European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Although in principle the undertakings concerned by a competition procedure must have access to all the documents that form the “investigation file” of the Directorate General for Competition, all the documents in the file cannot be disclosed. The Commission must take account of the legitimate interest of the undertakings to the protection of their business secrets. Article 15 of Regulation No 773 …

Limits to right to access

Although in principle the undertakings concerned by a competition procedure must have access to all the documents that form the “investigation file” of the Directorate General for Competition, all the documents in the file cannot be disclosed. The Commission must take account of the legitimate interest of the undertakings to the protection of their business secrets. Article 15 of Regulation No 773/2004 draws up a list of documents that cannot be disclosed. The parties cannot have access to “business secrets, other confidential information and internal documents of the Commission or of the competition authorities of the Member States”. The correspondence between the Commission and the competition authorities of the Member States or between the latter are also excluded. Under Article 16 of Regulation No 773/2004, the Commission cannot communicate or make accessible information, including documents, that contain business secrets or other confidential information.

The Commission's internal documents do not constitute either incriminating or exculpatory evidence ; they are confidential documents by their very nature  and are only accessible where exceptional circumstances are claimed founded on serious evidence that the party concerned must provide . Unlike the hearing officer's report which does not constitute a decisive act warranting its communication to the parties , the Commission's forensic assessment of the authenticity of an electronic document constitutes not an internal document but inculpatory evidence, insofar as its assessment is based on the credibility of that evidence . Correspondence with the Member States is also confidential and does not have to be disclosed , unless it relates to information exchanged under Article 12 of Regulation No 1/2003 or information collected in the context of the preliminary investigation that may contain allegations against the parties . Thus, the use by the Commission of documents provided by the national authorities and obtained under national criminal law does not infringe the rights of defense of the undertakings if the transmission of the documents in question has not been declared unlawful by a national court .  These rules are combined with those of Regulation No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents . Although the regulation lays down the principle of the right of access by all EU citizens to Commission documents, Article 4 contains a series of exceptions providing, namely, that “Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure” (point 3). The General Court recognizes the existence of a general presumption that the disclosure of the documents transmitted to the Commission under Article 11(4) of Regulation No 1/2003, in principle adversely affects both the protection of the commercial interests of the undertakings to which  the information in question relates and the protection - which is closely linked - of the purpose of the investigation by the national competition authority concerned . The presumption applies to all aspects of the file relating to proceedings under both Article 101 and 102 TFUE and concerns the documents that the Commission has exchanged with the parties to the procedure or third parties and internal documents elaborated in order to conduct the proceedings in question, regardless of whether they are closed or pending . The undertaking nevertheless retains the possibility of showing the existence of an overriding public interest in disclosure of the documents requested. According to the Union court, that overriding public interest must be of an  objective and general nature and should not be confused with individual or private interests , especially when the applicant does not demonstrate that the refusal of access prevents the effective exercise of its right to compensation .

According to the Commission, information about an undertaking's business activity constitutes business secrets insofar as disclosure of it could result in serious harm to its interests . The General Court defines business secrets as those which cover, inter alia, commercial, competitive, financial or accounting information which are not normally accessible to third parties to the undertaking and which, by reason of their newness, are not historical in nature . A document that cannot be communicated in its entirety for reasons of confidentiality and the protection of trade secrecy cannot be used as evidence . However, the right to business secrets in the administrative procedure must be balanced against the safeguarding of the rights of defense and in particular the rights of access to the investigation file . Article 27 of Regulation No 1/2003 provides that nothing prevents the Commission from disclosing and using information necessary to prove an infringement. Therefore, confidentiality does not prevent any disclosure if the information concerned is incriminating or exculpatory evidence. In this case, the EU authority must assess all relevant elements, such as the relevance of the information in question and its probative value, whether it is indispensable, the degree of sensitivity, the preliminary view on the seriousness of the infringement , in order to determine in respect of each document whether the need for disclosure is greater than the resulting harm for the defense. The Court of Justice has also ruled that written communications made in the context of settlement discussions do not benefit from a presumption of confidentiality merely because they generally contain self-incriminating statements . The person or undertaking in question must, within the time-limit set by the Commission, provide it with a non-confidential version to which the parties concerned may have access.

The EU authority is, moreover, bound by an obligation to guarantee the anonymity of certain of its sources of information with a view to ensuring the effective prevention of prohibited anticompetitive practices . Documents that may compromise the Commission's sources of information thus constitute confidential documents, access to which can be refused during the administrative procedure . Confidentiality may attach to the identity of the authors of the documents and to the persons who transmitted them to the Commission  afin de prévenir d'éventuelles mesures de représailles . This category also includes military secrets.

The disclosure of confidential information will only result in the annulment of the decision if it is shown that, in the absence of such irregularity, that decision might have been different .

Any person who makes known its views or subsequently submits further information to the Commission in the course of the same procedure, shall clearly identify the information which it considers to be confidential (Regulation No 773/2004, Article 16). This provision concerns the addressee of the Statement of Objections, the complainant, third parties justifying of a sufficient interest and having requested to be heard or invited to do so. Furthermore, the Commission may require undertakings which have produced or produce documents to identify the information which contains business secrets and the undertakings to which this information must not be sent. A time-limit is granted to the undertakings in question to indicate to the Commission the reasons on which their claim for confidentiality is based and to provide the Commission with a non-confidential version and a concise description of the deleted information. If no claim for confidentiality is submitted to the Commission, the latter considers that the documents and information contained in the file are not of a confidential nature.

The decision on the claim for confidentiality is provisional. When the Commission intends to reverse its position, it informs the persons and undertakings concerned in a reasoned decision and grants them a time-limit in which to submit their written observations. In case of dispute, the matter is dealt with by the hearing officer.

Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, LawLex200500003925JBJ; Case T-175/95 BASF v Commission [1999] ECR II-1581, LawLex200400003599JBJ.

Case C-199/99 P Corus UK v Commission [2003] ECR I-11177, LawLex200500003859JBJ.

Case T-210/15 Deutsche Telekom AG, Judgment of 28 March 2017, LawLex201700000612JBJ.

Case T-210/15 Deutsche Telekom AG, cited above.

Case T-611/15 Edeka-Handelsgesellschaft Hessenring mbH, cited above.

Commission Notice No 2005/C 325/07 of 13 December 2005, at pt 18, providing a list of information likely to constitute business secrets: technical and/or financial information relating to an undertaking's know-how, methods of assessing costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost and price structure and sales strategy.

Case T-384/09 SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, not available in English; Case T-341/12 Evonik Degussa GmbH, Judgment of 28 January 2015, LawLex201700000950JBJ : data which is more than five years' old is historical information not covered by business secrecy.

Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ.

Case T-30/91 Solvay v Commission [1995] ECR II-1775, LawLex200500005008JBJ.

Commission Notice No 2005/C 325/07 of 13 December 2005, at pt 24.

Case C-318/19 P(R) Lantmännen ek för; Lantmännen Agroetanol AB, Judgment 10 September 2019, LawLex201900001114JBJ.   

Case T-53/03 BPB v Commission [2008] ECR II-1333, LawLex200900000079JBJ.

Case T-236/01 Tokai Carbon v Commission [2004] ECR II-1181, LawLex200400003298JBJ.

Case T-67/01 JCB Service v Commission [2004] ECR II-49, LawLex200500004797JBJ.

Case C-407/04 P Dalmine v Commission [2007] ECR I-829, LawLex200700001473JBJ.

Case T-604/18 Google LLC, 14 September 2022, LawLex202200006913JBJ.

Case 209/78 Van Landewyck v Commission [1980] ECR 3125, LawLex200500004028JBJ.

Case T-758/14 Infineon Technologies AG, Judgment of 15 December 2016, LawLex201600002076JBJ.

Case T-758/14 Infineon Technologies AG, cited above.

Case C-310/93 P, BPB Industries and British Gypsum v Commission [1995] ECR I-865, LawLex200500005109JBJ.

Commission Notice No 2005/C 325/07 of 13 December 2005, at pt 18.

Case T-655/11 FSL Holdings, Judgment of 16 June 2015, LawLex201500000777JBJ.

Case C-365/12 P EnBW Energie Baden-Württemberg AG, Judgment of 27 February 2014, LawLex201400000477JBJ; Case T-623/13 Unión de Almacenistas de Hierros de España, Judgment of 12 May 2015, not available in English: in this case the General Court pointed out that the presumption is applicable whether the proceedings are pending or closed; Case T-623/13 Unión de Almacenistas de Hierros de España, Judgment of 12 May 2015, LawLex201800000322JBJ; in this case the GC states that the presumption applies whether the procedure is pending or closed; Case T-611/15 Edeka-Handelsgesellschaft Hessenring mbH, Judgment of of 5 February 2008, not available in English: specifying that the presumption applies even if only one document is requested, in this case the table of contents of the Commission decision, where, as it contains relevant and specific information relating to the contents of the file, it may reveal sensitive commercial information or information on the ongoing investigation to a third party . 

European Competition Law

236. Limits to right to access

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236. Limits to right to access

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

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise