Posted by Chantal Lavoie on 29 March 2017
In a judgment delivered today, the General Court ruled that access to documents contained in a competition case file relating to an abuse of dominance investigation must benefit, by analogy, from the same protection developed by the Court of Justice of the European Union in the context of cartels. As a result the European Commission (the Commission) may rely on a general presumption which protects from disclosure all documents contained in the Commission’s competition file, without having to carry out an individual examination of each document.
Facts of the case
The appeal was brought by Deutsche Telekom following a decision from the Commission rejecting a request to have access to documents contained in the Commission’s case file in relation to an abuse of dominance investigation. The request was made on 7 October 2014 under Article 2(1) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (Regulation 1049/2001). In its final decision of 17 February 2015, the Commission relied on the exception contained in Regulation 1049/2001 to the need to protect commercial interests and the purpose of inspections, investigations and audits as the basis for refusing to grant access to any of the documents contained in its case file.
Deutsche Telekom’s request arose following searches conducted by the Commission in June 2013 on the premises of Deutsche Telekom on suspicion of an abuse of a possible dominant position resulting in a reduction in the quality of its internet connectivity services. On 3 October 2014 the Commission closed its investigation without taking any action against Deutsche Telekom.
Summary of the judgment
The General Court rejected the appeal by Deutsche Telekom seeking annulment of the Commission’s decision refusing access to documents. The key conclusions of the judgment are as follows:
- Existing case-law in the area of cartels has recognised (i) a general presumption that the disclosure of documents contained in a Commission’s competition file may undermine the protection of commercial interests and the purpose of inspections, investigations and audits, thereby meeting in principle the exception set out in Regulation 1049/2001 to disclosure; and (ii) that this presumption should apply to all documents contained in the Commission’s file, without the need to examine whether each individual document meets the conditions for this exception to apply.
- This general presumption developed in the context of cartels should apply by analogy to abuse of dominant position cases. As a result, the Commission was right to rely on the general presumption to refuse to disclose the documents contained in its abuse of dominance case file.
- The general presumption applies to the whole set of documents forming part of the Commission’s case file, without the need to distinguish between internal documents elaborated by the Commission, documents exchanged with the parties to the investigation or documents exchanged with third parties. This means also that the Commission was under no obligation to consult with third parties to assess whether documents they provided should be disclosed or not.
- The general presumption applies whether access to the case file relates to an investigation that has been closed or is pending. Access to sensitive information provided by a party in the course of a Commission investigation must be protected even after a case is closed as it could harm its commercial interests. Providing access to the Commission’s case file could also frustrate efforts encouraging parties to come forward to provide evidence of anti-competitive behavior.
- Parties should not be entitled to gain access to documents under Regulation 1049/2001 to which they would otherwise be refused access to under relevant competition rules (namely Regulation 1/2003 and Regulation 773/2004[1]). Such an outcome would undermine the objectives and protection sought in limiting access to the file under Regulation 1/2003 and Regulation 773/2004. According to the General Court, provisions relating to access to the file under competition rules and provisions relating to access to documents under Regulation 149/2001 “lead to a comparable situation from a functional point of view”, even though they are contained in legislation pursuing different objectives.
- There exists no overriding general public interest in this instance to the exception from disclosure. The arguments raised by Deutsche Telekom did not convince the General Court because on the whole the interests relied upon were not of a general and objective nature. Save for the promotion of best practices and the improvement of compliance measures by companies to which Deutsche Telekom alluded, the other arguments were based on private interests (e.g. right to compensation for damages resulting from the investigation and right to an effective remedy).
- There is a general public interest in the public “being able to ascertain certain essential elements of Commission action in the field of competition”. However this interest does not require getting generalised access to the Commission’s case file.
- The Commission’s decision refusing access to documents in the Commission’s file was not in breach of the Charter of Fundamental Rights of the European Union (the Charter) and the obligation of transparency laid down in Article 15(3) TFEU. This is because this right contained in the Charter can only be exercised in line with the conditions and terms provided for under EU legislation which were respected. In addition, the protection of commercial interests and the protection of the purpose of inspections, investigations and audits are public interest objectives which do not appear disproportionate to the aims pursued by Regulation 1049/2001.
Commentary
The judgment is of interest because it reinforces, and extends to Article 102 cases, the presumption accepted by the Court of Justice of the European Union that all documents contained in a Commission competition file cannot be disclosed as this risks undermining the protection of commercial interests and the protection of the purpose of investigations, inspections and audits. Presumably a similar analysis would also apply to documents contained in a Commission file relating to any other type of investigation under Article 101 or Article 102 TFEU, such as an investigation into distribution agreements under Article 101 TFEU.
The General Court draws a distinction between requests for access to documents based on a request under Regulation 1049/2001 and a request for access to file based on Regulation 1/2003. Whilst recognising the different objectives pursued by these rules, the General Court was concerned to ensure that failure by a party to obtain access to the Commission’s file under competition rules could not be achieved by other means under Regulation 149/2001. This would amount to denying a meaningful co-application of both sets of EU rules.
In considering the application of the Charter, the General Court insisted on the fact that Deutsche Telekom’s request related to a request for access to documents, and not for access to the file which would have been based on Regulation 1/2003 and Regulation 773/2004. As a result, Deutsche Telekom was only entitled to rely on article 42 of the Charter relating to the right of access to documents but not on Article 41 of the Charter regarding the right to good administration which includes the right of access to the file. In any event and for completeness, the General Court dismissed the possibility that Article 41 could have been successfully invoked. The General Court emphasised that the rights contained in both Articles 41 and 42 of the Charter must be interpreted taking into account the terms and conditions for the exercise of these rights contained in EU legislation such as Regulation 149/2001 and Regulation 773/2004. The General Court concludes that Deutsche Telekom did not have a right to access to the file from the outset because this right is only granted under Regulation 773/2004 to parties to whom a statement of objections has been addressed.
This judgment of the General Court confirms the very high burden of proof which rests on undertakings, including parties under investigation, seeking access to documents contained in the Commission’s competition file. It would take overwhelming public interest reasons to reverse the general presumption, which the Commission can rely on, that disclosure would prejudice the protection of commercial interests and the protection of the purpose of inspections, investigations and audits.
[1] Regulation 773/2004 has since been amended by Regulation 2015/1348.