Appeal brought on 27 September 2010 by European Commission against the judgment of the General Court (First Chamber) delivered on 7 July 2010 in Case T-111/07: Agrofert Holding a.s. v European Commission

(Case C-477/10 P)

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2010/C 328/39

Language of the case: English

Parties

Appellant: European Commission (represented by: B. Smulders, P. Costa de Oliveira, V. Bottka, Agents)

Other parties to the proceedings: Agrofert Holding a.s., Kingdom of Sweden, Republic of Finland, Kingdom of Denmark, Polski Koncern Naftowy Orlen SA

Form of order sought

The appellant claims that the Court should:

Pleas in law and main arguments

The present Appeal concerns the interpretation of the exceptions to the right to access to documents relating to (i) the protection of the purpose of inspections, investigations and audits (hereafter ‘the investigations exception’), (ii) the protection of the commercial interests of a natural or legal person (hereafter, the ‘commercial interests’ exception), (iii) the protection of the decision-making process of the Commission (hereafter, the ‘decision-making process’ exception) and, (iv) the protection of legal advice (hereafter, the ‘legal advice’ exception). These are laid down, respectively, in Article 4 (2), third indent, in Article 4 (2), first indent, in Article 4 (3), second subparagraph and in Article 4 (2), second indent of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1) (hereafter ‘Regulation 1049/2001’).

More precisely, this Appeal covers the application of these exceptions to the documents in a Commission file concerning a merger control procedure in accordance with Council Regulation (EC) No 139/2004 (2) (hereafter the ‘Merger Regulation’).

The Commission considers that in the judgement under appeal the General Court made errors of law in its interpretation of the aforesaid exceptions by failing to take into account the specific features of competition law procedures and guarantees offered by the Merger Regulation to the undertakings participating in the merger proceedings. In particular, the General Court in its judgment did not seek to establish a genuine and harmonious balance between the two applicable legal regimes in this case. Instead it interpreted erroneously the rules on access to documents and, in so doing, it rendered the merger rules inapplicable.

The first question submitted for consideration to the Court is the scope of the professional secrecy obligation, as set out in the Merger Regulation and in Article 339 TFEU, for the purposes of interpreting the exceptions to the right of access, in particular the ‘investigations’ and the ‘commercial interests’ exception.

The second question submitted to the Court is the conclusion of the General Court according to which there were no particular circumstances in this case leading to the refusal of access to documents, without it being necessary for the Commission to examine, in a concrete and individual manner, each document requested and to provide a detailed reasoning of the refusal relating to the content of each document requested.

The third question is the restrictive interpretation of the ‘investigations’ exception, according to which this exception cannot apply after the adoption of the Commission decision terminating the administrative merger control procedure.

The fourth question submitted to the Court concerns the extent of the obligation to state reasons for the purposes of the demonstrating the risk of disclosure in particular for the protection of ‘commercial interests’, the ‘decision-making process’ and ‘legal advice’.

Finally, the fifth question to the Court concerns the interpretation of the rules relating to partial access. It is the Commission's position that in order for it to effectively conduct its enquiries relating to mergers, it must comply with the obligations imposed on it by the Merger Regulation, in particular those related to professional secrecy, irrespective of the fact that its decision has become definitive. Furthermore, when the procedural rules governing a particular field of activity, as interpreted by the case-law, afford protection to certain documents, such as the internal documents of the. Commission, it must be recognised that such documents benefit from a general presumption of non accessibility under Regulation 1049/2001. The judgment of the General Court has cast doubts on the scope of the Commission's ability to conduct its enquiries in this matter as well as on the rights of the parties having submitted documents to it and this Appeal is designed to permit the Court to clarify the correct approach.

The Commission therefore submits this Appeal in order to permit the Court to rule on the fundamental issues raised by the General Court's judgment and to lay down a coherent and harmonious interpretation of the two legal instruments concerned.

(1)  OJ L 145, p. 43.

(2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings OJ L 24, p. 1.