The General Court Rules on Access to Documents Communicated between the European Commission and a National Competent Authority

On 12 May 2015, the General Court of the European Union upheld a decision of the European Commission which denied access to documents exchanged during investigational proceedings with a national competent competition authority. According to Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents a citizen may submit an application for access to documents held by the institutions of the European Union. The Regulation is intended to ensure the widest possible effect to the right of public access to documents, subject to the principles, conditions and limits outlined therein. The judgment in Unión de Almacenistas de Hierros de España v. Commission (Case T-623/13) confirms that documents may not be subject to full access if disclosure could undermine (i) the protection of commercial interests and (ii) the purpose of investigations, as established by Article 4(2) of Regulation (EC) No 1049/2001 (the "Regulation"). The requested documents In 2013, the Unión de Almacenistas de Hierros de España (UAHE), a Spanish steel industry association submitted a request for access to documents held by the Directorate General of Competition of the European Commission. The concerned documents had been submitted by the Comisión Nacional de la Competencia (CNC, Spanish National Competition Commission), as part of an investigation concerning the potential infringement of EU competition law rules. The request was based on Regulation (EC) No 1049/2001. In response, the European Commission granted partial disclosure to the UAHE. Access to documents exchanged in relation to two enforcement proceedings was refused on the grounds of Article 11(4) of Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. Summaries in English of the investigational activities conducted by the CNC were also refused. Decision of the Court In accordance with recital 15 of Regulation (EC) No 1/2003, "The Commission and the competition authorities of the Member States should form together a network of public authorities applying the Community competition rules in close cooperation". The General Court considered that the confidential nature of the information exchanged within this network could be undermined by releasing the documents requested by the UAHE. The General Court held that the decision of the European Commission to invoke Article 4(2), first indent, of Regulation (EC) No 1049/2001 to refuse access to these documents was consequently justified. The documents requested were viewed as containing information of a commercially sensitive nature, which could provide insight into market strategies and therefore compromise commercial relationships. The General Court confirmed that the decision by the European Commission to invoke Article 4(2), third indent, of Regulation (EC) No 1049/2001 was justified in the absence of an overriding public interest in disclosure. The Court recalled that the purpose of this provision is to protect the effectiveness of activities, such as investigations. The decision highlights that the protection afforded by this provision may extend to both national competent authorities and EU Institutions. The judgment also recognises that a concrete and individual assessment of documents is not required where there is a general presumption that disclosure could undermine one of the interests stated in Article 4(2) of Regulation (EC) No 1049/2001. Implications The outcome of this decision demonstrates the importance that is placed on ensuring an effective mechanism for the exchange of information between a national competent authority and an EU Institution. It also makes clear that the presumption provided in Article 4(2) of Regulation (EC) No 1049/2001 may operate regardless of whether the concerned investigation has been concluded or is ongoing.

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