Access to EU documents
Court restricts right of access in merger probes
By Sophie Mosca | Thursday 28 June 2012
The European Commission may in certain conditions refuse access to documents relating to merger control proceedings without first carrying out a concrete individual examination of the documents. With this ruling, the EU Court of Justice clarifies for the first time the relationship between the regulation on access to documents and the merger control regulation, and acknowledges the possibility to restrict the disclosure of information relating to a merger case (Cases 404/10P and 477/10P).
The court’s case law has already set certain limits on the regulation on access to documents, which aims to give the most extensive access possible to the documents of the EU institutions, with respect to information on state aid cases.
The Commission refused to disclose to third parties documents relating to merger control proceedings, relying on the exceptions to the right of access laid down in the regulation on access to documents, related to the protection of commercial interests and of the purpose of investigations.
The French publisher Odile Jacob and the Czech firm Agrofert both obtained annulments by the EU General Court of Commission decisions refusing access to information. The Gerneral Court held that the executive had failed to demonstrate, in a concrete and individual manner, that the documents undermined the interests protected by those exceptions.
The Court of Justice has now set aside the General Court’s judgements, thus building up its case law on exceptions to access to documents related to merger control. It held that the General Court should have recognised the existence of a general presumption that disclosure of documents exchanged between the Commission and undertakings in the course of merger proceedings undermines in principle both protection of the objectives of investigation activities and protection of the commercial interests of the undertakings involved. It explains that the Commission, in exercising its control responsibilities, exchanges data that relate to an investigation and that it obtains sensitive commercial information on these companies (commercial strategies, sales, market share or business relations) which, if disclosed, would undermine their interests.
The court adds that this presumption covers both control proceedings already closed and pending proceedings and that the documents concerned are those exchanged between the undertakings involved and the EU executive as well as documents internal to the Commission established in connection with the merger control proceedings.
The Commission welcomed the judgements as very important for its future successful conduct of competition investigations. They confirm that the merger regulation gives it extensive powers to obtain sensitive information and ensures that such information may only be used by the executive or by parties in the framework of a merger investigation.