European Commission v Agrofert Holding a.s.
Date: 2012-06-28
7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’
4. Article 17 of Regulation No 139/2004, headed ‘Professional secrecy’, reads as follows:
‘1. Information acquired as a result of the application of this Regulation shall be used only for the purposes of the relevant request, investigation or hearing.
2. Without prejudice to Article 4(3), Articles 18 and 20, the Commission and the competent authorities of the Member States, their officials and other servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States shall not disclose information they have acquired through the application of this Regulation of the kind covered by the obligation of professional secrecy.
…’
5. Article 18(3) of that regulation provides:
‘The Commission shall base its decision only on objections on which the parties have been able to submit their observations. The rights of the defence shall be fully respected in the proceedings. Access to the file shall be open at least to the parties directly involved, subject to the legitimate interest of undertakings in the protection of their business secrets.’
6. Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 (OJ 2004 L 133, p. 1) was adopted under the power conferred by Article 23(1) of the latter regulation. Article 17 of Regulation No 802/2004, entitled ‘Access to the file and use of documents’, provides:
‘1. If so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections, for the purpose of enabling them to exercise their rights of defence. Access shall be granted after the notification of the statement of objections.
2. The Commission shall, upon request, also give the other involved parties who have been informed of the objections access to the file in so far as this is necessary for the purposes of preparing their comments.
3. The right of access to the file shall not extend to confidential information, or to internal documents of the Commission or of the competent authorities of the Member States. The right of access to the file shall equally not extend to correspondence between the Commission and the competent authorities of the Member States or between the latter.
4. Documents obtained through access to the file pursuant to this Article may only be used for the purposes of the relevant proceeding pursuant to Regulation (EC) No 139/2004.’
Background to the dispute and the decision refusing access to the documents
7. The judgment under appeal contains the following findings:
‘1 By decision of 20 April 2005, the Commission … authorised, pursuant to Article 6(1)(b) [of Regulation No 139/2004], the planned acquisition, by way of purchase of shares, of the Czech company Unipetrol by the Polish company [PKN Orlen], which had been notified to the Commission on 11 March 2005.
2 By letter of 28 June 2006, the applicant, Agrofert Holding a.s. (“Agrofert”), requested the Commission to grant it access to all unpublished documents concerning the notification and pre-notification procedure in respect of the acquisition of Unipetrol by PKN Orlen, on the basis of Regulation No 1049/2001.
...
4 By letter of 2 August 2006, … the Commission’s Directorate General (DG) “Competition” refused to grant the request for access to the documents. After pointing out that the request was general in nature, it expressed the view that the documents in question were covered by the exceptions laid down in Article 4(2) and (3) of Regulation No 1049/2001. It added that disclosure of documents originating from the notifying parties and from third parties would be contrary to the obligation of professional secrecy laid down in Article [339 TFEU] and Article 17(1) and (2) of [Regulation No 139/2004]. It also stated that partial access to the documents was not possible and that no argument capable of establishing the existence of an overriding public interest in disclosure had been adduced.
5 By letter of 18 August 2006, the applicant submitted a confirmatory application to the Commission ... It challenged the Commission’s refusal, claiming, inter alia, that it should have been granted partial access to the requested documents. In addition, it asserted that there was an overriding public interest justifying disclosure of the documents in question, consisting in the damage which it and the minority shareholders of Unipetrol had suffered.
...
9 By [the contested decision], the Secretariat-General of the Commission confirmed the refusal to grant access to the documents in respect of the four categories of documents identified.
10 Firstly, the Commission takes the view that the documents exchanged between it and the notifying parties contain commercially sensitive information relating to the commercial strategies of the notifying parties, their sales volumes, their market shares or customer relations. Accordingly, the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001, concerning the protection of commercial interests, applies … It also refers to Article 17 of Regulation [No 139/2004] with regard to the obligation of professional secrecy … The Commission adds that, since the objective of the merger investigation procedures is to ascertain whether a notified operation does or does not give the notifying parties market power which is likely to have a significant effect on competition, all documents supplied by the notifying parties in the context of such a procedure necessarily relate to commercially sensitive information.
11 The Commission also takes the view that the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, which concerns in particular the protection of investigations, is applicable here. According to the Commission, the parties involved in merger proceedings must be entitled to a legitimate expectation that sensitive information contained in the documents which they have provided will not be disclosed. The Commission takes the view that disclosure of the documents in question would undermine the climate of mutual trust between it and undertakings …
12 Secondly, the Commission is of the opinion that the documents exchanged between it and third parties come within the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001 for the same reasons as those advanced in relation to the documents exchanged between it and the notifying parties.
…
14 Fourthly, the Commission identifies the following internal documents:
– … (Document 1);
– an inter-service consultation note enclosing a draft decision on the notification (Document 2);
– a reply from the Legal Service relating to the above consultation note (Document 3);
– an exchange of e-mails between the competent Commission service and the Legal Service on the draft decision (Document 4);
– replies to the above consultation note from the other Commission services concerned (Document 5);
– … (Document 6);
– … (Document 7).
15 [Documents 1, 6 and 7 were not the subject of the proceedings.]
16 With regard to Documents 2 to 5, the Commission takes the view that their disclosure would seriously undermine its decision-making process, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001. It points to the collegiate nature of that decision-making process and emphasises the need to maintain trust within its services. According to the Commission, those documents reflect freely-expressed opinions and discussions within the services. Their disclosure in the present case would seriously jeopardise independent expression of opinions … In addition, it would reduce the willingness to cooperate on the part … of the undertakings affected by the notification and third parties.
17 The Commission is of the opinion that Documents 3 and 4 are also covered by the exception based on the protection of legal advice, laid down in the second indent of Article 4(2) of Regulation No 1049/2001 …
18 Finally, the Commission adds that there is no overriding public interest which could justify the disclosure of the documents requested in the present case and that it was also not possible to grant partial access. In that regard, it points out that, as the purpose of the Commission’s investigation was to examine the market conditions surrounding the proposed merger … it was therefore not possible to identify the parts of the documents exchanged between it and the parties concerned “that do not contain non-commercial information or are not investigation-related and the reading of which in itself would make sense” … Finally, it refers to the fact that the published version of the decision on the merger in question contains, by definition, the information that could be disclosed and constitutes a partial access to the parts of the documents requested which are not covered by the applicable exceptions.’
The judgment under appeal
51. The present case concerns the relationship between Regulation No 1049/2001 and another regulation, Regulation No 139/2004, which governs a specific area of Union law. Those two regulations have different objectives. The first regulation is designed to ensure the greatest possible transparency of the decision-making process of public authorities and of 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 regulation is designed to ensure respect for professional secrecy in merger control proceedings between undertakings with a Community dimension.
52. Those regulations do not contain a provision expressly giving one regulation primacy over the other. Therefore, it is appropriate to ensure that each of those regulations is applied in a manner which is compatible with the other and which enables a coherent application of them.
53. In accordance with the Court’s case-law, although Regulation No 1049/2001 is designed to confer on the public as wide a right of access to the documents of the institutions as possible, that right is, nevertheless, subject, in the light of the exceptions laid down in Article 4 of that regulation, to certain limits based on reasons of public or private interest (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 51).
55. In that respect, it must be noted that an institution of the European Union, when assessing a request for access to documents held by it, may take into account more than one of the grounds for refusal provided for in Article 4 of Regulation No 1049/2001.
56. It is not disputed that the documents at issue do in fact fall within the scope of an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. Furthermore, in the light of the objective of the merger control proceedings, which consists in verifying whether a transaction gives the notifying parties market power which would significantly impede effective competition, the Commission gathers, in those proceedings, commercially sensitive information relating to the commercial strategies of the undertakings involved, their sales figures, market shares or customer relations, with the result that access to the documents of such proceedings may undermine the protection of commercial interests of those undertakings. Therefore, the exceptions relating to the protection of commercial interests and to that of the purpose of investigations are, in the present case, closely connected.
57. Certainly, in order to justify refusing access to a document, it is not sufficient, in principle, for the document to fall within an activity or an interest referred to in Article 4(2) of Regulation No 1049/2001; the institution concerned must also explain 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 that 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 ( Commission  v Technische Glaswerke Ilmenau , paragraphs 53 and 54, and the case-law cited).
58. As regards procedures for reviewing State aid, the Court has held that such general presumptions may arise from Council Regulation (EC) No 659/1999 of 22 March 1999 laying down rules for the application of Article [88 EC] (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).
59. Such general presumptions are applicable to merger control proceedings, because the legislation which governs those proceedings also provides for strict rules regarding the treatment of information obtained or established in the context of such proceedings.
61. 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).
62. In those circumstances, generalised access, on the basis of Regulation No 1049/2001, to the documents exchanged in the context of such a procedure, between the Commission and the notifying parties or third parties would, as the Commission pointed out, jeopardise the balance which the Union legislature wished to ensure in the EC merger regulation between the obligation on undertakings to communicate possibly sensitive commercial information to the Commission in order that it may 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 and business secrecy, for the information so provided to the Commission, on the other hand.
63. If persons other than those authorised to access the file by the merger control legislation, or those who could be considered as involved parties but who did not use their right of access to the information or who have been refused access, were able to obtain access to the documents on the basis of Regulation No 1049/2001, the scheme instituted by that legislation would be undermined.
64. Consequently, for the purpose of the interpretation of the exceptions under the first and third indent of Article 4(2) of Regulation No 1049/2001, the General Court ought to have acknowledged the existence of a general presumption that the disclosure of the documents concerned undermines, in principle, the protection of the commercial interests of the undertakings involved in the merger and also the protection of the purpose of investigations relating to the control proceedings (see, to that effect, Commission  v Technische Glaswerke Ilmenau , paragraph 61).
68. The abovementioned general presumption does not exclude the possibility of demonstrating that a given document, of which disclosure is sought, is not covered by that presumption or that there is a higher public interest justifying the disclosure of that document under Article 4(2) of Regulation No 1049/2001 ( Commission  v Technische Glaswerke Ilmenau , paragraph 62).
85. Secondly, Agrofert claimed before the General Court that an overriding public interest requires that the requested documents be disclosed, the interest in the present case being represented by the prejudice that that party would suffer as a minority shareholder in Unipetrol, acquired by PKN Orlen in the context of the merger at issue.
86. In that regard, although, indeed, as is apparent from paragraph 68 of the present judgment, the abovementioned general presumption does not exclude the right, for the interested party, to demonstrate the existence of an overriding public interest justifying the disclosure of the documents sought, it is important to note that the interest to which Agrofert refers does not constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001. Therefore, that line of argument is unfounded.