Case C‑365/12 P

European Commission

v

EnBW Energie Baden-Württemberg AG

‛Appeal — Regulation (EC) No 1049/2001 — Access to documents of the institutions — Documents relating to a proceeding under Article 81 EC — Regulation (EC) No 1/2003 and Regulation (EC) No 773/2004 — Access refused — Exceptions relating to the protection of investigations, commercial interests and the decision-making process of the institutions — Obligation upon the institution concerned to carry out a specific, individual examination of the content of the documents covered by the request for access’

Summary — Judgment of the Court (Third Chamber), 27 February 2014

1. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Protection of commercial interests — Application to administrative files relating to proceedings for reviewing concerted practices — Documents exchanged between the Commission and notifying parties or third parties — General presumption of the application of the exception to the right of access to all the documents in the administrative file — Rebuttal of that general presumption — Limits

   (Arts 15(3) TFEU and 101(1) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (3); Council Regulation No 1/2003; Commission Regulation No 773/2004)

2. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Application to administrative files relating to proceedings for reviewing concerted practices — General presumption of the application of the exception to the right of access to all the documents in the administrative file — Rebuttal of that general presumption — Access by a person adversely affected by a concerted practice and intending to seek reparation to documents in the file relating to a proceeding under Article 101(1) TFEU — Burden of proof incumbent on the person concerned — Requirement to weigh up the interests at stake

   (Art. 101(1) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4)

3. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Protection of legal advice — Application to administrative files relating to proceedings for reviewing concerted practices — Internal Commission documents relating to a proceeding that has not been completed — General presumption of the application of the exception to the right of access to all opinions — Rebuttal of that general presumption — Limits

   (Art. 101(1) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(3))

1.  Where the documents covered by a request for disclosure under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents fall within a particular area of EU law, such as a proceeding under Article 81 EC, the exceptions to the right of access to documents set out, in particular, in Article 4 of that regulation cannot be interpreted without taking account of the specific rules governing access to those documents, which are laid down in this instance by Regulations Nos 1/2003 and 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC.

   Since those regulations do not contain a provision expressly giving one regulation primacy over the other, it is necessary to ensure that each of the regulations is applied in a manner which is compatible with the other and enables them to be applied consistently. First, while Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, that right is none the less subject to certain limits based on reasons of public or private interest. Second, Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004 lay down restrictive rules for the use of documents in the file relating to a proceeding under Article 81 EC. Accordingly, the parties to a proceeding under Article 81 EC do not enjoy unlimited right of access to the documents in the Commission’s file and third parties, with the exception of complainants, do not, under such a proceeding, have any right of access to the documents in the Commission’s file. If persons other than those with a right of access under Regulations Nos 1/2003 and 773/2004, or those who enjoy such a right in principle but have not used it or have been refused access, were able to obtain access to documents on the basis of Regulation No 1049/2001, the access system introduced by Regulations Nos 1/2003 and 773/2004 would be undermined. While the right to consult the file in a proceeding under Article 81 EC and the right of access to documents pursuant to Regulation No 1049/2001 are legally distinct, they lead to a comparable situation from a functional point of view.

   Therefore, authorising generalised access, on the basis of Regulation No 1049/2001, to the documents in a file relating to a proceeding under Article 81 EC would jeopardise the balance which the EU legislature sought to ensure in Regulations Nos 1/2003 and 773/2004 between the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information to enable it to ascertain whether a concerted practice was in existence and to determine whether that practice was compatible with Article 81 EC, on the one hand, and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission, on the other. It follows that, for the purposes of the application of the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, the Commission is entitled to presume, without carrying out a specific, individual examination of each of the documents in a file relating to a proceeding under Article 81 EC, that disclosure of such documents will, in principle, undermine the protection of the commercial interests of the undertakings involved in such a proceeding and the protection of the purpose of the investigations relating to the proceeding. In that regard, investigations relating to a proceeding under Article 81 EC may be regarded as completed only when the decision adopted by the Commission in connection with that proceeding is final.

   That general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document by virtue of Article 4(2) of Regulation No 1049/2001. However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission must examine individually all the documents requested in each individual case, which would deprive that general presumption of its proper effect, namely to permit the Commission to reply to a global request for access in a manner equally global.

   (see paras 83-90, 93, 99-101)

2.  It is true that the right of any person to claim compensation for the loss caused to him by a breach of Article 81 EC strengthens the working of the EU competition rules, making a significant contribution to the maintenance of effective competition in the European Union. Nevertheless, such general considerations are not, as such, capable of prevailing over the reasons justifying the refusal to disclose the documents in a file relating to the application of Article 81 EC.

   In order to ensure effective protection of the right to compensation enjoyed by a claimant, there is no need for every document relating to a proceeding under Article 81 EC to be disclosed to the claimant, as it is highly unlikely that the action for damages will need to be based on all the evidence in the file relating to that proceeding Any person seeking compensation for the loss caused by a breach of Article 81 EC must establish that it is necessary for that person to be granted access to documents in the Commission’s file, in order to enable the latter to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favour of the protection of those documents, taking into account all the relevant factors in the case. In the absence of any such necessity, the interest in obtaining compensation for the loss suffered as a result of a breach of Article 81 EC cannot constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

   (see paras 104-108)

3.  If, when a request for access to opinions drawn up in connection with a proceeding based on Article 81 EC is being examined, proceedings for the annulment of the Commission’s decision relating to the application of that provision are under way, the latter may be prompted, depending on the outcome of those proceedings, to resume its investigations with a view to the possible adoption of a new decision. It is therefore necessary to accept that there is a general presumption that any obligation placed on that institution to disclose, during those proceedings, opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents would seriously undermine that institution’s decision-making process. By very reason of that general presumption, the Commission cannot be required to show, in its decision concerning disclosure of documents, that each of the documents concerned constitutes an opinion within the meaning of the provision referred to above. Nevertheless, the general presumption in question does not exclude the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document by virtue of Article 4(3) of Regulation No 1049/2001.

   (see paras 114, 116, 117)

Case C‑365/12 P

European Commission

v

EnBW Energie Baden-Württemberg AG

‛Appeal — Regulation (EC) No 1049/2001 — Access to documents of the institutions — Documents relating to a proceeding under Article 81 EC — Regulation (EC) No 1/2003 and Regulation (EC) No 773/2004 — Access refused — Exceptions relating to the protection of investigations, commercial interests and the decision-making process of the institutions — Obligation upon the institution concerned to carry out a specific, individual examination of the content of the documents covered by the request for access’

Summary — Judgment of the Court (Third Chamber), 27 February 2014

1. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Protection of commercial interests — Application to administrative files relating to proceedings for reviewing concerted practices — Documents exchanged between the Commission and notifying parties or third parties — General presumption of the application of the exception to the right of access to all the documents in the administrative file — Rebuttal of that general presumption — Limits

   (Arts 15(3) TFEU and 101(1) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (3); Council Regulation No 1/2003; Commission Regulation No 773/2004)

2. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Application to administrative files relating to proceedings for reviewing concerted practices — General presumption of the application of the exception to the right of access to all the documents in the administrative file — Rebuttal of that general presumption — Access by a person adversely affected by a concerted practice and intending to seek reparation to documents in the file relating to a proceeding under Article 101(1) TFEU — Burden of proof incumbent on the person concerned — Requirement to weigh up the interests at stake

   (Art. 101(1) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4)

3. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Protection of legal advice — Application to administrative files relating to proceedings for reviewing concerted practices — Internal Commission documents relating to a proceeding that has not been completed — General presumption of the application of the exception to the right of access to all opinions — Rebuttal of that general presumption — Limits

   (Art. 101(1) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(3))

1.  Where the documents covered by a request for disclosure under Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents fall within a particular area of EU law, such as a proceeding under Article 81 EC, the exceptions to the right of access to documents set out, in particular, in Article 4 of that regulation cannot be interpreted without taking account of the specific rules governing access to those documents, which are laid down in this instance by Regulations Nos 1/2003 and 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC.

   Since those regulations do not contain a provision expressly giving one regulation primacy over the other, it is necessary to ensure that each of the regulations is applied in a manner which is compatible with the other and enables them to be applied consistently. First, while Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, that right is none the less subject to certain limits based on reasons of public or private interest. Second, Articles 27(2) and 28 of Regulation No 1/2003 and Articles 6, 8, 15 and 16 of Regulation No 773/2004 lay down restrictive rules for the use of documents in the file relating to a proceeding under Article 81 EC. Accordingly, the parties to a proceeding under Article 81 EC do not enjoy unlimited right of access to the documents in the Commission’s file and third parties, with the exception of complainants, do not, under such a proceeding, have any right of access to the documents in the Commission’s file. If persons other than those with a right of access under Regulations Nos 1/2003 and 773/2004, or those who enjoy such a right in principle but have not used it or have been refused access, were able to obtain access to documents on the basis of Regulation No 1049/2001, the access system introduced by Regulations Nos 1/2003 and 773/2004 would be undermined. While the right to consult the file in a proceeding under Article 81 EC and the right of access to documents pursuant to Regulation No 1049/2001 are legally distinct, they lead to a comparable situation from a functional point of view.

   Therefore, authorising generalised access, on the basis of Regulation No 1049/2001, to the documents in a file relating to a proceeding under Article 81 EC would jeopardise the balance which the EU legislature sought to ensure in Regulations Nos 1/2003 and 773/2004 between the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information to enable it to ascertain whether a concerted practice was in existence and to determine whether that practice was compatible with Article 81 EC, on the one hand, and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission, on the other. It follows that, for the purposes of the application of the exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001, the Commission is entitled to presume, without carrying out a specific, individual examination of each of the documents in a file relating to a proceeding under Article 81 EC, that disclosure of such documents will, in principle, undermine the protection of the commercial interests of the undertakings involved in such a proceeding and the protection of the purpose of the investigations relating to the proceeding. In that regard, investigations relating to a proceeding under Article 81 EC may be regarded as completed only when the decision adopted by the Commission in connection with that proceeding is final.

   That general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document by virtue of Article 4(2) of Regulation No 1049/2001. However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission must examine individually all the documents requested in each individual case, which would deprive that general presumption of its proper effect, namely to permit the Commission to reply to a global request for access in a manner equally global.

   (see paras 83-90, 93, 99-101)

2.  It is true that the right of any person to claim compensation for the loss caused to him by a breach of Article 81 EC strengthens the working of the EU competition rules, making a significant contribution to the maintenance of effective competition in the European Union. Nevertheless, such general considerations are not, as such, capable of prevailing over the reasons justifying the refusal to disclose the documents in a file relating to the application of Article 81 EC.

   In order to ensure effective protection of the right to compensation enjoyed by a claimant, there is no need for every document relating to a proceeding under Article 81 EC to be disclosed to the claimant, as it is highly unlikely that the action for damages will need to be based on all the evidence in the file relating to that proceeding Any person seeking compensation for the loss caused by a breach of Article 81 EC must establish that it is necessary for that person to be granted access to documents in the Commission’s file, in order to enable the latter to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favour of the protection of those documents, taking into account all the relevant factors in the case. In the absence of any such necessity, the interest in obtaining compensation for the loss suffered as a result of a breach of Article 81 EC cannot constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

   (see paras 104-108)

3.  If, when a request for access to opinions drawn up in connection with a proceeding based on Article 81 EC is being examined, proceedings for the annulment of the Commission’s decision relating to the application of that provision are under way, the latter may be prompted, depending on the outcome of those proceedings, to resume its investigations with a view to the possible adoption of a new decision. It is therefore necessary to accept that there is a general presumption that any obligation placed on that institution to disclose, during those proceedings, opinions within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents would seriously undermine that institution’s decision-making process. By very reason of that general presumption, the Commission cannot be required to show, in its decision concerning disclosure of documents, that each of the documents concerned constitutes an opinion within the meaning of the provision referred to above. Nevertheless, the general presumption in question does not exclude the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document by virtue of Article 4(3) of Regulation No 1049/2001.

   (see paras 114, 116, 117)