Case T-111/07: Action brought on 13 April 2007 — Agrofert Holding v Commission
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: European Commission, access to information, action for annulment (EU), confidentiality, exchange of information, merger, provision of documents

9.6.2007

EN

Official Journal of the European Union

C 129/21

Thirdly and finally, the applicant submits that the Commission
concluded to the absence of sufficient Community interest on
the basis of an erroneous assessment, in fact and in law, of the
circumstances of the case since:

1) the Commission failed to take into account the manifest
limited

publicly stated anticompetitive object of De Beers'
selective distribution system;

2) the Commission could not assess the anticompetitive effects
of the De Beers' distribution system without first assessing
De Beers' dominance and market power;

3) the Commission failed to take into account the numerous
elements brought to its attention in the complaint demon-
strating the inherently abusive and anticompetitive nature of
the system;

4) the Commission wrongly assessed the effectiveness of the
revised Terms of Reference for the Ombudsman that De
Beers had introduced to resolve disputes as to the implemen-
tation of the distribution system; and

5) the Commission made an error of law and a manifest error
of assessment of the facts in finding that De Beers' distribu-
tion system does not foreclose the market.

Action brought on 13 April 2007 — Agrofert Holding v
Commission

(Case T-111/07)

(2007/C 129/37)

Language of the case: English

Parties

Applicant: Agrofert Holding a.s. (Praha, Czech Republic) (repre-
sented by: R. Pokorný, lawyer)

Defendant: The Commission of the European Communities

Form of order sought

— Annulment

of Commission Decision

SG.E.3/MIB/md
D (2007) 1360 of 13 February 2007 relating to the request
for access to documents in merger Case No COMP/M.3543
— PKN Orlen/Unipetrol
and Commission Decision
16796/16797 of 2 August 2006;

— order the Commission to produce the documents in ques-

tion;

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment,
under Article 230 EC, of Commission's Decision of 2 August

2006 (hereinafter ‘Decision I’) as well as the Commission's
subsequent confirmatory decision of 13 February 2007 (herein-
after ‘Decision II’) relating to the request for access to all unpub-
lished documents relating to the notification and pre-notifica-
tion phases of the merger at stake.

The applicant claims that both decisions are contrary to Regu-
lation (EC) No 1049/2001 (1), regarding public access to Euro-
pean Parliament, Council and Commission documents (herein-
after ‘The Regulation’) as they do not fall within the exceptions
enshrined in its Article 4(2), relating to protection of commer-
cial interests, protection of the purpose of investigation, protec-
tion of Legal Advice or its Article 4(3) relating to protection of
decision-making process.

The applicant further submits that Article 4(2), first indent, of
the Regulation should not be interpreted as if the exceptions
applied to the entirety of the documents but only to the parts
due to contain business secrets or commercially sensitive infor-
mation. Thus, according to the applicant, the defendant could
have either released to the public parts of the requested docu-
ments or blackened the parts containing the sensitive informa-
tion without undermining the purpose of inspections, investiga-
tions and audits, the notifying parties and third parties right's,
legal advice or the institution's decision-
the protection of
making process.

Moreover, the applicant contends that the defendant, instead of
conducting individual examination of each document falling, in
its view, under the exception of Article 4(2), third indent, of the
Regulation, has generally refused the requested access on the
basis of the sole fact that all documents contain business secrets
and cannot be disclosed according to Article 17 of the Council
Regulation (EC) No 139/2004 (2). Such generalisation would be
contrary to Article 4(6) of the Regulation.

Besides, the applicant submits that the above-mentioned excep-
tions apply only if they are not waived by an overriding public
interest in disclosure. According to the applicant, such interest
to disclose the requested documents, deriving from the damage
suffered by the applicant and minority shareholders of
the
acquired company, exists and outweighs the exceptions to the
right of access.

The applicant, moreover, claims that Decision I and II are
contrary to Article 1 EU, second subparagraph, enshrining the
principle of openness.

Finally, the applicant submits that the defendant did not handle
the confirmatory application promptly according to Article 8(1)
of the Regulation but exceeded the time-limit for replying by
100 working days.

(1) OJ L 145, 31.5.2001, p. 43-48.
(2) Council Regulation (EC) No 139/2004 of 20 January 2004 on the
L 24,
concentrations between undertakings

(OJ

control of
29.1.2004, p. 1-22).