Background of the Case

The applicant, EnBWEnergie Baden-W?rttemberg AG (EnBW), is an energy-distribution company. It considers itself to have been affected by a cartel operated by producers of gas insulated switchgear (?GIS?), which was fined by Commission Decision of 24 January 2007.

On 9 November 2007, the applicant sought from the Commission, on the basis of Article 2(1) of Regulation (EC) No 1049/2001, full access to the documents relating to proceedings in Case COMP/F/38.899 ? Gas insulated switchgear. Then, following discussions with the Commission, the applicant, by fax of 11 January 2008, further clarified its request. It excluded from its demand three categories of documents: (i) all documents dealing exclusively with the structure of the undertakings concerned; (ii) all documents concerning exclusively the issue of who were the correct addressees of the Commission decision; and (iii) all documents that were drawn up wholly in Japanese.

On 30 January 2008, the Commission refused the applicant?s initial application, as amended on 11 January 2008. The applicant then made a confirmatory application, which was rejected by the Commission on 16 June 2008 (?the contested decision?).

In the contested decision, the Commission classified the documents in Case COMP/F/38.899 in the following five categories:

  1. documents provided in connection with an immunity or leniency application, namely statements from the undertakings in question and all documents submitted by them in connection with the immunity or leniency application;
  2. requests for information and parties? replies to those requests;
  3. documents obtained during inspections, namely documents seized at on-the-spot inspections at the premises of the undertakings concerned;
  4. statement of objections and parties? replies thereto;
  5. internal documents:
  1. documents relating to the facts, that is, (i) background notes on the conclusions to be drawn from the evidence gathered, (ii) correspondence with other competition authorities and (iii) consultation of other Commission departments to have been involved in the case;
  2. procedural documents, that is, inspection warrants, inspection reports, lists of documents obtained in the course of inspections, documents concerning the notification of certain documents and file notes.

The Commission explained that each of the categories fell within the exceptions provided for in the first (protection of the commercial interests of a natural or legal person) and third indent (the purpose of inspections and investigations) of Article 4(2) of Regulation No 1049/2001 and that the documents in category 5(a) also fell within the exception in Article 4(3) of Regulation No 1049/2001 (protection of the decision decision-making process). Furthermore, the Commission refused to grant partial access to the case-file because all the documents contained in the file were covered in their entirety by the exceptions listed in Regulation No 1049/2001.

On 25 August 2008, the applicant brought an action to annul the contested decision.

On 22 May 20121, the General Court upheld the action for annulment brought by EnBW. First, the General Court considered that the Commission erred in law when restricting the scope of the demand for access to documents whereas the applicant?s request was unequivocal. Second, the General Court concluded that the categories used by the Commission for the classification of the documents were artificial since it was based on the type of documents instead of the content. Third, the General Court states that the Commission misapplied the exceptions that exempt from proceeding to an individual, concrete examination of the documents. Finally, the General Court concludes that the Commission failed to establish to the required legal standard that the disclosure of the documents would undermine the very purpose of the investigation, would endanger commercial interests of the undertakings and would seriously undermine its decision-making process.

Findings of the Court

The scope of the request for access to documents

The General Court finds that the Commission erred in its restrictive interpretation of the scope of EnBW's request for access as regards internal procedural documents. The General Court notes that the applicant?s initial request and confirmatory request of 20 February 2008 has the same scope of disclosure even after the clarification sent by the fax of 11 January 2008, in that it seeks disclosure of ?all the documents in the ? Commission?s possession concerning the proceedings ? in Case COMP/F/38.899?, with the exception of the three categories of document excluded. Therefore, the Commission should have called into question the restrictive interpretation it was giving to the scope of the request for access. The General Court decides to annul the contested decision in so far it refuses the applicant access to documents classified under category 5(b).

Failure to undertake a concrete, individual examination of the content of the document requested

The General Court recalls that according to case law there are three exceptions to the obligation to undertake a concrete, individual examination of the content of the document requested:

  1. it is obvious, on the basis of a general presumption that access to documents requested had to be refused ;
  2. documents belonging to the same category if they contain the same type of information;
  3. the administrative burden entailed by a concrete individual examination? of the documents? would prove particularly heavy.

In the present case, the Commission based its decision on the first and the second exception but does not state to which documents these two exceptions apply.

First, the General Court rejects the Commission?s defence that the limitation of the request agreed by the applicant ?was insufficient in view of the amount of the work generated by a concrete, individual examination?. The General Court makes clear that the reasons for a decision must appear in the actual body of the decision and explanations given ex post facto by the Commission cannot be taken into account. Consequently, this latter argument does not amount to a reason that was decisive in the adoption of the contested decision.

Secondly, as regards the first exception to a concrete, individual assessment based on the fact that documents were manifestly covered by an exception to the right of access, the General Court recognises that there are restrictions on access to the file that may apply in particular procedures such as State aid and cartel procedures. However, this does not mean that the Commission is able to hold that all the documents in its files related to cartel procedures are automatically covered by one of the exceptions laid down in Article 4 Regulation No 1049/2011. The Commission was not entitled to assume, without undertaking a specific analysis of each document that all the documents requested were clearly covered by the exception laid down in third indent of Article 4(2) of Regulation No 1049/2001.

Thirdly, as regards the second exception the General Court observes that a single justification may be applied to documents belonging to the same category, particularly if they contain the same type of information. However, in the present case the classification neither facilitated nor simplified the Commission?s task as regards the examination of the request and the justification for its decision, since the categorisation was by document type, irrespective of the information in the documents concerned. The Commission merely stated, very briefly, that the disclosure of those documents would threaten the purpose of the investigation but did not put forward any independent reasons connected to the specific content of the documents within that category. The Commission?s division into categories was thus, in the case of categories 1, 2, 4 and 5(a), artificial. It did not reflect real differences in the content of the documents within the various categories.

In the case of category 3, the General Court concludes that it was the only category of documents defined by the Commission which served any purpose in the examination of the request for access. The General Court seems to concede that for documents seized in the course of inspections at the premises of the undertakings, the Commission can rely specifically, on the legitimate expectation of the undertakings that documents which it has obtained in the exercise of its powers are not made public but are used exclusively for the purpose of competition proceedings. In fact those documents, contrary to the documents falling within the other categories which were provided by the undertakings on a voluntary basis, are obtained against the will of the undertakings concerned during unannounced inspections. The General Court admits that the justification given by the Commission with regard to the category 3 documents is based on specific criteria which are to be taken into account when deciding whether the documents in question should be disclosed. Nonetheless, that conclusion cannot pre-empt a concrete, individual examination.

Protection of the investigation in progress (Third indent of Article 4(2) of Regulation No 1049/2001)

The General Court notes that in the present case on the date of the adoption of the contested decision, the Commission had already adopted almost 17 months earlier the GIS cartel decision and thereby closing the proceedings. So, on that date, there was no investigation in progress to prove the existence of the infringements in question which could have been jeopardised by the disclosure of the requested documents.

The General Court considers that this finding is not altered by the fact that actions were pending before the General Court against this cartel decision, with the effect that if that decision was annulled, the proceedings could be re-opened. The General Court recalls that the investigation in a given case must be regarded as closed once the final decision is adopted, regardless of whether that decision might subsequently be annulled by the courts, because it is at that moment that the institution in question has itself considered the proceedings to be completed. The General Court once again refuses to make the access dependent on uncertain events, namely the outcome of that action and the conclusions which the Commission might draw from it. Furthermore, nothing in Regulation No 1049/2001 gives grounds for assuming that EU competition policy should enjoy treatment different from other EU policies. There is thus no reason to interpret the concept of the ?purpose of investigations? differently in the context of competition policy than in other EU policies.

Protection of the Commercial interests (First indent of Article 4(2) of Regulation No 1049/2001)

As regards the question how long the information has been in existence, the General Court states that there can be no question of applying a strict rule whereby all information relating to facts in existence for a particular length of time should be regarded as no longer affecting the commercial interests of the company to which it relates. Nevertheless, the fact that the information in question has been in existence for a particular period of time increases the likelihood that the commercial interests of the companies concerned will no longer be affected to an extent that justifies the application of an exception to the principle of transparency embodied in Regulation No 1049/2001.

In the present case, the information concerning the commercial activities of the companies in question covered a period of 16 years (from 1988 to 2004) and the Commission had therefore an obligation to carry out a concrete, individual examination of the documents requested from the point of view of the exception concerning the protection of commercial interests and could not confine itself to general assessments covering all the documents.

The General Court concludes that the passage of time is likely gradually to reduce the need for protection on grounds of commercial interests of the information held in a case-file. The fact that a period of more than two years had elapsed between the grant of access to the file under Article 27(2) of Regulation No 1/2003, in April 2006, and adoption of the contested decision, on 16 June 2008, was sufficient for the Commission to be obliged to carry out a further examination of the requirements for confidentiality deriving from the protection of the commercial interests of the undertakings concerned.

Protection of the decision making process (Second subparagraph of Article 4(3) of Regulation No 1049/2001)

The General Court examines whether the Commission made an error of law in that, having refused access to documents, falling within Category 5 (a) on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, its refusal covered documents which did not contain any opinions for internal use.

According to the Commission, settled case law of the Courts of the EU have considered as internal documents containing opinions within the meaning of second subparagraph of Article 4(3) of Regulation No 1049/2001, a note sent by DG COMP to the Advisory Committee, a file note and a report concerning the consequences of a judgment and the documents relating to the preparation of that report.

For the General Court the Commission is just seeking, by means of generalisations and analogies, to equate the concept of ?opinions for internal use as part of deliberations and preliminary consultations?, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, with that of a ?document drawn up by an institution for internal use? within the meaning of the first subparagraph of that provision. The General Court considers that the Commission has failed to establish to the required legal standard that all the documents falling within category 5(a) contained opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.

Furthermore, the General Court emphasises that if the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 is to apply; the Commission had to show the decision-making process would have to be 'seriously' undermined. However, the Commission?s arguments are insufficient to justify the refusal to access to the documents requested.

Comments

Throughout this case, the General Court explains once again that the derogations from the principle of the widest possible public access to documents must be interpreted and applied strictly, in particular when related to antitrust procedures. The General Court does not admit general assertions that the disclosure of documents requested by a damage claimant will undermine the interests protected by the Transparency Regulation but instead, it requires the Commission to conduct a serious and a specific analysis of each documents requested.