European Commission v EnBW Energie Baden-Württemberg AG.
Date: 2014-02-27
61. It should be recalled, at the outset, that Article 255(1) and (2) EC provides that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, are to have a right of access to the documents of the institutions of the European Union, subject to the principles and conditions defined in accordance with the procedure laid down in Article 251 EC. Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions. It is also apparent from that regulation, in particular from Article 4 thereof, which lays down exceptions in that regard, that the right of access is nevertheless subject to certain limits based on reasons of public or private interest (see Commission  v Technische Glaswerke Ilmenau , paragraph 51; Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others  v API and Commission  [2010] ECR I‑8533, paragraphs 69 and 70; Commission  v Éditions Odile Jacob , paragraph 111; Commission  v Agrofert Holding , paragraph 53; and Case C‑514/11 LPN and Finland  v Commission [2013] ECR, paragraph 40).
64. In accordance with well-established case-law, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) and (3) of Regulation No 1049/2001. The institution concerned must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (see, to that effect, Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco  v Council [2008] ECR I‑4723, paragraph 49; Commission  v Technische Glaswerke Ilmenau , paragraph 53; Commission  v Éditions Odile Jacob , paragraph 116; Commission  v Agrofert Holding , paragraph 57; and LPN and Finland  v Commission , paragraph 44).
65. However, the Court has acknowledged that it is open to the EU institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (see, inter alia, Sweden and Turco v Council , paragraph 50; Commission  v Technische Glaswerke Ilmenau , paragraph 54; Commission  v Éditions Odile Jacob , paragraph 116; Commission  v Agrofert Holding , paragraph 57; Case C‑280/11 P Council  v Access Info Europe  [2013], paragraph 72; and LPN and Finland  v Commission , paragraph 45).
66. Accordingly, the Court has already acknowledged the existence of such presumptions in four particular cases, namely with regard to the documents in the administrative file relating to a procedure for reviewing State aid (see Commission  v Technische Glaswerke Ilmenau , paragraph 61), the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings (see Commission  v Éditions Odile Jacob , paragraph 123, and Commission  v Agrofert Holding , paragraph 64), the pleading lodged by one of the institutions in court proceedings (see Sweden and Others  v API and Commission , paragraph 94) and the documents concerning an infringement procedure during its pre-litigation stage (see LPN and Finland  v Commission , paragraph 65).
69. The present case entails that type of situation. As is apparent from paragraphs 13 and 14 above, EnBW requested disclosure of a set of documents, identified globally, in the file relating to the proceeding which led to the adoption of the GIS decision.
70. Furthermore, it is common ground in the present case that, at the date on which EnBW requested the Commission to grant access to a set of documents in its file relating to that proceeding, proceedings for annulment of the GIS decision were pending before the General Court and, as that court indicated at paragraph 118 of the judgment under appeal, that was still the case when the contested decision was adopted.
79. Having regard to the objective of a proceeding under Article 81 EC, which is to ascertain whether or not an agreement between undertakings is compatible with the common market, the Commission is likely to gather, in the context of such a proceeding, commercially sensitive information concerning, inter alia, the commercial strategies of the undertakings concerned, their sales figures, their market shares or their business relations, so that disclosure of documents relating to such a proceeding may undermine the protection of the commercial interests of those undertakings. Accordingly, the exceptions relating to the protection of commercial interests and the protection of the purpose of investigations are, in such a procedure, closely connected (see, by analogy, Commission  v Editions Odile Jacob , paragraph 115, and Commission  v Agrofert Holding , paragraph 56).
80. The Court has already held, when it acknowledged the existence of the general presumption referred to at paragraphs 65 and 66 above in relation to requests for disclosure of documents in a file relating to a procedure for reviewing State aid or a file concerning merger control proceedings, that the Commission is entitled to presume that disclosure of such documents will, in principle, undermine the protection of the commercial interests of the undertakings involved in those proceedings as well as the protection of the purpose of investigations relating to such proceedings within the meaning of the first and third indents of Article 4(2) of Regulation No 1049/2001 (see Commission  v Technische Glaswerke Ilmenau , paragraph 61; Commission  v Éditions Odile Jacob , paragraph 123; and Commission  v Agrofert Holding , paragraph 64).
83. However, the exceptions to the right of access to documents set out, in particular, in Article 4 of Regulation No 1049/2001, cannot, where, as in the present case, the documents covered by the request for disclosure fall within a particular area of EU law — in the present case, a proceeding under Article 81 EC — 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. Those two regulations pursue different objectives from those pursued by Regulation No 1049/2001, since they are designed to ensure that the rights of defence of the parties concerned are respected and complaints dealt with diligently, while at the same time ensuring compliance with the duty of professional secrecy in proceedings under Article 81 EC, and not to facilitate as far as possible the exercise of the right of access to documents or 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 (see, by analogy, Commission  v Éditions Odile Jacob , paragraph 109, and Commission  v Agrofert Holding , paragraph 51).
84. 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 (see, by analogy, Case C‑28/08 P Commission  v Bavarian Lager  [2010] ECR I‑6055, paragraph 56; Commission  v Éditions Odile Jacob , paragraph 110; and Commission  v Agrofert Holding , paragraph 52).
87. It follows that 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 that 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 (see, by analogy, Commission v Technische Glaswerke Ilmenau , paragraph 58).
88. Those considerations must be taken into account in interpreting the first and third indents of Article 4(2) of Regulation No 1049/2001 and the second subparagraph of Article 4(3) of that regulation. 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 (see, by analogy, Commission  v Technische Glaswerke Ilmenau , paragraph 58; Sweden and Others  v API and Commission , paragraph 100; Commission  v Éditions Odile Jacob , paragraph 122; Commission  v Agrofert Holding , paragraph 63; and LPN and Finland  v Commission , paragraph 58).
89. It is true that 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. However, the fact remains that they lead to a comparable situation from a functional point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain the observations and documents submitted to the Commission by the undertakings concerned and by third parties (see, by analogy, Commission  v Technische Glaswerke Ilmenau , paragraph 59; Commission  v Éditions Odile Jacob , paragraph 120; and Commission  v Agrofert Holding , paragraph 61).
90. In those circumstances, 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 (see, by analogy, Commission  v Éditions Odile Jacob , paragraph 121, and Commission  v Agrofert Holding , paragraph 62).
91. It should be noted in that regard that, in accordance with the Court’s case-law, the administrative activity of the Commission does not require such extensive access to documents as that required by the legislative activity of an EU institution (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 60; Sweden and Others  v API and Commission , paragraph 77; and Case C‑506/08 P Sweden v My Travel and Commission [2011] ECR I‑6237, paragraph 87).
92. It follows that, in so far as concerns proceedings under Article 81 EC, a general presumption such as that referred to at paragraphs 65, 66 and 80 above may arise from the provisions of Regulations Nos 1/2003 and 773/2004 which specifically govern the right of access to documents in the Commission’s files relating to such proceedings (see, by analogy, Commission  v Technische Glaswerke Ilmenau , paragraphs 55 to 57; Commission  v Éditions Odile Jacob , paragraph 117; and Commission  v Agrofert Holding , paragraph 58).
93. In the light of the foregoing, it must be found 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 (see, by analogy, Commission  v Technische Glaswerke Ilmenau,  paragraph 61; Commission  v Éditions Odile Jacob , paragraph 123; Commission  v Agrofert Holding , paragraph 64; and LPN and Finland v Commission , paragraph 64).
95. Contrary to the finding of the General Court at paragraph 61 of the judgment under appeal, it is irrelevant in that regard that the restrictions on the right of access laid down by Regulations Nos 1/2003 and 773/2004 themselves require an assessment to be carried out on a case-by-case basis. On the other hand, what is decisive, as the Court has already held, is that those regulations lay down strict rules regarding the treatment of information obtained or established in the context of a proceeding under Article 81 EC ( Commission  v Éditions Odile Jacob , paragraph 118, and Commission  v Agrofert Holding , paragraph 59).
98. In those circumstances, having established, at paragraph 118 of the judgment under appeal, that at the date on which the contested decision was adopted, legal proceedings were pending against the GIS decision, the General Court went on to err in law, at paragraph 122 of that judgment, by finding that disclosure of the documents requested was not likely to undermine the protection of the investigations relating to the proceeding under Article 81 EC in question.
99. Contrary to the General Court’s finding at paragraph 119 of the judgment under appeal, a proceeding under Article 81 EC cannot be regarded as closed once the Commission’s final decision has been adopted irrespective of any possible future judgment by the EU judicature annulling that decision. Indeed, under Article 233 EC, the annulment of such a decision may lead the Commission to resume its investigations with a view to adopting, if appropriate, a new decision on the application of Article 81 EC, which was, moreover, the case here with regard to two of the parties concerned, as the Commission indicated at the hearing, and may therefore lead that institution to reuse information in the file relating to the annulled decision or to supplement the file with other information in the exercise of the powers conferred on it by Regulation No 1/2003. Consequently, 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.
– Whether it is possible to rebut the general presumption that the documents concerned are not to be disclosed
100. It should, however, be noted that the general presumption referred to above 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 ( Commission  v Technische Glaswerke Ilmenau , paragraph 62; Commission  v Éditions Odile Jacob , paragraph 126; Commission  v Agrofert Holding , paragraph 68; and LPN and Finland  v Commission , paragraph 66).
104. As the General Court correctly observed at paragraph 128 of the judgment under appeal, any person is entitled to claim compensation for the loss caused to him by a breach of Article 81 EC. Such a right strengthens the working of the EU competition rules, thereby making a significant contribution to the maintenance of effective competition in the European Union (see, to that effect, Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraphs 26 and 27; Joined Cases C‑295/04 to C‑298/04 Manfredi and Others  [2006] ECR I‑6619, paragraph 91; Case C‑360/09 Pfleiderer  [2011] ECR I‑5161, paragraph 28; and Case C‑536/11 Donau Chemie and Others  [2013] ECR, paragraph 23).
105. Nevertheless, such general considerations are not, as such, capable of prevailing over the reasons justifying the refusal to disclose the documents in question (see, to that effect, Sweden and Others  v API and Commission , paragraph 158).
106. In order to ensure effective protection of the right to compensation enjoyed by a claimant, there is no need for every document relating to a proceeding under Article 81 EC to be disclosed to that claimant on the ground that that party is intending to bring an action for damages, as it is highly unlikely that the action for damages will need to be based on all the evidence in the file relating to that proceeding (see, to that effect, Donau Chemie and Others , paragraph 33).
107. It follows that any person seeking compensation for the loss caused by a breach of Article 81 EC must establish that it is necessary for that person to be granted access to documents in the Commission’s file, in order to enable the latter to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favour of the protection of those documents, taking into account all the relevant factors in the case (see, by analogy, Commission  v Bavarian Lager , paragraphs 77 and 78, and Donau Chemie and Others , paragraphs 30 and 34).
108. In the absence of any such necessity, the interest in obtaining compensation for the loss suffered as a result of a breach of Article 81 EC cannot constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001 (see, to that effect, Commission  v Agrofert Holding , paragraph 86).
114. In those circumstances, since, as already noted at paragraph 99 above, the Commission may have been prompted, depending on the outcome of those proceedings, to resume its investigations with a view to the possible adoption of a new decision on the application of Article 81 EC, it is necessary to accept that there is a general presumption that any obligation placed on that institution to disclose, during those proceedings, opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001 would seriously undermine that institution’s decision-making process (see, to that effect, Commission  v Éditions Odile Jacob , paragraph 130).
132. However, EnBW has failed to show in what way access to all the documents relating to the proceeding in question is necessary for that purpose on the basis that there is an overriding public interest in disclosure of the documents under Article 4(2) and (3) of Regulation No 1049/2001. In particular, EnBW simply stated that it was ‘utterly dependent’ on disclosure of the documents in the file in question, without showing that such disclosure would have enabled it to obtain the evidence needed to establish its claim for damages as it had no other way of obtaining that evidence (see, to that effect, Donau Chemie and Others , paragraphs 32 and 44).
134. With regard to the third plea relied on by EnBW, it should be noted that it is apparent from the general presumptions referred to at paragraphs 92, 93 and 114 above that the documents covered by those presumptions fall outside the scope of the obligation to disclose their content, in full or in part (see Commission  v Éditions Odile Jacob , paragraph 133).