On 20 March 2013 the General Court ("GC") handed down its judgment in Case T-181/10 Reagens v Commission. Reagens appealed the Commission's decision to refuse access to documents on inability to pay concerning two other addressees of the cartel decision. The GC partially agreed with Reagens and held that the Commission had unlawfully refused to disclose the inability to pay requests and the Commission's first questionnaire.

Reagens and two other companies had requested that their inability to pay be taken into account in setting the fine. Reagens' request was rejected, while it was clear that one of the other companies had received a reduction. In November 2009, Reagens requested access to documents on the basis of the Transparency Regulation concerning the inability to pay, which the GC divided into five categories: (i) the requests from the other two undertakings, (ii) the Commission's first questionnaire, (iii) the undertakings' reply to the first questionnaire, (iv) the Commission's second questionnaire, and (v) the undertakings' reply to the second questionnaire.

The Commission rejected Reagens' request on the basis that all the documents fell under an exception of Article 4(2) of Regulation 1049/2001, namely the protection of the commercial interests. The Commission furthermore held that its questionnaires also fell under the exception relating to the protection of the purpose of investigations.

The GC allowed Reagens' appeal regarding documents (i) and (ii). As regards category (i), the requests for inability to pay, the GC dismissed the Commission's argument that disclosure of these requests could lead the undertakings' creditors to withdraw, since that risk existed as soon as the creditors became aware of the investigations. Moreover, the Commission could redact these requests. In addition, given that the undertakings at the time were unaware of the exact amount of the fine, the requests were necessarily abstract and any sensitive information could be redacted. The GC furthermore observed that the two first questionnaires were identical, relatively abstract and generic. As such, the Commission erred by refusing access to the non-confidential versions of the undertaking's requests and to the Commission's first questionnaire.

The GC was furthermore unconvinced that the disclosure of the documents in category (ii), the first questionnaires, would affect ongoing or future similar investigations, in view of the "standard" content of those questionnaires. In addition, the GC held that ongoing or future investigations would not be affected by the disclosure of the second questionnaires, as these were specific to each undertakingThus, the Commission had also erred in relying on the protection of the purpose of the investigation as a reason for non-disclosure.

The GC dismissed Reagens' appeal regarding document in categories (iii)-(v), stating that these documents contained specific information about the financial situation of the undertakings' concerned. As regards the undertakings' replies to the questionnaires, and the Commission's second questionnaire, the GC furthermore noted that the purpose of better preparing an action against a decision does not, as such, constitute an overriding public interest in disclosure prevailing over the protection of confidentiality.

This judgment provides further guidance on what specific documents are covered by the exceptions of the Transparency Regulation. The GC in particular demonstrates the importance of the level of detail of the documents in determining whether the exceptions of Article (4)2 apply. In view the annulment of several GC judgments concerning the access to documents under the Transparency Regulation, it should be noted that this judgment can still be appealed before the European Court of Justice.