2.

In my view, several groups of problems must be distinguished in considering the question of the admissibility of the application for annulment: the question whether the defendant's contested measure is a purely factual step or a decision; the question whether the defendant's conduct constitutes a definitive decision for the purposes of Article 173 of the EEC Treaty or merely a provisional measure intended to pave the way for a final decision; the question whether the applicants have an interest which the law protects and, in particular, whether the application has become devoid of purpose in that regard inasmuch as the defendant has actually given the intervener access to the documents and the applicants should thus seek redress by bringing an action for damages. (a) In the first place, a decision must be distinguished from a purely factual step. In that respect, the intervener is correct in arguing that infringement of a right protected by law must be distinguished from a change in legal position. The question whether an application for access to documents calls for a decision cannot be answered in general terms, either in the affirmative or in the negative, in particular where access has already been granted by the actual handover of the documents. In that regard, the crucial factor is whether the application for access to documents is automatically granted by a mere physical act or whether the authorities responsible for granting such access are required to take other factors into consideration. In order to make the necessary distinction, the individual parts of the procedure at issue in this case must be described by reference to their legal context. In the present case, the intervener applied for access to documents which the defendant had obtained in competition proceedings and which were therefore covered by the obligation of professional secrecy under Article 214 of the EEC Treaty and Article 20 (2) of Regulation No 17. The defendant invited the applicants to state their views on the intervener's application. After considering their views, the defendant decided which documents were to be transmitted to the intervener in their entirety, which were to be transmitted in part and which were not to be transmitted at all. The conclusion to be drawn from this is that the Commission weighed various interests against one another: the protection of professional secrecy, the applicants' interest in protecting their business secrets, the intervener's need for information for the purposes of the hearing and the duty of effective supervision to ensure compliance with the competition rules of the EEC Treaty. Having weighed those interests, the defendant finally decided which of the applicants' internal business documents were to be disclosed to the intervener for the purposes of the competition proceedings that were pending, that is to say, it determined the extent to which the applicants' interest in the protection of their business and professional secrets had to be overridden by the effective implementation of the competition rules of the EEC Treaty. The defendant thereby drew a distinction between the legal position of the applicants and that of the intervener, and at the same time determined the extent to which it could depart from the obligation of professional secrecy in the interests of the implementation of Community competition law. Hence, from a legal point of view, the essential aspect of the Commission's measure is not the actual handover of the documents to the intervener but the legal assessment of the extent to which access could be granted to such documents. The defendant took a decision, which was binding, as to which of the applicants' documents could be made available to the intervener. In law, therefore, it drew the dividing line between the intervener's right to information and the applicants' right to protection in respect of the confidentiality of their business documents. It therefore adopted a measure the legal effects of which were binding on, and which affected the interests of, the applicants by bringing about a change in their legal position. Hence that measure constitutes a decision. The fact that the decision was not drawn up in writing and that its terms were notified to the applicants four days after the intervener had actually been granted access to the documents does not alter the fact that it is a decision, because the form in which a decision is cast is immaterial. ( 7 ) (b) It must also be considered whether that decision can be contested separately by an action before the Court. It has been held by the Court that in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review only if it is a measure definitively laying down the position of the authorities on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision. ( 8 ) Doubts as to whether the defendant's decision can be contested separately before the Court may arise inasmuch as that decision marked off the limits of business and professional secrecy from the need to implement the rules of competition, that is to say it defined the Commission's own powers of investigation. In that regard, it may be argued that the measure in question is intended to pave the way for the final decision and that it is therefore comparable to the initiation of competition proceedings or communication of the statement of objections, as the Court held in its judgment of 11 November 1981. ( 9 ) Those objections cannot be upheld, however, because the decision adopted by the defendant has several aspects. In addition to deciding the extent to which the protection of business secrets is overridden by the defendant's duty to carry out an investigation, it also defines, as has been shown, the legal position of the applicants and the intervener. In that respect, there is an associated, and legally autonomous, aspect of the defendant's decision which differs from those aspects with which the decision on the substance is concerned in competition proceedings. It involves not just paving the way for the Commission's final decision but also defining the legal position of the undertakings involved in the case. For that reason, that part of the defendant's decision cannot be compared with a decision initiating a procedure or communicating a statement of objections. However, since the various aspects of a single measure are inseparable, the defendant's decision granting the intervener access to certain of the applicants' business documents is a decision which may be contested separately under Article 173 of the EEC Treaty. The general scheme of Regulation No 17 also supports the conclusion that the measure adopted by the defendant is a decision within the meaning of Article 173 of the EEC Treaty. In all cases in which the defendant cannot count on the voluntary cooperation of the undertakings concerned and must apply coercive measures, such measures are to take the form of a decision which must indicate inter alia that the undertakings concerned are entitled to have the decision reviewed by the Court of Justice. That is required by Article 11 (5) of Regulation No 17 with regard to requests for information and by Article 14 (3) with regard to investigations. That principle was upheld by the Court in its judgment of 17 January 1980 in which it held that the Commission had the power, not expressly provided for in Regulation No 17, to adopt interim protective measures during the administrative procedure. Such decisions ‘must be made in such a form that an action may be brought upon them before the Court of Justice by any party who considers he has been injured’. ( 10 ) (c) At the hearing a further problem was raised, namely whether the application had been disposed of by the fact that the intervener had actually been granted access to the documents and the knowledge thereby acquired could not be erased by declaring the defendant's decision void, with the result that the only course which might possibly still be open to the applicants was an action for damages. I do not agree with that argument for two reasons. The very fact that some of the applicants' business documents were actually made available to the intervener and are still in its possession must be regarded as having an adverse effect on the applicants' legal position, which can be remedied only by a declaration that the defendant's decision is void. It is true that in these proceedings the Court cannot directly order the intervener to return the applicants' documents to the defendant. The latter would, however, be required, under Article 176 of the EEC Treaty, to endeavour to secure the return of those documents. That would remedy the adverse effect of the handover of the documents on the applicants' legal position. A further consequence of an annulment of the defendant's decision would be that the intervener would no longer be able to rely, either in the proceedings before the High Court of Justice or at the hearing organized by the Commission, on information unlawfully communicated to it. Since it cannot be ruled out that that would affect the legal position of the applicants in the competition proceedings, I am of opinion that the application is not disposed of by the fact that access to the documents was actually granted. I therefore consider the application for annulment admissible.