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European Competition Law

In its Notice of 13 December 2005 , the Commission sets the context of the exercise of the right of access to the file laid down in Articles 27 of Regulation No 1/2003 and 15 of Regulation No 773/2004. According to the document, the right of access to the file applies to the persons, undertakings and associations of undertakings to whom the Commission has sent a Statement of Objections. The partie …

Right of access to the file

In its Notice of 13 December 2005 , the Commission sets the context of the exercise of the right of access to the file laid down in Articles 27 of Regulation No 1/2003 and 15 of Regulation No 773/2004. According to the document, the right of access to the file applies to the persons, undertakings and associations of undertakings to whom the Commission has sent a Statement of Objections. The parties may upon request be granted access to the file after the notification of the Statement of Objections . They may use the documents so obtained only in the context of judicial or administrative proceedings intended to apply Articles 101 and 102 TFEU. Access to the file is only granted to the addressees of the objections. The complainant, who receives a copy of the non-confidential version of the Statement of Objections, can only make known its views in writing or request to be heard . Where the Commission intends to reject a complaint, the complainant may have access to the documents on which the Commission bases its assessment, except for those covered by business secrets and containing confidential information .

The “Commission file” includes all documents which have been collected by the Commission's Directorate General for Competition during the investigation . The parties have access to both the incriminating and exculpatory evidence. A document can be considered as incriminating evidence only if it is used by the Commission in support of the finding of an infringement committed by an undertaking . Such is not the case of the replies of the undertakings concerned to the Statement of Objections, which by definition do not appear in the file constituted for the requirement of said Statement of Objections . This is particularly the case where the Commission does not intend to use those replies against the various undertakings that may have participated in the infringement  or where they contain no exonerating evidence , or merely evidence relating to a paragraph of the Statement of Objections that is not incorporated in the decision  or, even if they constitute incriminating evidence, when the grievance in question can be proven by other means . The Court of Justice even considers that there is no full and automatic right of access to other cartel participants' replies to the Statement of Objections, insofar as they are not comparable to the replies given to requests for information, the content of which constitute essential documents relating to the procedure . According to the European Court of Justice, the Commission makes an initial discretionary assessment of the potentially exculpatory nature of the information contained in the documents received after the Statement of Objections in order to decide whether or not the undertakings can access them .

The absence of an incriminating document is prejudicial to the parties concerned only if they can show that the Commission's decision would have been different if it had to be disallowed as evidence . However, in the event of the non-disclosure of an exculpatory document, the undertaking is only required to provide a preliminary indication of the usefulness of the undisclosed documents for its defense .  Such evidence may be brought by establishing that its failure to disclose was able to influence, to its detriment, the course of the procedure and the content of the Commission's decision  or that it may have impeded the defense of its interests during the administrative procedure or made it more difficult . Thus, the violation by the Commission of the right to be heard and to have access to the file leads to the annulment of its decision where the undertaking demonstrates that, without those irregularities, it would have been better able to ensure its defense .  The non-disclosure of an exculpatory document has no effect on the exercise of the rights of defense when the party concerned is already in possession of that document  or cannot establish that its failure to disclose was able to influence, to its detriment, the course of the procedure and the content of the final decision  or where the Commission did not rely on said failure in establishing the existence of the infringement . Insofar as the national authorities are not competent to adopt a decision finding an absence of infringement of Article 101(1) TFEU, the non-disclosure to the parties of a communication to that effect by the authority of a Member State does not have an effect on the outcome of the administrative procedure . By contrast, an undertaking cannot be required to demonstrate that the documents in the file to which it did not have access because the Commission lost them could have been used by it to establish that it had not committed any anticompetitive practices . Finally, where the access to the file is granted only in the course of judicial proceedings in the General Court, the undertaking is only required to show that the documents at issue would have been useful for its defense and not that, had they been communicated, the decision of the Commission would have been different .

The Commission cannot selectively pick the documents that may be useful to the defense of the undertakings in question . It must therefore give the legal advisers of the undertakings concerned the opportunity to examine documents which may be relevant so that their probative value for the defense can be assessed .

In all cases, the Commission must draw up a sufficiently detailed list of the documents which are not annexed to the Statement of Objections to enable the addressee undertaking to request access to specific documents likely to be useful in its defense .

Access to the file may be ensured in many different ways by the Commission: through copies sent by mail, through the supply of CD-ROM or any other electronic data storage device, through examination of documents on its premises. The Commission can facilitate access to the investigation file by suggesting that the undertakings concerned organize a direct and mutual exchange of the documents between themselves but it must still ensure the exercise of their right to access the entire investigation file at the Commission's premises . If a party wishes to consult a non-accessible document, it must make a request to the Commission. If a refusal decision is challenged, the matter will be dealt with by the hearing officer.

Commission Notice No 2005/C 325/07 of 13 December 2005.

Regulation No 773-2004, Art. 15. - If the parties have not expressly made a request, they cannot complain about a breach of the rights of defense: Case T-314/01 Avebe v Commission [2006] ECR II-3085, LawLex200700001496JBJ; Case T-109/02 Bolloré v Commission [2007] ECR II-947, LawLex200700000583JBJ.

Case T-113/17 Crédit agricole SA, 20 December 2023, not available in English.

Case C-607/18 P NKT Verwaltungs GmbH et NKT A/S, Judgment of 14 May 2020, LawLex202000000448JBJ. 

Case T-441/14 Brugg Kabel AG, Judgment of 12 July 2018, LawLex202100001603JBJ; Case T-447/14 NKT Verwaltungs GmbH, Judgment of 12 July 2018, LawLex201800001084JBJ.

See in particular Case C-204/00 P Aalborg Portland and others v Commission [2004] ECR I-123, LawLex200400003525JBJ.

Case C-204/00 P Aalborg Portland and others v Commission [2004], cited above; Case T-52-03 Knauf Gips KG, Judgment of 8 July 2008, not available in English. 

Cases C-239/11 P, C-489/11 P and C-498/11 P Siemens AG, Judgments of 19 December 2013, LawLex201300001861JBJ.

Case T-189/10 GEA Group AG, Judgment of 15 July 2015, not available in English.

Case T-25/95 Cimenteries CBR v Commission [2000] ECR II-491, LawLex200400003586JBJ.

Case 407/08 P Knauf Gips v Commission, LawLex201000000812JBJ.

Case T-762/14 Koninklijke Philips NV, Judgment of 15 December 2016, LawLex201600002077JBJ.

Case T-472/13 H. Lundbeck A/S, Judgment of 8 September 2016, LawLex201600001398JBJ.

Case C-110/10 P Solvay v Commission, LawLex201200000090JBJ.

Case C-609-13 P Duravit AG, 26 January 2017, LawLex201700001078JBJ. See also, Case T-136/19, Judgment of 25 October 2023, LawLex202300012748JBJ, annulling the Commission's decision, holding that the violation of the right of access to the file is not remedied by the mere fact that access was made possible in the course of the legal proceedings, since the late receipt of certain documents does not put the company which brought an action against a Commission decision in the position it would have been in had it been able to rely on the same documents to present its written and oral observations before the Commission before the adoption of the contested decision.

Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, LawLex200500003925JBJ.

Case 48/69 ICI v Commission [1972] ECR 619, LawLex200400003459JBJ; Case T-30/91 Solvay v Commission [1995] ECR II-1775, LawLex200500005008JBJ; Case T-175/95 BASF v Commission [1999] ECR II-1581, LawLex200400003599JBJ, for “business secret” documents that are entirely unavailable, the Commission draws up a list including a brief indication used to identify their content and purpose, so that the undertakings requesting to have access to the file may assess their relevance for the defense.

Case T-175/95 BASF v Commission [1999] ECR II-1581, LawLex200400003599JBJ.

Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, LawLex200500003900JBJ. See, however, Case T-30/91 Solvay v Commission [1995] ECR II-1775, LawLex200500005008JBJ, which underlines that the cooperation between the undertakings cannot in any case lessen the Commission's own duty to ensure that the rights of defense of the undertakings concerned are respected.

Commission Notice No 2005/C 325/07 of 13 December 2005, at pt 8.

When the evidence is provided orally, the Commission must make it available: Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, LawLex200600001231JBJ; Case T-44/02 OP Dresdner Bank v Commission [2006] ECR II-3567, LawLex200700000258JBJ.

Case T-354/06 BAM NBM Wegenbouw BV, Judgment of 27 September 2012, not available in English; Case T-441/14 Brugg Kabel AG, Judgment of 12 July 2018, LawLex202100001603JBJ; Case T-447/14 NKT Verwaltungs GmbH, Judgment of 12 July 2018, LawLex201800001084JBJ.

Case T-54-03 Lafarge (SA), Judgment of 8 July 2008, LawLex202000002031JBJ. - Comp. when it relies on these responses to support its finding that there is no national administrative practice likely to force service providers to coordinate on prices, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ.

Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, LawLex200500003913JBJ; Case T-195/06 Solvay Solexis SpA, Judgment of 16 June 2011, not available in English; Case T-343/06 Shell Petroleum NV, Judgment of 27 September 2012, LawLex201700001265JBJ, finding that the fact that an undertaking was unable to access all the replies to the Statement of Objections of another undertaking, on which the Commission relied, or on those of the other members of the agreement, does not constitute a violation of the rights of the defense, as in the light of the tendency of firms to minimize their participation in the agreement, it is unlikely that these documents constitute exculpatory evidence in repsect of the others; Case T-8/16 Toshiba Samsung Storage Technology Corp, Judgment of 12 July 2019, LawLex201900000929JBJ.

Case T-86/95 Compagnie générale maritime and others v Commission [2002] ECR II-1011, LawLex200400003557JBJ.

European Competition Law

237. Right of access to the file

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

237. Right of access to the file

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise