The discussion on third party access, particularly claimants’ access, to documents in cartel proceedings under the Transparency Regulation more or less ground to a halt early this year with the ruling by the EU Court of Justice (CoJ) in EnBW (C-365/12P, see our briefing).  Recently, however, the discussion got a little extra kick by the General Court’s (GC) ruling inSchenker (T-534/11). 

1.  Where Were We Post-EnBW? 

Access to documents in the European Commission’s (EC) file:  In EnBW, the CoJ clarified the interplay between Regulation 1/2003, which includes the fundamental rules of EC cartel proceedings, and Regulation 1049/2001 on public access to the EU institutions’ documents (the Transparency Regulation).  It noted that: 

  • According to Regulation 1/2003, it is the parties to antitrust proceedings, and to a certain extent the complainants, who have a right to access the EC’s file
  • Regulation 1/2003 and the Transparency Regulation are on equal footing – neither takes precedence over the other
  • If a third party to antitrust proceedings was able to access the EC’s file through the Transparency Regulation, the specific system put in place by Regulation 1/2003 would be undermined 

Therefore, the CoJ concluded the EC is entitled to rely on a general presumption stemming from Regulation 1/2003 that documents in an EC cartel file fall within one or more exceptions to the right of access provided in Article 4 of the Transparency Regulation – such as that their disclosure would undermine the protection of: (i) the commercial interests of the companies involved in cartel proceedings or (ii) the EC’s decision-making process. 

The CoJ acknowledged it is possible for a third party to rebut the presumption that documents are covered by one or more of the exceptions in Article 4 of the Transparency Regulation.  In this case, the third party would need to show that: (i) a specific document is not covered by the general presumption or (ii) there is an overriding public interest in disclosure.  However, regarding the former, there are arguably few documents in an EC cartel file that would not fall under the exceptions in the Transparency Regulation.   As for the latter, the CoJ clarified that a party’s interest in compensation for the damage incurred by a cartel does not constitute an overriding public interest. 

Access to the confidential version of the EC’s decision:  In The Netherlands v. Commission (T-380/08, see our briefing), issued before EnBW, the GC recognized that the EC could rely on the general presumption that the confidential version of an EC decision is covered by one or more of the exceptions in Article 4 of the Transparency Regulation. 

2.  The Final Piece of the Information Puzzle 

It appeared that the access to documents discussion was over – until Schenker, which tied up the loose ends.  Schenker AG (Schenker), the customer of certain carriers involved in the EC’s Airfreight cartel investigation, asked the EC to provide it with: (i) full access to its entire case file under Article 2(1) of Regulation 1049/2001; or, in the alternative, (ii) the confidential version of its decision; or, as a further alterative, (iii) the draft non-confidential version of its decision.  Schenker had a particular interest in the documents requested: two of the carriers addressed in the EC’s decision had filed an action against Schenker in a Dutch court, seeking a declaration that they were not liable to pay damages to it on the basis of the cartel.  The EC rejected Schenker’s request for access to its file, as well as its confirmatory application under Article 7(2) of Regulation 1049/2001.  Schenker appealed the EC’s decision before the GC. 

In its judgment, the GC looked at Schenker’s three alternative requests of access to the EC’s file.  The GC treated access to (i) documents in the EC’s file and (ii) the confidential version of the EC’s decision similarly.  In this regard, the GC followed the rulings in EnBW and The Netherlands v. Commission.  It confirmed that, in reply to the request for access, the EC is not required to carry out a concrete and individual examination of the documents that form part of its case file.  In principle, by disclosing the documents in its file and the confidential version of its decision, the EC would undermine the protection of the objectives of competition investigation activities, as well as the commercial interests of the undertakings involved in the proceedings.  Schenker was unable to show that it had an overriding interest in public disclosure of (i) or (ii). 

The GC then turned its attention to (iii), Schenker’s request for a copy of the EC’s draft non-confidential version of the decision (as the public version was not available yet).  The GC noted that, given the large number of confidentiality requests that the EC had received, it was not unreasonable that the EC did not have a non-confidential version of the decision to provide to Schenker nine months after the decision had been issued.  As a result, the GC did not find the EC to be negligent in its treatment of Schenker’s confirmatory application for the document with respect to those parts of the non-confidential version of the decision that the carriers maintained were confidential and should therefore be redacted from the version made publicly available.  However, the GC found that nothing stopped the EC from handing over to Schenker those portions of the draft non-confidential version of the decision that were no longer subject to confidentiality claims or disputes brought by the carriers.  The GC concluded that the EC should provide Schenker with as much of the draft non-confidential version of the decision as was possible, while it continued to deal with the final claims for confidentiality.  It annulled the EC’s decision to that effect. 

3.  Moving Forward 

The European courts appear to have placed EC cartel file documents and final confidential decisions in a “vault.”  The key to opening that vault is in showing that none of the exceptions to access to documents in Regulation 1049/2001 apply, which is a difficult exercise.  Schenkerindicates that the best that third parties can hope for is access to portions of the EC’s draft non-confidential version of the decision before the EC and the parties to the proceeding wrap-up their confidentiality claims discussions.  It also confirms that claimants for damages should seek access to the administrative file through national courts under the applicable rules of civil procedures and, until the Damages Directive becomes law, consistent with the CoJ ruling in Pfleiderer.