Court of Justice restricts access to Documents in Antitrust Cases

The Court of Justice of the European Union recently decided to restrict third party access to documents in antitrust cases (in particular by damages claimants) under the EU general rules on access to administrative documents, by overruling a judgement of the EU General Court regarding an access request to the Commission’s file in the gas insulated switchgear cartel¹. Companies harmed by illicit behaviour will have to rely on specific competition law rules on access to documents, such as those of the future EU damages actions directive.

The Transparency Regulation and the Document access request

Following a 2007 Commission infringement decision fining several electrical components international companies (such as Siemens and ABB) for participating in a cartel regarding gas insulated switchgear, EnBW, a German energy distribution company, requested the Commission to provide access to the documents in the Commissions’ file in order to support a judicial damages claim action before the national courts for harm caused by the concerted practices of price fixing and market sharing. This request was based on the general right of access to documents of the European Union institutions enshrined in Regulation (CE) no. 1049/2001(“Transparency Regulation”).

The Transparency Regulation establishes a general right of access by the public to documents of the European institutions. In order to guarantee the “widest possible access” to documents, the exceptions to the general rule of accessibility to institution’s documents are exhaustive and are usually applied restrictively by the European courts. Among the exceptions, the possibility of refusal is granted to the institutions in cases where disclosure would undermine the protection of:

(i) commercial interest of a natural or legal person;
(ii) court proceedings and legal advice; and
(iii) the purpose of inspections, investigations and audits, unless there is an overriding public interest in the disclosure.

The Commission denied, in June 2008, access to the documents in the file (including documents submitted by the defendants in their leniency applications), arguing that the categories of documents requested by EnBW were covered by the exceptions provided by the Transparency Regulation, in particular those relating to the protections of business secrets and the inquiry activities of the Commission. Nonetheless, the General Court annulled the decision in May 2012, concluding that the Commission could not rely in a presumption of applicability of the exceptions and should have undertaken a concrete and individual examination of the application of the exception to each document concerned. The Commission disagreed with the General Court’s judgement and filed an appeal to the Court of Justice.

The decision of the Court of Justice

The judgement of the Court concerns, essentially, the question of whether the Commission, when denying access to the file in antitrust cases to third parties harmed by the prohibited conducts (in order to substantiate their damages claims), can rely on a general presumption that all the documents in the file are covered by the exceptions in the Regulation or, on the contrary, the Commission must undertake a concrete and individual examination of each document.

According to the Court, the Commission has the right to assume that disclosure of documents in antitrust cases may, in principle, undermine the protection of commercial interests of the companies involved in the cartel proceedings, as well as the Commission’s investigation activities. The Court noted that antitrust proceedings are regulated by specific rules which pursue different objectives from the those safeguarded by the Transparency Regulation, and that the Commission must ensure the respect of the rights of defence of the parties concerned and the diligent handling of complaints, as well as the respect for the obligation of professional secrecy.

The Court of Justice thus concluded for the existence of a general presumption that the documents comprised in Commission proceedings relating to Article 101 TFEU violations are covered by the exceptions established by the Transparency Regulation (similarly to its previous case law relating to state aid and merger control), allowing the Commission to deny access to those documents, unless if the third party rebuts the presumption and demonstrates that there is an overriding public interest in the disclosure of a certain document.

Commentary

In the specific case of access to documents in cartel cases, there is a tension between the general right of access to documents of the EU Institutions, established by the Transparency Regulation (especially relevant in this case, considering that the documents were instrumental for exercising the right of compensation of parties injured by cartel practices, recognised by settled case law of the Court of Justice) and, on the other hand, the need to preserve the effectiveness of the leniency procedure and, ultimately, of the Commission investigations in cartel cases.

The leniency procedure, through which companies that participated in cartel can obtain immunity or reduction in the fine should they provide evidence of the existence of the illegal conduct, is a fundamental tool in cartel investigations, by allowing the Commission to become aware of the existence of agreements or concerted practices which would, otherwise, hardly be discovered.

The judgment of the Court of Justice, by excluding the application of the Transparency Regulation (applicable in general to the documents of the European Institutions), clearly favoured the safeguard of the leniency procedure.

In any case, and even though this decision apparently seems to have made the access to documents by parties injured by cartel conducts more difficult, the Court may have in fact been aware of the more favourable access rules of the upcoming EU directive on damages actions for competition law infringements. The future directive will very likely establish the right to obtain the elements necessary to prove the existence of the illegal conduct, both directly from the participants in the cartel as well as from the competition authorities (not even excluding, in certain cases, the disclosure of leniency application or settlement proposals). It is expected that, further to the recent political agreement of the European Parliament and the of Council, the new directive will be adopted in the next few months².

This article was co-written with lawyer Leonor Bettencourt Nunes.

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