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Access to DG Competition’s Files Through the Transparency Regulation: An Uphill Battle for Cartel Damage Claimants

March 27, 2014

The issue of whether and how Regulation n°1049/2001 on public access to EU institutions’ documents (the Transparency Regulation) applies to competition matters has divided the General Court (GC) and the Court of Justice (CoJ), the EU’s highest court.  In two prior rulings, the CoJ disapproved of the GC’s view that the Transparency Regulation could be successfully invoked by third parties in order to access State Aid and EU Merger Control administrative files. There was still uncertainty as to whether the CoJ’s position also applied in cartel cases.  As we had anticipated in our contribution to the Global Competition Review 2013,  the CoJ confirmed its position by judgment on February 27 in the EnBW cartel case, stating that the Transparency Regulation is not intended to allow for unfettered discovery of the European Commission (EC)’s cartel files by civil claimants in follow-on damages actions.

In 2007, the EC fined a number of companies for taking part in a cartel related to Gas Insulated Switchgear (GIS), a power substation device.  Following the EC’s decision, EnBW, an energy distribution company, claimed to have been harmed by the GIS cartel.  In order to gather evidence about the cartel conduct, EnBW requested that the EC grant it access to all of the documents in its administrative file, in accordance with the Transparency Regulation.  The EC declined on the basis that all the documents were covered by several exceptions to the right of access set forth in Article 4 of the Transparency Regulation.  Namely, their disclosure would undermine the protection of the purpose of the EC’s investigations and it would either (i) undermine the protection of the commercial interest of the companies involved in cartel proceedings or (ii) the EC’s decision making-process.  

The GC annulled the EC’s refusal.  Consistent with past rulings involving similar claims, the GC contended that the EC could not rely on a general presumption that all of the documents fell under one or more of the exceptions listed in Article 4 of the Transparency Regulation.  The GC considered that the the Transparency Regulation gave as wide a right of access as possible and, accordingly, the exceptions against disclosure should be interpreted strictly and narrowly. Therefore, the EC should have carried out a concrete review to establish whether the conditions for refusing disclosure were effectively met in relation to each document of its administrative file.

The EC could not come to terms with the GC’s interpretation.  Relying on the specific rules governing access to administrative files in competition matters (in particular, Regulations n°1/2003 and n°773/2004, hereafter the Antitrust Regulations), the EC appealed the GC’s ruling before the CoJ.

The specificity of access to file in EU competition law

The CoJ reasoned that the Antitrust Regulations and the Transparency Regulation are on the same footing in the EU legal order.  Accordingly, they had to be applied consistently.  If the purpose of the Transparency Regulation is to confer to EU citizens the right to access EU institutions’ documents, the extent to which access ought to be granted depends on the activities of the institution. According to the CoJ, the EC’s administrative activity in antitrust proceedings does not require the same level of disclosure as compared to the legislative activities of the EU.  Moreover, the exceptions set forth in Article 4 of the Transparency Regulation cannot be interpreted without taking account of the Antitrust Regulations’ specific rules on access to file.

In that respect, the CoJ noted that, according to the Antitrust Regulations, only the parties to cartel proceedings, and to a certain extent the complainants, have a right to access the EC’s file.  The CoJ thus found that if third parties, such as EnBW, were able to access the EC’s file through the Transparency Regulation, the specific system put in place by the Antitrust Regulations would be jeopardized.  The EC’s investigative powers, which mostly rely on the information given by companies, would be undermined by the lack of guarantee that the documents submitted (voluntarily or not) by investigated companies would be treated with the highest degree of confidentiality.

Consequently, the CoJ concluded that the EC was entitled to rely on a general presumption, stemming from the Antitrust Regulations, that the documents in a cartel file fell within one or more of the exceptions to the right of access in Article 4 of the Transparency Regulation.  The EC could thus apply a blanket approach to a third party’s broad and unspecified request, thereby sparing itself a fastidious document-by-document review of its voluminous cartel files.

Can the general presumption be rebutted?

At the same time, the CoJ did not completely rule out the possibility for a third party to rebut the presumption by showing that: (i) a specific document is not covered by the general presumption; or (ii) there is an overriding public interest in disclosure.

Regarding the first ground, there are arguably few documents in an EC cartel file that would not meet one of the exceptions of Article 4 of the Transparency Regulation and, hence, would not be covered by the presumption.  Regarding the second possible ground, the CoJ made it clear that the interest in obtaining compensation for the damage incurred by a cartel cannot in itself constitute an overriding public interest.  As a result, it is conceptually difficult to figure out under what circumstances a civil claimant would successfully rebut the presumption.

End of the GC and the CoJ diverging views

As mentioned above, the CoJ already took issue with the GC’s pro-claimant interpretation of the Transparency Regulation in State aid and Merger control cases.  In 2010, in the TGI State aid dispute, the CoJ rejected on similar grounds the GC’s pro-disclosure approach (see T‑237/02 and C‑139/07 P).  Likewise, in 2012, in the context of a merger under the EU Merger Regulation, the issue was brought in the Odile Jacob dispute.  Again, the CoJ ruled on appeal that the GC’s strict and narrow application of the exceptions of Article 4 of the Transparency Regulation ran counter to the operation of the EU Merger Regulation (see cases T‑237/05, C‑404/10 P).

As we reported here, in the Bitumen cartel case (T-380/08) last year, the GC eventually sided with the CoJ’s interpretation.  Contrasting with prior rulings, the GC recognized in Bitumen that the EC could rely on general presumptions that the confidential version of the EC’s Bitumen Decision was covered by one or more exceptions of Article 4 of the Transparency Regulation. With the EnBW judgment, the CoJ seems to have now fully closed the loop on the issue. However, the debate may not be entirely over.  Last week, the GC held the oral hearing in relation to Schenker’s appeal against the EC decision denying it access to documents from the airfreight cartel file (T-534/11). It is understood that Schenker is challenging the EC on the basis of the fundamental right laid down in Article 42 of the EU Charter, which provides in substance that EU citizens have a right of access to European Parliament, Council, and Commission documents.

For additional material on this topic and related topics, please refer to our following publications:

Access to File:  Striking the Balance Between Leniency and Private Enforcement Tools (2013);

A Step Toward More Private Competition Enforcement in the EU (2013); 

Unforeseen Risks of Disclosure in Leniency Programs (2011).

For an update on this topic see our briefing entitled, "The GC’s Ruling in Schenker: A Small Opening for Third Party Access to Cartel Decisions."