With a recent judgment in the case T-623/13, the General Court ratified the presumption used by the European Commission for which documents exchanged between the Commission and a national competition authority in proceedings concerning an infringement of the competition rules may harm the commercial interest of the undertakings involved and therefore are not, in principle, accessible to the public.
Art. 15.3 TFEU states that “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium”, while Regulation (EC) No 1049/2001 establishes the boundaries of this right and the principles for its exercise. Art. 4 (2) provides that exception to this right may be done in order to protect: i) commercial interests of a natural or legal person, including intellectual property, ii) court proceedings and legal advice, iii) the purpose of inspections, investigations and audits.
The applicant, the Unión de Almacenistas de Hierros de España (UAHE), sought the annulment of the express rejection of its request for access to certain documents of the proceeding. In particular, the UAHE, a professional association, asked the Commission for access to all correspondence exchanged between the Commission and the Comisión Nacional de la Competencia (CNC, Spanish National Competition Commission) concerning two procedures opened by the CNC in Spain based on supposed concerted practices.
The Commission granted access to some of the documents requested. However, it refused access to the CNC’s draft decisions concerning the two national procedures in question and to the CNC’s summaries of these cases in English. The Commission resorted to the application of Art. 4 (2) Regulation (EC) No 1049/2001, observing that there exists a general presumption that the disclosure of such documents may undermine the protection of the commercial interests of the undertakings concerned and the protection of the purpose of investigations.
The general Court confirmed the Commission’s refusal to disclose the documents on the basis of the application of the general presumption of harm to the commercial interests of the undertakings concerned by the competition authority’s procedure.
Moreover, the General Court noted that this presumption applies also when the procedure is already closed or anyway not pending. Even after the closure of the investigations, disclosing documents may undermine the commercial interests of the investigated undertakings. The Court comments on the Art. 4 (7) of the Regulation 1049/2001, reminding that this regime may apply for 30 years or even longer if the conditions for possible harm to commercial interest persist.
In confirmation of this view the Court maintains that the effectiveness of the mechanism for the exchange of information requires that the information exchanged shall remain confidential.
Finally, the Court observes that, in this case, the right to full compensation cannot justify the disclosure of the documents, since these documents do not concern an investigation by the Commission, but an investigation carried out by a national competition authority. The applicant should direct her plea to the competent national authority.
The text of the judgment is available here.
Source: Curia
ANTITRUST ENFORCEMENTDamages ActionsLEGISLATIONPRIVATE ANTITRUST ENFORCEMENTPUBLIC ANTITRUST ENFORCEMENTRegulations
