On 27 February 2014, the Court of Justice ruled in Case C-365/12P (Commission v. EnBW Energie Baden- Württemberg AG and Others) that the Commission is allowed to rely on general presumptions in refusing access to cartel files. This judgment annulled a previous ruling by the General Court ("GC").

The case concerned a request by EnBW on the basis of the Transparency Regulation (Regulation 1049/2001) for access to all documents in the Commission's Gas Insulated Switchgear file (Case COMP/F/38.899) . The Commission had rejected that request by relying on the exceptions provided for in the Transparency Regulation. Specifically, the Commission stated that access to the documents (i) would undermine the protection of the purpose of inspections, investigations and audits and, for part of the documents, (ii) would seriously undermine its decision-making process. EnBW appealed this decision and the GC subsequently ruled in Case T-344/08 that the Commission was not entitled to presume, without conducting a specific analysis of each document, that all the documents requested were covered by the exceptions.

Contrary to the GC, and in line with earlier judgments in state aid and merger control cases, the Court of Justice decided that in cartel cases, general presumptions may be applied by the Commission to requests for access to a set of documents. While the Transparency Regulation is designed to confer as wide a right of access as possible to documents of the institutions, the exceptions to this right of access cannot be interpreted without taking account of the specific rules on access to documents in cartel cases (Regulations 1/2003 and 773/2004) which, inter alia, ensure compliance with the duty of professional secrecy.

In cartel proceedings, third parties, with the exception of complainants, do not have any right of access to the documents in the Commission's file. If these parties were able to obtain access to documents on the basis of the Transparency Regulation, the specific access system in cartel cases would be undermined. Therefore, generalized access on the basis of the Transparency Regulation would jeopardize the balance which the EU legislature sought, and the Commission is entitled to presume that disclosure of documents in cartel files would, in principle, undermine the protection of the commercial interests of the undertakings involved and the purpose of the investigations relating to the proceeding. A proceeding may only be regarded as completed when a decision adopted by the Commission has become final.

This general presumption does not exclude the possibility that a claimant is able to demonstrate 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 such disclosure. In this case, however, the presumption was not rebutted by EnBW and the Commission was right in denying EnBW's request.

This case makes it much easier for the Commission to deny access to cartel files compared to the approach favored by the GC which levied a burdensome task on the Commission to weigh the interest of access with the interest of confidentiality for each and every document in its cartel files (which usually contain thousands of documents). Parties seeking access to the Commission's cartel files for instituting damage claims will now have to establish that it is necessary for them to be granted access to specific documents, and that they do not have any other way of obtaining evidence, in order to rebut the presumptions on which the Commission may rely.