision that the inspections, investigations and audits referred to are limited to those of the institutions of the European Union, unlike Article 4(3) of the regulation which seeks to protect the institution’s decision-making process. Since it is possible for the legitimate interests of the Member States to be protected on the basis of the substantive exceptions laid down in Article 4(1) to (3) of that regulation, those exceptions must be analysed as seeking to protect not only the activities of the EU but also a Member State’s won interests, such as the protection of inspection, investigation and audit activities pursued by the authorities of that Member State.

In a proceeding opened by a national competition authority under Article 101 TFEU, when determining whether one or more undertakings have engaged in collusive behaviour which may significantly affect competition, that authority gathers commercially sensitive information about the commercial strategies of the undertakings concerned, their sales figures, their market shares or their business relations, with the result that access to documents in such proceedings can undermine the protection of the commercial interests of those undertakings within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001.

There is a general presumption according to which the disclosure of documents sent under Article 11(4) of Regulation No 1/2003 in principle undermines both the protection of the commercial interests of the undertakings to which the information at issue relates, as well as the closely-linked protection of the purpose of investigations of the national competition authority concerned, within the meaning of the first and third indents of Article 4(2) of Regulation No 1049/2001.

Thus, Regulation No 1/2003 is designed, inter alia, to safeguard the confidentiality of information and the observance of the obligation of professional secrecy in proceedings under Article 101 TFEU, particularly in the context of the information arrangement established within the network of public authorities ensuring compliance with the EU competition rules. That objective is justified, in particular, by the fact that such proceedings involve potentially sensitive commercial information, as pointed out in recital 32 of Regulation No 1/2003. As far as concerns access to documents, Regulation No 1/2003 therefore pursues a different objective to that pursued by Regulation No 1049/2001, which is designed to facilitate as far as possible the exercise of the right of access to documents and to promote good administrative practice by guaranteeing the greatest possible transparency in the decision-making process of public authorities and the information on which they base their decisions.

Moreover, that presumption continues to apply after the definitive closure of the proceedings conducted by the national competition authority. In the first place, the proper working of the information exchange arrangement, established within the network of public authorities ensuring compliance with the EU competition rules, requires that the information thus exchanged remain confidential. In the second place, the limitation of the period during which a general presumption applies cannot, in this specific context, be justified by the right to compensation to which those harmed by an infringement of Article 101 TFEU are entitled. The documents at issue, namely the decision contemplated by the national competition authority and the summary of the case, the submission of which is provided for in Article 11(4) of Regulation No 1/2003, do not concern an investigation by the Commission, but an investigation carried out by a national competition authority. It is the national competition authority’s investigation file, rather than the documents at issue, that could, where appropriate, provide the necessary evidence on which to base a claim for compensation, even if the documents refer to such evidence.

(see paras 60-62, 64, 77-79, 82)