European Commission v Éditions Odile Jacob SAS.
Date: 2012-06-28
1. By its appeal, the European Commission seeks to have the judgment of the General Court of the European Union in Case T-237/05 Éditions Jaco b v Commission  [2010] ECR II-2245 (‘the judgment under appeal’) set aside in so far as it annuls in part Commission Decision D(2005) 3286 of 7 April 2005 (‘the contested decision’), dismissing the application of Éditions Odile Jacob SAS (‘Odile Jacob’) for access to documents relating to procedure COMP/M.2978 –Lagardère/Natexis/VUP concerning a merger.
2. By its cross-appeal, Odile Jacob seeks to have the judgment under appeal set aside in so far as it dismissed its application for annulment of the contested decision inasmuch as it refuses any access to the advice of the Commission Legal Service referred to in paragraph 1(g) of the judgment under appeal.
10. The requests for access to certain documents made by Odile Jacob are detailed as followed in the judgment under appeal:
‘1 By letter of 27 January 2005, [Odile Jacob] asked the Commission …, pursuant to Regulation … No 1049/2001 …, for access to a number of documents relating to the administrative procedure (“the procedure at issue”) which led to the adoption of Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 — Lagardère/Natexis/VUP) (OJ 2004 L 125, p. 54; “the decision on compatibility”), so that it might use them in support of its action in Case T-279/04 Éditions Odile Jacob  v Commission , pending before the Court, in which it seeks the annulment of the decision on compatibility. The documents in question were:
(a) the Commission’s decision of 5 June 2003 to initiate an in-depth investigation under Article 6(1)(c) of Council Regulation … No 4064/89 … in the procedure at issue;
(b) the full text of the sale and purchase agreement signed on 3 December 2002 by Natexis Banques populaires SA, of the one part, and Segex Sarl and Ecrinvest 4 SA, of the other part;
(c) all the correspondence between the Commission and Natexis Banques populaires between September 2002 and the date of notification of the concentration, 14 April 2003;
(d) all the correspondence between the Commission and Lagardère SCA [(“Lagardère”)] between September 2002 and the date of the said notification;
(e) the contract under which Natexis Banques populaires acquired ownership of the shareholdings and assets of [VUP] from Vivendi Universal SA on 20 December 2002;
(f) Lagardère’s promise of 22 October 2002 to purchase VUP from Vivendi Universal;
(g) all the Commission’s internal memoranda relating, exclusively or otherwise, to the application of Article 3(5)(a) of Regulation No 4064/89 to the acquisition of VUP’s assets by Natexis SA/Investima 10 SAS, including memoranda exchanged between the Commission’s Directorate-General (DG) for Competition and its Legal Service;
(h) all the correspondence between the Commission and Natexis relating, exclusively or otherwise, to the application of Article 3(5)(a) of Regulation No 4064/89 to the acquisition of VUP’s assets by Natexis/Investima 10.
2 By letter of 27 January 2005, [Odile Jacob] sent the Commission a request for access to another set of documents, so that it might use them in support of its action in Case T-452/04 Éditions Odile Jacob  v Commission , pending before the Court, in which it seeks the annulment of the Commission’s decision of 30 July 2004 on the approval of Wendel Investissement SA as purchaser of the assets sold by Lagardère, in accordance with the decision on compatibility (“the approval decision”). The documents in question were:
(a) the Commission’s decision approving the appointment of the trustee charged with ensuring the observance of the commitments entered into by Lagardère at the time when the concentration was authorised by the decision on compatibility;
(b) the mandate conferred by Lagardère upon Salustro Reydel Management SA to ensure the observance of the commitments entered into by Lagardère at the time when the concentration was authorised by the decision on compatibility;
(c) any requests by the Commission for amendment of the draft mandate and Lagardère’s replies thereto;
(d) the mandate conferred by Lagardère upon the Hold Separate Manager, responsible for the management of the assets in accordance with the decision on compatibility;
(e) the Commission’s decision approving the appointment of the Hold Separate Manager;
(f) the draft agreement signed on 28 May 2004 by Lagardère and Wendel Investissement on the repurchase of the transferred assets;
(g) Lagardère’s letter to the Commission of 4 June 2004 seeking approval of Wendel Investissement as the repurchaser of the transferred assets;
(h) the request for information that the Commission sent to Lagardère on 11 June 2004 pursuant to Article 11 of Regulation No 4064/89, designed to enable the Commission to assess whether the conditions for approving the company Wendel Investissement had been satisfied;
(i) Lagardère’s reply of 21 June 2004 to that request for information;
(j) the trustee’s report assessing Wendel Investissement’s proposal to act as purchaser of the transferred assets against the approval criteria, submitted to the Commission on 5 July 2004.
3 By fax dated 15 February 2005, the Director-General of the Competition DG sent [Odile Jacob] the Commission’s letter of 5 February 2004 approving the appointment of the trustee and the Hold Separate Manager (the documents referred to in paragraph 2(a) and (e) above), and informed it that the remaining documents could not be sent to it as they were covered by the exceptions laid down in the first to third indents of Article 4(2) and in the second subparagraph of Article 4(3) of Regulation No 1049/2001 and there was no overriding public interest in their disclosure.
4 By letter of 18 February 2005, [Odile Jacob] made a confirmatory application (“the request for access”) concerning the documents to which it had been denied access.
5 On 14 March 2005, the Secretary-General of the Commission informed [Odile Jacob] that the time-limit for replying to its request would be extended, in accordance with Article 8(2) of Regulation No 1049/2001, until 7 April 2005, because of the complexity of the request for access and the number of documents sought.’
109. The present case concerns the relationship between Regulation No 1049/2001 and other rules, namely Regulation No 4064/89, which governs a specific field of European Union law. Those regulations have different objectives. The first is designed to ensure the greatest possible transparency of the decision-making process of the public authorities and the information on which they base their decisions. It is thus designed to facilitate as far as possible the exercise of the right of access to documents, and to promote good administrative practices. The second is designed to ensure compliance with the duty of professional secrecy in merger control proceedings which have a Community aspect.
110. Those regulations do not contain a provision expressly giving one regulation primacy over the other. Accordingly, it is appropriate to ensure that each of those regulations is applied in a manner compatible with the other and which enables a coherent application of them.
111. In accordance with the case-law of the Court, although Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, that right of access is nevertheless subject, in the light of the regime of exceptions laid down in Article 4 thereof, to certain limits based on reasons of public or private interest (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 51).
113. In that regard, it must be noted that a European Union institution, when assessing a request for access to documents held by it, may take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001.
116. It is true that, in order to justify refusal of access to a document, it is not sufficient, in principle, for that document to fall within an activity or an interest mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article. However, it is open to the institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (see Commission  v Technische Glaswerke Ilmenau , paragraphs 53 and 54 and the case-law cited).
117. As regards procedures for reviewing State aid, such general presumptions may arise from Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1), which specifically regulates the field of State aid and which contains provisions concerning access to information and to documents obtained in the context of the investigation and aid review proceedings (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraphs 55 to 57).
118. Such general presumptions are applicable to merger control proceedings because the legislation governing those procedures also lays down strict rules as regards the treatment of information obtained or established in those proceedings.
119. Articles 17 and 18(3) of Regulation No 4064/89 and Article 17 of Regulation No 447/98 restrict the use of information in merger control proceedings, by limiting access to the file to ‘parties directly involved’ and ‘other involved parties’, subject to the legitimate interest of the undertakings concerned in the non-disclosure of their business secrets, and by requiring that the information gathered is used only for the purposes of the relevant request for information, review or hearing, and that the information which, by its nature, is covered by the duty of professional secrecy is not disclosed. Those provisions have been repeated, in essence, in Articles 17 and 18(3) of Regulation No 139/2004 and in Article 17 of Regulation No 802/2004.
120. It is true that the right to consult the administrative file in the context of merger control proceedings and the right of access to documents, pursuant to Regulation No 1049/2001, are legally distinct, but 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 all the observations and documents submitted to the Commission (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 59).
121. In those circumstances, generalised access, on the basis of Regulation No 1049/2001, to the documents exchanged in such a procedure between the Commission and the notifying parties or third parties would, as the Commission has pointed out, jeopardise the balance which the European Union legislature sought to ensure in the merger regulation between the obligation on the undertakings concerned to send the Commission possibly sensitive commercial information to enable it to assess the compatibility of the proposed transaction with the common market, 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.
122.  If persons other than those entitled to have access to the file by the rules on merger control proceedings, or those who could be regarded as involved parties but have not used their right of access to the information or have been refused access, were able to obtain access to the documents relating to such a procedure on the basis of Regulation No 1049/2001, the system introduced by that legislation would be undermined.
123. Consequently, for the purposes of interpretation of the exceptions under the first and third indents of Article 4(2) of Regulation No 1049/2001, the General Court should have acknowledged the existence of a general presumption that disclosure of documents exchanged between the Commission and undertakings during merger control proceedings undermines, in principle, both protection of the objectives of investigation activities and that of the commercial interests of the undertakings involved in such a procedure (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 61).
126. The general presumption referred to above does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001 ( Commission  v Technische Glaswerke Ilmenau , paragraph 62).
128. In that regard, it must be pointed out that, as in the situation giving rise to the judgment in Commission  v Technische Glaswerke Ilmenau  (see, in particular, paragraphs 14 and 22 of that judgment), legal proceedings before the General Court were ongoing, in the present case, when the request for access to the documents at issue was made. It is common ground that those documents were requested by Odile Jacob in order to be used in support of its action in Case T-279/04, pending before the General Court when the request for access was made.
130. In a situation such as that in the present case, where the institution concerned could, according to the result of the legal proceedings, be called upon to recommence its investigation activities with a view to the eventual adoption of a new decision on the merger in question, it is appropriate to accept that there is a general presumption that the obligation which is placed on that institution to disclose, during that procedure, internal memoranda such as those referred to in paragraph 127 of this judgment would seriously undermine the institution’s decision-making process.
131. Such an assessment is also valid as regards the legal advice referred to in paragraph 1(g) of the judgment under appeal, over and above the considerations appropriately set out by the General Court in paragraph 160 of the judgment under appeal.
133. Thirdly, as regards the argument alleging incorrect interpretation of Article 4(6) of Regulation No 1049/2001 concerning the right of partial access, it must be noted that the general presumptions referred to in paragraphs 123, 130 and 131 respectively of this judgment indicate that the documents covered by them do not fall within an obligation of disclosure, in full or in part, of their content.
145. In that regard, it must be borne in mind that, under the last sentence of Article 4(2) and Article 4(3) of Regulation No 1049/2001, only an overriding public interest can take priority over the need to protect the interests set out in paragraphs 2 and 3 of that article.
146. Odile Jacob expressly stated in its originating application that the documents at issue would be able to enable it to present more convincing arguments in its actions for annulment which it had brought against the decision on compatibility and the approval decision. Accordingly, Odile Jacob has failed to demonstrate any overriding public interest justifying disclosure of the documents at issue and this plea in law must be rejected as unfounded.