GC, 1st chamber, July 7, 2010, No T-111/07

THE GENERAL COURT (First Chamber),

Background to the dispute

1 By decision of 20 April 2005, the Commission of the European Communities authorised, pursuant to Article 6(1)(b) of Council Regulation (EC) No 139-2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1; 'the Merger Regulation'), the planned acquisition, by way of purchase of shares, of the Czech company Unipetrol by the Polish company Polski Koncern Naftowy Orlen ('PKN Orlen'), which had been notified to the Commission on 11 March 2005.

2 By letter of 28 June 2006, the applicant, Agrofert Holding a.s., requested the Commission to grant it access to all unpublished documents concerning the notification and pre-notification procedure in respect of the acquisition of Unipetrol by PKN Orlen, on the basis of Regulation (EC)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 (OJ 2001 L 145, p. 43).

3 By letter of 20 July 2006, the Commission's Directorate General (DG) 'Competition' informed the applicant that, in light of the complexity of the request, the deadline for reply would be extended by 15 working days in accordance with Article 7(3) of Regulation No 1049-2001.

4 By letter of 2 August 2006, sent to the applicant by fax on the same day, DG 'Competition' refused to grant the request for access to the documents. After pointing out that the request was general in nature, it expressed the view that the documents in question were covered by the exceptions laid down in Article 4(2) and (3) of Regulation No 1049/2001. It added that disclosure of documents originating from the notifying parties and from third parties would be contrary to the obligation of professional secrecy laid down in Article 287 EC and Article 17(1) and (2) of the Merger Regulation. It also stated that partial access to the documents was not possible and that no argument capable of establishing the existence of an overriding public interest in disclosure had been adduced.

5 By letter of 18 August 2006, the applicant submitted a confirmatory application to the Commission pursuant to Article 7(2) of Regulation No 1049-2001. It challenged the Commission's refusal, claiming, inter alia, that it should have been granted partial access to the requested documents. In addition, it asserted that there was an overriding public interest justifying disclosure of the documents in question, consisting in the damage which it and the minority shareholders of Unipetrol had suffered.

6 By letter of 11 September 2006, the Commission informed the applicant that, in accordance with Article 8(2) of Regulation No 1049-2001, it needed to extend the deadline to 2 October 2006 in order to reply to the applicant's confirmatory application.

7 By letter of 2 October 2006, the Commission informed the applicant that it would reply to its confirmatory application as soon as possible and that the absence of an express reply within the aforementioned deadline was not to be interpreted as a refusal.

8 By letter of 17 October 2006, the applicant requested the Commission to inform it of its response and to send it the documents requested. By e-mail of 9 November 2006, the Commission acknowledged receipt of the letter of 17 October 2006 and, by letter of 21 December 2006, informed the applicant that the response to its confirmatory application, which required a specific analysis of the documents in question, should reach it in January 2007.

9 By decision of 13 February 2007, the Secretariat-General of the Commission confirmed the refusal to grant access to the documents in respect of the four categories of documents identified.

10 Firstly, the Commission takes the view that the documents exchanged between it and the notifying parties contain commercially sensitive information relating to the commercial strategies of the notifying parties, their sales volumes, their market shares or customer relations. Accordingly, the exception laid down in the first indent of Article 4(2) of Regulation No 1049-2001, concerning the protection of commercial interests, applies. The Commission adds that the exception relating to commercial interests set out in that provision is the expression of its obligation to uphold professional secrecy, laid down in Article 287 EC, even though the concept of commercial interests is wider than that of professional secrecy. It also refers to Article 17 of the Merger Regulation with regard to the obligation of professional secrecy in respect of merger investigations. The Commission adds that, since the objective of the merger investigation procedures is to ascertain whether a notified operation does or does not give the notifying parties market power which is likely to have a significant effect on competition, all documents supplied by the notifying parties in the context of such a procedure necessarily relate to commercially sensitive information.

11 The Commission also takes the view that the exception set out in the third indent of Article 4(2) of Regulation No 1049-2001, which concerns in particular the protection of investigations, is applicable here. In its view, the parties involved in merger proceedings must be entitled to a legitimate expectation that sensitive information contained in the documents which they have provided will not be disclosed. The Commission takes the view that disclosure of the documents in question would undermine the climate of mutual trust between it and undertakings, by virtue of which they supply the necessary information, even when they are not strictly required to do so by the relevant legal provisions.

12 Secondly, the Commission is of the opinion that the documents exchanged between it and third parties come within the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049-2001 for the same reasons as those advanced in relation to the documents exchanged between it and the notifying parties.

13 Thirdly, the Commission states that the documents sent to Member States do not contain any information of substance and concludes therefrom that, failing any observation to the contrary by the applicant, they were not included in its request for document access. The applicant confirmed, at the hearing, that it was not seeking access to those documents.

14 Fourthly, the Commission identifies the following internal documents:

- a note stating that a copy of the notification submitted to the Commission was sent by the recipient service to the other services of the Commission (Document 1);

- an inter-service consultation note enclosing a draft decision on the notification (Document 2);

- a reply from the Legal Service relating to the above consultation note (Document 3);

- an exchange of e-mails between the competent Commission service and the Legal Service on the draft decision (Document 4);

- replies to the above consultation note from the other Commission services concerned (Document 5);

- two transmission notes by which the draft decision was submitted to the Commission for formal approval (Document 6);

- a note containing the notice to be published in the Official Journal of the European Union (Document 7).

15 In the decision of 13 February 2007, the Commission expresses the view that, failing information to the contrary from the applicant, Documents 1, 6 and 7 constitute merely transmission documents which were not included in the application for access, a fact which the applicant confirmed at the hearing.

16 With regard to Documents 2 to 5, the Commission takes the view that their disclosure would seriously undermine its decision-making process, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049-2001. It points to the collegiate nature of that decision-making process and emphasises the need to maintain trust within its services. According to the Commission, those documents reflect freely-expressed opinions and discussions within the services. Their disclosure in the present case would seriously jeopardise independent expression of opinions and would endanger the solidity of the Commission's decision-making process. In addition, it would reduce the willingness to cooperate on the part of the different parties to the notification procedure, that is to say, the undertakings affected by the notification and third parties.

17 The Commission is of the opinion that Documents 3 and 4 were also covered by the exception based on the protection of legal advice, laid down in the second indent of Article 4(2) of Regulation No 1049-2001. It states that the confidentiality of that advice was necessary in order to obtain full and frank legal advice.

18 Finally, the Commission adds that there is no overriding public interest which could justify the disclosure of the documents requested in the present case and that it was also not possible to grant partial access. In that regard, it points out that, as the purpose of the Commission's investigation was to examine the market conditions surrounding the proposed merger and its expected impact on the market, the information supplied by the parties (whether the notifying parties or third parties) and the information required from those parties was of necessity such as to harm the commercial interests of the parties concerned and the purpose of the investigative activities of the Commission. From this it concludes that it was therefore not possible to identify the parts of the documents exchanged between it and the parties concerned 'that do not contain non-commercial information or are not investigation-related and the reading of which in itself would make sense'. In the same way, it states that its internal documents, including legal opinions, were very short documents which could not be split up into accessible and non-accessible parts. Finally, it refers to the fact that the published version of the decision on the merger in question contains, by definition, the information that could be disclosed and constitutes a partial access to the parts of the documents requested which are not covered by the applicable exceptions.

Procedure and forms of order sought by the parties

19 By application lodged at the Court Registry on 13 April 2007, the applicant brought the present action.

20 By documents lodged at the Court Registry on 13 and 26 July 2007 respectively, the Kingdom of Sweden and the Republic of Finland requested leave to intervene in support of the form of order sought by the applicant. By order of 12 September 2007, the President of the First Chamber of the Court granted those applications for leave to intervene. On 26 October 2007, the Kingdom of Sweden lodged a statement in intervention. The Republic of Finland did not lodge a statement in intervention within the prescribed period.

21 By document lodged at the Court Registry on 20 July 2007, PKN Orlen requested leave to intervene in support of the form of order sought by the Commission. Its application was granted by order of 6 December 2007. PKN Orlen lodged its statement in intervention on 24 January 2008.

22 By document lodged at the Court Registry on 10 January 2008, the Kingdom of Denmark requested leave to intervene in support of the form of order sought by the applicant. By order of 29 February 2008, it was granted leave to intervene and to submit its observations during the oral procedure.

23 On the basis of the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.

24 As one member of the Chamber was prevented from sitting, on 13 May 2009 the President of the Court, acting pursuant to Article 32(3) of the Court's Rules of Procedure, designated another Judge to complete the Chamber.

25 By order of 18 June 2009, in accordance with Article 65(b), Article 66(1) and the third subparagraph of Article 67(3) of the Rules of Procedure, the Court requested the Commission to produce internal Documents 2, 3, 4 and 5, it being stated that those documents would not be communicated to the applicant in the present proceedings. The Commission complied with that request.

26 The parties presented oral argument and replied to the Court's questions at the hearing on 23 September 2009.

27 The applicant claims that the Court should:

- annul the Commission's decisions of 2 August 2006, in so far as it refuses access to the requested documents, and of 13 February 2007 confirming that refusal;

- order the Commission to disclose to it the documents requested;

- order the Commission to pay the costs.

28 The Kingdom of Sweden, intervening in support of the applicant, submits that the Court should annul the decision of 13 February 2007 confirming the reply of 2 August 2006.

29 The Commission contends that the Court should:

- dismiss the action;

- order the applicant and the Kingdom of Sweden, as intervener, to pay the costs.

30 PKN Orlen, intervening in support of the Commission, submits that the Court should:

- dismiss the application and uphold the decision of 13 February 2007;

- order the applicant to pay the costs.

Law

1. Admissibility of the action

Arguments of the parties

31 The Commission, without formally raising an objection of inadmissibility by separate document, argues that the action is inadmissible in so far as it is brought against the reply of 2 August 2006, which, in its view, is not an act which is open to challenge.

32 The applicant submits that, as a precautionary measure, its action for annulment also challenges the Commission's reply of 2 August 2006, inasmuch as it is not clear that the final reply entirely replaced the first refusal.

Findings of the Court

33 It has consistently been held that only a measure the legal effects of which are binding on and capable of affecting the interests of an applicant by bringing about a distinct change in his legal position is an act against which an action for annulment may be brought. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is, in principle, open to review only if it is a measure definitively laying down the position of the institution at the end of that procedure, and not a provisional measure intended to pave the way for the final decision (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 10, and Joined Cases T-391-03 and T-70-04 Franchet and Byk v Commission [2006] ECR II-2023, paragraph 46).

34 The administrative procedure for access to documents, governed by Regulation No 1049-2001, takes place over two successive stages, in accordance with Articles 7 and 8 of that regulation. Article 7 governs the processing of initial applications. A response to such an application containing a total or partial refusal or a lack of reply within the required period entitles the applicant to send a request asking the institution to reconsider its position. Under Article 8 of Regulation No 1049-2001, which governs the processing of confirmatory applications, a total or partial refusal to grant access to the documents requested in a confirmatory application entitles the applicant to bring court proceedings against the institution, subject to the conditions laid down in respect of actions for annulment.

35 It follows that only the reply to a confirmatory application, which is a decision and which entirely replaces the previous statement of position, is capable of producing legal effects such as to affect the interests of the applicant and, therefore, of being the subject of an action for annulment (see, to that effect, Franchet and Byk v Commission, cited in paragraph 33 above, paragraph 48, and Case T-437-05 Brink's Security Luxembourg v Commission [2009] ECR II-0000, paragraph 71).

36 In the present case, it must be noted that the Commission's reply of 2 August 2006 to the initial request for access to the documents constitutes only a preliminary statement of position, giving the applicant the possibility of requesting the Secretary-General of the Commission to reconsider that position.

37 Consequently, only the measure adopted by the Commission on 13 February 2007, which replaces in its entirety the previous statement of position, is capable of producing legal effects such as to affect the applicant's interests and, therefore, of being the subject of an action for annulment.

38 Accordingly, the present action is inadmissible in so far as it challenges the reply of 2 August 2006.

2. The admissibility of the head of claim seeking access to the documents in question

39 The Commission submits that the applicant's second head of claim is inadmissible inasmuch as it requests the Court to order the Commission to provide the applicant with the documents requested.

40 It is settled case-law that the Court is not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before the Court, including those concerning access to documents (Case T-204-99 Mattila v Council and Commission [2001] ECR II-2265, paragraph 26, upheld by the Court of Justice in Case C-353-01 P Mattila v Council and Commission [2004] ECR I-1073, paragraph 15). When the Court annuls an act of an institution, that institution is required, under Article 233 EC, to take the measures necessary to comply with the Court's judgment (Case C-41-00 P Interporc v Commission [2003] ECR I-2125, paragraph 28).

41 Accordingly, the applicant cannot request the Court to order the Commission to provide it with the documents requested. The applicant's second head of claim is for that reason inadmissible.

3. Substance

42 In support of its action, the applicant puts forward three pleas in law alleging, firstly, maladministration in the processing of its request for access, secondly, infringement of the second paragraph of Article 1 EU and, thirdly, incorrect application of the exceptions referred to in Article 4(2) and (3) of Regulation No 1049-2001.

43 The Court considers that it is appropriate first to examine the third plea, alleging infringement of Regulation No 1049-2001.

44 In support of that plea, the applicant submits that application of the exceptions set out in Article 4(2) and (3) of Regulation No 1049-2001 to the documents in question is incorrect. In essence, it argues, firstly, that in so far as the documents exchanged between the Commission and the notifying parties and third parties are concerned, application of the exceptions based, on the one hand, on protection of commercial interests and, on the other, on protection of its investigative activities is incorrect. Secondly, it contests the application of the exception relating to the protection of legal advice. Thirdly, it claims that application of the exception based on the protection of the decision-making process to other internal Commission documents is erroneous. In addition, it contends that there is, in respect of each exception, an overriding public interest within the meaning of Article 4(2) and (3) of Regulation No 1049-2001. Finally, it challenges the refusal to grant partial access to the documents requested.

45 The Court will examine the refusal to grant access to the documents for each category of documents requested.

The refusal to grant access to the documents exchanged between the Commission and the notifying parties and third parties

46 The applicant challenges the refusal to grant access to the documents exchanged, on the one hand, between the Commission and the notifying parties and, on the other, between the Commission and third parties. It submits, firstly, that application of the exception based on protection of commercial interests, laid down in the first indent of Article 4(2) of Regulation No 1049-2001, is incorrect. Secondly, it submits that application of the exception relating to protection of the purpose of investigations, laid down in the third indent of Article 4(2) of Regulation No 1049-2001, is also incorrect. Thirdly, in its view, at least partial access to the documents requested should have been granted.

Arguments of the parties

47 The applicant, supported by the Kingdom of Sweden, submits that at least partial access to the documents exchanged between the Commission and the notifying parties and third parties could have been granted without undermining the protection of professional secrecy or of sensitive commercial information and points out, in that regard, the distinction between 'information' referred to in the Merger Regulation and 'documents' within the terms of Regulation No 1049-2001. It submits that the Commission is taking as its basis Article 17 of the Merger Regulation in order to refuse access to the documents in question without having undertaken a concrete, individual assessment of each document. In the view of the applicant, the fact that a document relates to an interest protected by an exception cannot justify application of that exception but calls for an evaluation of the document on the basis of the information which it actually contains. Furthermore, it argues, no third party was consulted, contrary to Article 4(4) of Regulation No 1049-2001.

48 The Kingdom of Sweden submits that, having regard to the reasons given for the decision of 13 February 2007, the Commission undertook a category-based examination which does not satisfy the requirements of Regulation No 1049-2001. In addition, it points out that Article 17 of the Merger Regulation, concerning professional secrecy, does not govern public access to documents and that certain information, protected by professional secrecy, may also be confidential by application of Regulation No 1049-2001. Disclosure of a document can, however, be refused only after an examination in the light of that latter regulation.

49 The Commission points out the amplitude of the obligation on it to uphold professional secrecy, laid down in Article 287 EC and implemented by Article 17 of the Merger Regulation. It states that the documents submitted by the notifying parties necessarily relate to commercially sensitive information concerning the parties involved. It also points out that the merger information gathered may be used only for the purposes of a request, investigation or hearing, pursuant to Article 17(1) of the Merger Regulation. It maintains that it was evident, in the present case, that disclosure of the documents in question could seriously harm the merging companies' interests, without it being necessary to consult third parties. Finally, it submits that the general exceptions under Regulation No 1049-2001 cannot result in the reduction of the protection afforded to public or private interests by the legislation governing specific sectors. Therefore, the protection afforded by the Merger Regulation to commercially sensitive information must also be guaranteed by the exception under the first indent of Article 4(2) of Regulation No 1049-2001 when the Commission takes a decision pursuant to the latter. In its observations on the statement in intervention of the Kingdom of Sweden, the Commission points out that a concrete, individual assessment is not required in all circumstances and that the documents provided in the field of mergers must be regarded as manifestly being covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049-2001, as the provisions on mergers would otherwise be deprived of their effet utile.

50 PKN Orlen states that, in the course of the review of the proposed merger, it submitted to the Commission documents including confidential information and business secrets, disclosure of which could result in serious harm to it, and points out that it disclosed that information on the form marked 'confidential - contains business secrets', on the premiss that those documents would be treated accordingly. It cannot, in its view, be argued that those documents could be disclosed at the request of a third party. It states that the Commission had available to it all information necessary to conclude that consultation of that document was not necessary in order to apply the exception relating to commercial interests.

Findings of the Court

51 In accordance with the first indent of Article 4(2) of Regulation No 1049-2001, the institutions are to refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, unless there is an overriding public interest in disclosure.

52 In the present case, application of that exception concerns the documents exchanged, on the one hand, between the Commission and the notifying parties and, on the other, between the Commission and third parties.

53 It is necessary to ascertain whether, in the present case, the Commission has assessed, firstly, whether those documents came within the scope of the exception laid down in the first indent of Article 4(2) of Regulation No 1049-2001, secondly, whether their disclosure might specifically and actually undermine the protected interest and, thirdly, if so, whether the need for protection applied to the documents in their entirety (see, to that effect, judgment of 30 January 2008 in Case T-380/04 Terezakis v Commission, not published in the ECR, paragraph 88).

54 In the first place, the documents exchanged, on the one hand, between the Commission and the notifying parties and, on the other, between the Commission and third parties are likely to concern, inter alia, commercial strategies, turnover, market shares and business relations, and thus commercially sensitive information relating to the parties at issue. Likewise, as the Commission has pointed out in its written submissions, in the context of merger investigation proceedings, the documents supplied to the Commission by the notifying parties concern in particular the parties' market positions, the effects of the merger on the relevant markets and the potential efficiency gains.

55 Accordingly, those documents are likely to contain information which may, where appropriate, be covered by the exception to the right to access laid down in the first indent of Article 4(2) of Regulation No 1049-2001.

56 In the second place, it is necessary to ascertain whether disclosure of those documents was likely specifically and actually to harm the interest protected.

57 In that regard, it must be borne in mind that, in view of the objectives pursued by Regulation No 1049-2001, the exceptions laid down in Article 4 of that regulation must be interpreted and applied strictly (see, to that effect, Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723, paragraph 36 and the case-law cited).

58 What is more, the examination required for the purpose of processing a request for access to documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. Such application may, in principle, be justified only if the institution has previously assessed whether, firstly, access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049-2001, there is no overriding public interest in disclosure. On the other hand, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons for the decision (see, to that effect, Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69, and Franchet and Byk v Commission, cited in paragraph 33 above, paragraph 115).

59 In addition, it follows from Article 4(1) to (3) of Regulation No 1049-2001 that all the exceptions mentioned therein are specified as being applicable to 'a document'. That concrete examination must, therefore, be carried out in respect of each document referred to in the request for access (see, to that effect, Verein für Konsumenteninformation v Commission, cited in paragraph 58 above, paragraph 70, and Franchet and Byk v Commission, cited in paragraph 33 above, paragraph 116).

60 A concrete, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, such an examination alone can enable the institution to assess the possibility of granting the applicant partial access under Article 4(6) of Regulation No 1049-2001. In the context of applying the Code of Conduct concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41), approved by the Council and the Commission on 6 December 1993, the Court has, moreover, already rejected as insufficient an assessment of documents by reference to categories rather than on the basis of the actual information contained in those documents, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents (see, to that effect, Franchet and Byk v Commission, cited in paragraph 33 above, paragraph 117 and the case-law cited).

61 In the present case, however, it is clear that, even though the Commission claims that such an examination was indeed made, that is not at all apparent from the grounds of the decision of 13 February 2007.

62 First of all, the documents in respect of which the exception based on the protection of commercial interests is invoked are classified in two categories, that is to say, documents exchanged, on the one hand, between the Commission and the notifying parties and, on the other, between the Commission and third parties, without further details. In particular, no list of those documents has been drawn up.

63 Next, the decision of 13 February 2007 states in a general and abstract manner that the documents in question contain commercially sensitive information relating to the commercial strategy of the notifying parties, their sales figures, market shares or customers. It states that, since merger control proceedings are intended to verify whether or not a notified transaction gives the merging parties market power resulting in a significant impediment to effective competition, all documents submitted by the notifying parties for the purpose of such proceedings necessarily relate to commercially sensitive information.

64 Such assertions are too vague and general and are not based on any factor related to the present case. The same argument could thus apply to all documents supplied in any merger control proceedings. Such an argument cannot therefore be regarded as demonstrating, to the requisite legal standard, that a concrete and effective examination of each document in question has been carried out in the present case.

65 The Commission asserts that it could not have been more precise as to the actual content of the documents in question, since that would have led it to disclose their content and would have deprived the exception of its purpose. That explanation cannot be accepted. In the present case, it was entirely possible to draw up a list of the documents exchanged between the Commission and the parties in the merger control proceedings in question and to describe the content of each document without thereby revealing information which had to remain confidential. The notification form, which sets out the information which notifying parties must supply to the Commission as part of the notification, also lists those documents, stating what they must contain, which was likely to assist significantly in the compilation of such a list. Furthermore, some of that information was disclosed when the final decision was published.

66 A fuller and more individual demonstration of the fact that each document at issue was, partially or otherwise, covered by the exception relating to the protection of commercial interests could therefore have been made and explained by the Commission, without thereby depriving the exception of its purpose or compromising the confidentiality of the information which, by reason of that exception, ought to remain secret.

67 The arguments put forward by the Commission before the Court are not capable of calling that conclusion into question.

68 Firstly, the Commission raises the obligation of professional secrecy and the protection of business secrets under Article 287 EC and Article 17 of the Merger Regulation.

69 It must be borne in mind, in that regard, that only certain information is covered by business secrets. Similarly, the obligation of professional secrecy does not have such a scope that it can justify a general and abstract refusal of access to documents submitted in connection with notification of a merger. It is true that neither Article 287 EC nor the Merger Regulation states exhaustively what information, by its very nature, is covered by professional secrecy. Nevertheless, it is apparent from the wording of Article 17(2) of the Merger Regulation, which provides that information acquired through the application of the Regulation of the kind covered by professional secrecy is not to be disclosed, that not all information thus acquired is necessarily covered by professional secrecy. Accordingly, the assessment as to the confidentiality of an item of information requires, on the one hand, that the individual legitimate interests opposing disclosure of the information be weighed against, on the other, the public interest in ensuring that the activities of the Community institutions take place as openly as possible (see, to that effect and by analogy, Case T-198-03 Bank Austria Creditanstalt v Commission [2006] ECR II-1429, paragraph 71, and Case T-474-04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II-4225, paragraphs 63 to 66).

70 By undertaking a concrete, individual assessment of the documents requested, in accordance with the first indent of Article 4(2) of Regulation No 1049-2001, the Commission is thus in a position to ensure that the provisions applicable to mergers retain their effectiveness, in full compliance with Regulation No 1049-2001. It follows that the obligation of professional secrecy and the protection of business secrets, which follow from Article 287 EC and from Article 17 of the Merger Regulation, are not such as to release the Commission from undertaking a concrete examination of each document concerned, as required by Article 4(2) of Regulation No 1049-2001.

71 The Commission also observes that the exceptions laid down in Regulation No 1049-2001 cannot give rise to a lower level of protection of the interests protected by the provisions applicable to merger proceedings and that the notion of commercial interests is wider than that of business secrets covered by the obligation of professional secrecy.

72 Nevertheless, it follows from the foregoing (see paragraph 70 above) that that argument, whatever its basis, cannot in any event justify the absence of an individual, concrete examination of each document in question. It is precisely such an examination that enables the exception based on protection of commercial interests, laid down in the first indent of Article 4(2) of Regulation No 1049-2001, to be applied, while complying with the specific provisions applicable in merger proceedings and, in particular, without thereby lessening the protection afforded to business secrets. In addition, if it is accepted that the notion of commercial interests is wider than that of business secrets, the examination carried out in application of the exception laid down in the first indent of Article 4(2) of Regulation No 1049-2001, which protects commercial interests of natural and legal persons, is a fortiori likely to ensure protection of business secrets.

73 At the hearing, the Commission invoked Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR'), signed in Rome on 4 November 1950, as a fundamental right to support its argument concerning the need to respect the privacy of undertakings. In reply to a question from the Court, however, it accepted that that basis, which was not referred to in the decision of 13 February 2007, had not been raised in its written pleadings before the Court.

74 The Court takes the view that, even if it were to be assumed that that argument could be regarded as amplifying a plea made previously and, as such, as being admissible (see, to that effect, Case 306-81 Verros v Parliament [1983] ECR 1755, paragraph 9, and Case C-301-97 Netherlands v Council [2001] ECR I-8853, paragraph 169), it is clear that it must, in any event, be rejected.

75 The right to respect for private life is a fundamental right which forms an integral part of the general principles of law, the observance of which the Court ensures. Those principles have been expressly restated in Article 6(2) EU, which provides that '[t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law' (see, to that effect, Case C-274-99 P Connolly v Commission [2001] ECR I-1611, paragraph 37). The right to respect for private life is, moreover, reaffirmed in Article 7 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1).

76 Article 8 of the ECHR, while setting out, in paragraph 1 thereof, the principle that public authorities may not interfere in the exercise of the right to respect for private life, acknowledges, in paragraph 2, that such interference is possible, on condition that it 'is in accordance with the law' and that it constitutes a measure which 'is necessary in a democratic society ... for the protection of the rights and freedoms of others'. The notion of private life may include activities of a professional or business nature of natural or legal persons (judgments of the European Court of Human Rights, Niemietz v Germany, 16 December 1992, Series A No 251-B, § 29; Amann v Switzerland, 16 February 2000, Reports of Judgments and Decisions 2000-II, § 65; and Société Colas Est and Others v France, 16 April 2002, Reports of Judgments and Decisions 2002-II, § 41), these being activities which may be covered by a merger notification (see, by analogy, in respect of public procurement procedures, Case C-450-06 Varec [2008] ECR I-581, paragraph 48). However, even if Article 8 of the ECHR could be invoked to protect the confidentiality of documents the disclosure of which would undermine protection of the commercial interests of a natural or legal person, within the meaning of the first indent of Article 4(2) of Regulation No 1049-2001, as the Commission argues, the fact none the less remains that that cannot release the Commission from carrying out a concrete and effective examination of each document in question, which is required by that provision and is not sufficiently apparent, in the present case, from the grounds of the decision of 13 February 2007.

77 Likewise, at the hearing, the Commission pointed out, in reply to a question from the Court, that, during the first phase of the merger notification, no access to the file was granted and all the documents were sent by the parties as confidential documents, a fact which had to be taken into account in applying Regulation No 1049-2001. However, it is clear that the rules on access to the file laid down by the Merger Regulation in no way release the Commission from carrying out a concrete examination of each document, including those submitted on a confidential basis, in the context of a request for access under Regulation No 1049-2001. It is by means of such an examination and the consultation of third parties laid down in Article 4(4) of Regulation No 1049-2001, which, moreover, did not occur in the present case, that the Commission is in a position to assess whether or not access to the documents in question must be refused in the light of the first indent of Article 4(2) of Regulation No 1049-2001 and, as appropriate, to justify, to the requisite legal standard, the refusal to disclose them.

78 Secondly, the Commission submits that all the documents provided necessarily contain commercially sensitive information relating to the parties at issue, that a concrete, individual examination is not required in all circumstances, and that the documents provided in the context of a merger constitute a special case and should necessarily be regarded as being manifestly covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049-2001.

79 It follows from case-law that a concrete, individual examination of each document requested may, admittedly, not be necessary where, due to the particular circumstances of the individual case, it is obvious that access must be refused or, on the contrary, granted. Such could be the case, inter alia, if certain documents were either, first, manifestly covered in their entirety by an exception to the right of access or, conversely, manifestly accessible in their entirety, or, finally, had already been the subject of a concrete, individual assessment by the Commission in similar circumstances (Verein für Konsumenteninformation v Commission, cited in paragraph 58 above, paragraph 75).

80 That is not, however, the position in the present case. Under Article 2(3) of Regulation No 1049-2001, the provisions relating to public access to Commission documents apply to all documents held by that institution, that is to say, all documents drawn up or received by it and in its possession, in all areas of activity of the European Union. It cannot, therefore, be accepted that, with regard to mergers, documents sent to the Commission are to be regarded, in their entirety, as being manifestly covered by the exception relating to protection of the commercial interests of the notifying parties and of third parties. Although that exception is, where relevant, applicable to certain of the documents sent to the Commission, that is not necessarily the case with regard to all of the documents or to those documents in their entirety. At the very least, the Commission is under an obligation to make certain thereof by way of a concrete, effective examination of each document, as required by the first indent of Article 4(2) of Regulation No 1049-2001. In that regard, the Commission does not raise any argument alleging that such an examination would have given rise to an excessive workload in the present case.

81 Moreover, PKN Orlen points out that it sent confidential documents to the Commission on the basis of the premiss that they would be treated as such. At the hearing, PKN Orlen referred, in that regard, to its legitimate expectation that the documents provided would not be disclosed, in application of Article 17 of the Merger Regulation.

82 Any economic operator to whom an institution has given justified hopes may rely on the principle of protection of legitimate expectations (Case T-115-94 Opel Austria v Council [1997] ECR II-39, paragraph 93). Moreover, a person may not plead infringement of that principle unless he has been given precise assurances by the administration (Joined Cases T-213-01 and T-214-01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [2006] ECR II-1601, paragraph 210, and Joined Cases T-3-00 and T-337-04 Pitsiorlas v Council and ECB [2007] ECR II-4779, paragraph 169 and the case-law cited).

83 In the present case, even if the view were to be taken that the argument alleging infringement of the principle of the protection of legitimate expectations was, in essence, raised in PKN Orlen's written pleadings and is not therefore a new plea raised at the hearing, it must be rejected. Article 17 of the Merger Regulation guarantees the non-disclosure of information which, by its very nature, is covered by professional secrecy. It is clear that such a provision does not enshrine an absolute right to the confidentiality of all documents supplied by undertakings (see, in that regard, paragraph 69 above). That provision cannot, therefore, suffice alone as a basis for a legitimate expectation on the part of undertakings that none of the documents which they have provided will be disclosed by the Commission.

84 Furthermore, PKN Orlen does not refer to any factor capable of establishing as a fact that the Commission gave it precise assurances as regards non-disclosure, on principle, of the entirety of the documents provided.

85 In addition, even if it were to be assumed that the Commission did give PKN Orlen precise assurances as to the confidentiality of the documents in question, such an undertaking could not be used against the applicant, whose rights to access to the documents are guaranteed subject to the conditions and within the limits laid down in Regulation No 1049-2001. A refusal of access to the documents can be based only and exclusively on the exceptions laid down in Article 4 of Regulation No 1049-2001, with the result that the institution in question cannot put forward such a refusal in reliance on an undertaking given to other parties to the transaction if that undertaking cannot be justified by reference to one of those exceptions. It is therefore within the framework of those exceptions alone that the grounds relied on in support of the refusal fall to be examined (see, by analogy, the judgment of 11 March 2009 in Case T-121-05 Borax Europe v Commission, not published in the ECR, paragraph 34).

86 Finally, in any event, the fact that the parties involved in merger investigation proceedings regard the documents which they send as confidential cannot release the Commission, when in receipt of a request under Regulation No 1049-2001, from the obligation to carry out a concrete, effective examination of the documents requested with a view to possible application of the exceptions laid down in Article 4 of that regulation.

87 In those circumstances, it cannot validly be argued that the principle of the protection of legitimate expectations has been infringed.

88 Thirdly, the Commission's argument based on Article 17(1) of the Merger Regulation, to the effect that information acquired in that regard may be used only for the purposes of the request, investigation or hearing, must also be rejected. That provision concerns the manner in which the Commission may use the information supplied and does not govern the access to documents guaranteed by Regulation No 1049-2001.

89 Accordingly, and without it being necessary to examine the applicant's argument that the third parties involved were not consulted, it is not apparent from the grounds of the decision of 13 February 2007 that, in the present case, the Commission carried out a concrete, individual examination of the documents requested in order to refuse their disclosure. The Commission thereby erred in law and the decision must therefore be annulled in so far as application of the exception based on protection of commercial interests is concerned.

90 In the light of the foregoing, there is no need at the present stage to examine whether there may be an overriding public interest justifying disclosure of the documents in question.

91 Since the Commission has also relied on the exception based on protection of the purpose of inspections and investigations in order to refuse access to the documents exchanged between it and the notifying parties and third parties, it is now necessary to examine whether access to those documents could be refused on the basis of the third indent of Article 4(2) of Regulation No 1049-2001.

The exception relating to protection of the purpose of investigations laid down in the third indent of Article 4(2) of Regulation No 1049-2001

Arguments of the parties

92 The applicant challenges the application of the exception relating to protection of the purpose of investigations laid down in the third indent of Article 4(2) of Regulation No 1049-2001, pointing out that at least partial access to the documents requested ought to have been granted and would not have undermined the obligation of professional secrecy laid down in Article 17 of the Merger Regulation. The Kingdom of Sweden submits that it follows from the Commission's assessment that no document provided in merger proceedings can be disclosed, regardless of its content or purpose. The Kingdom of Sweden maintains that that reasoning amounts to a misapplication of Regulation No 1049-2001 and of the case-law. It also submits that any interest which the Commission's may have in obtaining access to information additional to that which follows from the undertaking's legal duty to provide information is not protected by Regulation No 1049-2001.

93 The Commission, supported by PKN Orlen, invokes the legitimate expectations of the parties intervening in the administrative proceedings, related to the merger investigation, in the non-disclosure of sensitive information contained in the documents provided. In reply to a question put by the Court at the hearing, the Commission stated that its argument did not invoke the principle of the protection of legitimate expectations as such, but sought to demonstrate that disclosure of the documents requested, containing sensitive information, would undermine the climate of trust and mutual cooperation between the Commission and the parties concerned. In its view, that would adversely affect the smooth operation and efficiency of merger investigation proceedings, in which time-limits are strict, and would compromise the objective of the Commission's investigations protected by the exception in the third indent of Article 4(2) of Regulation No 1049-2001.

Findings of the Court

94 The third indent of Article 4(2) of Regulation No 1049-2001 provides that the institutions are to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure of the document concerned.

95 In the present case, application of that exception also relates to documents exchanged, on the one hand, between the Commission and the notifying parties and, on the other, between the Commission and third parties.

96 First of all, it is common ground that those documents relate to an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049-2001.

97 Next, it must be borne in mind that that provision must be interpreted as applying only if disclosure of the documents in question may endanger the completion of inspections, investigations or audits (Franchet and Byk v Commission, cited in paragraph 33 above, paragraph 109).

98 In the present case, however, the Commission's investigation which gave rise to the decision of 20 April 2005 not to object to the notified merger had been completed when the decision of 13 February 2007 was adopted. Accordingly, there was no ongoing investigation concerning the merger in question at the date of the latter decision.

99 Consequently, disclosure of the documents requested could not jeopardise completion of the investigation relating to the merger in question.

100 The Commission's argument that any disclosure of the documents provided by the parties involved would undermine the climate of trust and mutual cooperation, thereby compromising the objectives of the investigations protected by the third indent of Article 4(2) of Regulation No 1049-2001, must also be rejected.

101 In accordance with the case-law already cited (see paragraphs 57 to 60 above), the examination required for treatment of a request for access to documents must be individual and concrete. The mere fact that a document relates to an interest protected by an exception cannot suffice to justify application of that exception. Furthermore, the risk of undermining a protected interest must be reasonably foreseeable and not purely hypothetical. Consequently, the examination which the institution must carry out in order to apply an exception must be concrete and must be evident from the grounds of the decision.

102 In the present case, however, the decision of 13 February 2007 confines itself to setting out, in a general manner, the fact that all the documents in question contain sensitive information, required and provided for the sole purpose of the investigation proceedings at issue, and that their disclosure would diminish the climate of mutual trust between the Commission and undertakings, on the basis of which the latter provide the necessary information, even that not strictly required by the relevant legislation.

103 Such considerations, which are very vague and general, do not permit the view to be taken that the Commission's argument is valid in effect for each of the documents in question. The fears expressed by the Commission remain no more than mere assertions and, consequently, are hypothetical. Although there are indeed grounds for accepting that the need to preserve the confidentiality of certain information or documents justifies the Commission's refusing access to them on the basis of the third indent of Article 4(2) of Regulation No 1049-2001, it is clear that, in the present case, the Commission has ruled in abstracto on the harm which disclosure of all the documents requested might cause to its investigative activities.

104 The Commission has thus failed to demonstrate to the requisite legal standard that disclosure of all the documents in question would cause concrete, actual harm to the protection of the objectives of investigations, and the decision of 13 February 2007 is vitiated by an error of law in that regard.

105 Accordingly, the decision of 13 February 2007 must be annulled in so far as it refuses access to the documents exchanged between the Commission and the notifying parties and third parties, without it being necessary to examine whether there may be an overriding public interest justifying disclosure of those documents.

The refusal to grant partial access to the documents exchanged between the Commission and the notifying parties and third parties

Arguments of the parties

106 The applicant disputes the contention that the exceptions apply to the documents requested in their entirety. The Kingdom of Sweden submits that refusal of partial access, based on the sole fact that the information is classified as commercial and related to the investigation, shows that the Commission did not examine carefully each document. The fact that certain information features in the published decision relating to the merger in question supports the contention that there must also be other information which could have been disclosed.

107 The Commission submits that it was unable to grant partial access to the documents in question. In its view, all of the information supplied by the notifying parties and third parties is interlinked and it was not possible to identify passages to which access could be granted and which, read in isolation, might have been relevant. It adds that the published decision sets out the grounds of the decision on the merger and contains the essence of the information and the Commission's conclusions which could be made public. It takes the view that Article 4(6) of Regulation No 1049-2001 does not mean that partial access must be possible in every case.

Findings of the Court

108 In accordance with Article 4(6) of Regulation No 1049-2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released.

109 As the Commission points out, that provision does not require partial access to be made possible in all cases.

110 However, it does imply a concrete, individual examination of the contents of each document. As has already been pointed out (see paragraph 60 above), such an examination of each document alone can enable the institution to assess the possibility of granting the applicant partial access. An assessment of documents by reference to categories rather than on the basis of the actual information contained in those documents is insufficient, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents (see, to that effect, Franchet and Byk v Commission, cited in paragraph 33 above, paragraph 117 and the case-law cited).

111 In the present case, such an examination of the documents exchanged between the Commission and the notifying parties and third parties is not apparent from the grounds of the decision of 13 February 2007, as has already been established (see paragraphs 89 and 104 above).

112 In particular, the decision of 13 February 2007 refers to Article 4(6) of Regulation No 1049-2001 and refuses partial access on the ground that, in so far as the purpose of the Commission's investigation was to carry out an examination of the market conditions surrounding the intended merger and its anticipated impact on the market, the information required from and supplied by the parties was of necessity liable to cause harm to their commercial interests and to the purpose of the Commission's investigation. From this the Commission infers that it would therefore not be possible to identify the parts of the documents exchanged between it and the relevant parties 'that do not contain non-commercial information or are not investigation-related and the reading of which in itself would make sense'.

113 By so doing, the Commission thus appears to presume on the whole that disclosure, even partial, of all the documents requested would adversely affect the interests protected.

114 In consequence, it has not been shown to the requisite legal standard that the exceptions based on the protection of commercial interests and the objectives of investigations applied to the entirety of the documents exchanged between the Commission and the notifying parties and third parties.

115 Finally, the Commission submits that publication of the merger decision of itself constitutes partial access to the documents requested. Such an argument must, however, be rejected. The applicant is requesting access to the documents which led to the adoption of that decision and not access to the information contained in that published decision. Moreover, the fact that a published decision exists indicates that certain documents, or at the very least certain parts of the documents requested, could be disclosed and, as a consequence, that partial access ought to have been granted.

116 It follows from all of the foregoing that the decision of 13 February 2007 must be annulled in so far as it refuses access, including partial access, to the documents exchanged, on the one hand, between the Commission and the notifying parties and, on the other, between the Commission and third parties, since the Commission has failed to demonstrate to the requisite legal standard that disclosure of all of the documents in question would cause concrete and actual harm to the interests protected.

The refusal to grant access to legal advice, based on the exception laid down in the second indent of Article 4(2) of Regulation No 1049-2001

Arguments of the parties

117 The applicant contests the application of the exception based on the protection of legal advice, laid down in the second indent of Article 4(2) of Regulation No 1049-2001, and points out that partial disclosure was possible. The Kingdom of Sweden submits that the Commission's reason for refusing access to its internal documents, and in particular to its legal advice, is too general, particularly as the file had been closed for a relatively long time when it adopted its decision.

118 The Commission states that that exception applies to the reply from its Legal Service concerning the inter-service consultation note containing a draft decision on the merger and to the exchange of e-mails between its relevant services and its Legal Service on the draft decision. It points out that that exception is designed to protect its ability to seek and obtain full and frank legal advice from its Legal Service, something which requires a certain degree of confidentiality. It maintains that it examined carefully the content of the documents identified and provided sufficient reasons for refusing access. Partial access was not refused on the sole basis that the documents in question came from the Legal Service, but on the basis that the disclosure of the actual documents would undermine the protection of legal advice pursuant to Regulation No 1049-2001 and the case-law. It adds that, in the documents in question, it was not possible to distinguish passages to which access could be granted from those to which it could not.

Findings of the Court

119 It follows from the second indent of Article 4(2) of Regulation No 1049-2001 that the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice, unless there is an overriding public interest in disclosure.

120 In the present case, that provision concerns the refusal of access to two documents, that is to say, first, the reply of the Commission's Legal Service regarding the inter-service consultation note containing a draft decision on the notification (Internal Document 3) and, second, the exchange of e-mails concerning that draft between the competent service and the Commission's Legal Service (Internal Document 4).

121 First of all, those documents, which were sent to the Court (see paragraph 25 above), contain advice given by the Commission's Legal Service. Document 3 and, at least in part, Document 4 must therefore be regarded as legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049-2001.

122 The question then arises as to whether disclosure of those documents is liable to undermine the protection of legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049-2001.

123 In that regard, it must be borne in mind that the exception relating to legal advice must be interpreted as intended to protect the Commission's interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical (see, to that effect, Sweden and Turco v Council, cited in paragraph 57 above, paragraphs 42 and 43).

124 In addition, if the Commission decides to refuse access to a document which it has been requested to disclose, it must explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4 of Regulation No 1049-2001 (see, to that effect, Sweden and Turco v Council, cited in paragraph 57 above, paragraph 49).

125 It is, in principle, open to the Commission to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. However, it is incumbent on the Commission to establish in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose (see, to that effect, Sweden and Turco v Council, cited in paragraph 57 above, paragraph 50).

126 In the present case, the decision of 13 February 2007 refuses access to the legal advice in question by merely pointing out the need to maintain its confidentiality in order to be able to obtain full and frank legal advice.

127 By so doing, the Commission bases itself on a general consideration, capable of being raised in connection with any other request for disclosure relating to documents of the same type, without specifically ascertaining, for each of the legal opinions requested, whether that general consideration was actually applicable to the facts of the present case.

128 The decision of 13 February 2007 does not in any way explain how access to the documents requested could, having regard to the facts of the present case, specifically and effectively undermine the interest protected, that is to say, that of having the benefit of full and frank legal advice. It gives no indication as to how the risk of undermining the interest protected is reasonably foreseeable and not purely hypothetical. In the present case, the merger proceedings had been closed by decision of 20 April 2005, and thus for more than one year, when the request for access was made on 28 June 2006. Since that decision was not the subject of an appeal, it was definitive at the date on which the request was made. In addition, there is no mention of any connected pending proceedings or proceedings concerning the same sector. In those circumstances, the Commission fails to show how disclosure of the legal advice in question would, in the present case, constitute a genuine risk, reasonably foreseeable and not purely hypothetical, to the protection of its legal advice, within the meaning of the second indent of Article 4(2) of Regulation No 1049-2001. Accepting the Commission's argument in the present case would amount to permitting refusal of access to that category of documents on the sole ground that they consist of legal advice.

129 The argument, raised at the hearing, that the Commission is acting as an administrative authority and not in its legislative capacity cannot call that conclusion into question. Even if it may be inferred from the case-law of the Court of Justice that greater openness is required where the requested document has formed the basis of a legislative act (see, to that effect, Sweden and Turco v Council, cited in paragraph 57 above, paragraphs 45 and 46), openness remains the principle, including in the case where the institution is acting as an administrative authority. Such general and abstract reasoning as that used in the present case, underlying a general need for confidentiality of the Commission's legal advice, cannot be regarded as sufficient, as otherwise the principle of strict interpretation of the exceptions laid down in Article 4 of Regulation No 1049-2001, in particular of that relating to the protection of legal advice, would be undermined.

130 Finally, with regard to the refusal to grant partial access to the legal advice in question, the Commission explains that the documents concerned are very brief and that the parts which could be disclosed were not severable from those which could not.

131 That, however, cannot of itself suffice to justify the refusal of access to those documents in their entirety. Such an explanation, although relating to the content of the documents in question, leaves unanswered the question of how access, including partial access, to the legal advice in question could specifically and effectively undermine the interest protected, that is to say, the ability to obtain frank, objective and comprehensive legal advice.

132 In the light of the foregoing, the refusal to grant access, including partial access, to the legal advice requested must be annulled as being wrong in law, on the ground that the Commission has not shown that disclosure of all of the documents in question would specifically and effectively undermine the protection of legal advice, without it being necessary to examine whether there may be an overriding public interest in that regard.

The refusal to grant access to the Commission's internal documents, based on the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049-2001

Arguments of the parties

133 The applicant challenges the application of the exception based on the protection of the decision-making process regarding internal documents and points out that the decision concerning the merger in question was taken a relatively long time ago. It also contests the refusal to grant partial access to the documents in question.

134 The Commission argues that it carried out a concrete, individual analysis of the documents in question. It emphasises the collective nature of its decision-making process, for which the maintenance of confidentiality is crucial; without it, the Commission would no longer be able to rely on full and frank advice from its staff. In addition, pursuant to the actual wording of Regulation No 1049-2001, the exception applies even after the proceedings have been closed. Finally, the Commission justifies the refusal of partial access on the ground that, in the documents in question, it was not possible to separate the parts which could be disclosed from those which could not.

Findings of the Court

135 The second subparagraph of Article 4(3) of Regulation No 1049-2001 provides that access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is to be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

136 In the present case, the decision of 13 February 2007 identifies seven categories of internal documents covered by the request for access. It is common ground that some of those documents are pure transmission documents which lack substantive content and were not included in the request for access, as the applicant acknowledged at the hearing.

137 The application of the exception based on the protection of the decision-making process must therefore be regarded as concerning, apart from Documents 3 and 4 examined above in the light of the exception concerning the protection of legal advice, an inter-service consultation note containing a draft decision on the notification (Document 2) and the answers of the other services concerned with regard to that note (Document 5).

138 Firstly, it must be held that those documents, which were sent to the Court (see paragraph 25 above), are documents preparatory to the final decision and were exchanged within the Commission to enable the documents formalising the institution's position to be drafted. They contain 'opinions for internal use as part of deliberations and preliminary consultations' within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049-2001 and therefore do indeed come within the scope of that provision.

139 The applicant's argument that the decision on the merger had been taken some time previously cannot entirely preclude reliance being placed on the exception laid down in Article 4(3) of Regulation No 1049-2001, since the second subparagraph of Article 4(3) provides expressly that that exception can be invoked even after the decision has been taken.

140 Secondly, it is appropriate to consider whether the refusal to grant access to the internal documents requested is, in the present case, justified by the exception based on the protection of the decision-making process of the institution.

141 In accordance with settled case-law, application of that exception presupposes that it has been demonstrated that access to the internal documents requested was likely specifically and actually to undermine protection of the Commission's decision-making process and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical (in addition to the case-law cited in paragraphs 57 to 60 above, see also, to that effect, judgment of 18 December 2008 in Case T-144/05 Muñiz v Commission, not published in the ECR, paragraph 74 and the case-law cited).

142 In addition, in order to be covered by the exception in the second subparagraph of Article 4(3) of Regulation No 1049-2001, the decision-making process must be seriously undermined. That will be the case, in particular, where disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution as regards the disclosure in question (see, by analogy, Muñiz v Commission, cited in paragraph 141 above, paragraph 75).

143 In the present case, the decision of 13 February 2007 mentions the fact that disclosure of the documents requested would seriously undermine the protection of the Commission's decision-making process. That decision emphasises, in that regard, the collective nature of the decision-making process, the need to maintain trust and freedom of expression of the services, and the fact that disclosure of the documents requested would diminish the cooperation of those concerned by the merger.

144 First of all, it must be noted that those points of justification are put forward in a general and abstract manner without being substantiated by detailed arguments based on the content of the documents in question. Such considerations are therefore liable to be raised in respect of any other document of the same type. Accordingly, they cannot suffice as justification for refusing access to the documents requested in the present case, as otherwise the principle of strict interpretation of the exceptions laid down in Article 4 of Regulation No 1049-2001, and in particular of that laid down in the second subparagraph of Article 4(3) of that regulation, would be undermined.

145 In addition, it is clear, in the present case, that the Commission has in no way demonstrated that disclosure of the documents in question would have a substantial effect on the decision-making process in the light of the facts of the case.

146 Firstly, the Commission merely asserts that disclosure of the documents in question would undermine the collective nature of its decision-making process. Nevertheless, even if it were possible for that to be the case, disclosure of the internal documents in question is not of itself, in principle, such as seriously to undermine the protection of the Commission's decision-making process, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049-2001. Thus, such an assertion does not dispense the Commission from ascertaining, on a document-by-document basis, whether disclosure of the various opinions given by its services would seriously undermine the protection of its decision-making process. It is only once a concrete, effective examination has been carried out for each document requested that the Commission can, as necessary, judge whether disclosure, total or partial, of the internal documents in question would, by reason of their content, seriously undermine its decision-making process. It is, however, clear from the grounds of the decision of 13 February 2007 that no such examination was carried out. It follows, on the contrary, that the Commission based its findings on the nature of the documents requested rather than on the items of information actually contained in the documents in question.

147 Secondly, the Commission's argument based on trust and freedom of expression of its services must be rejected. In that regard, it must be borne in mind that such a factor does not play a decisive role, as the crucial issue is whether the concerns of the relevant institution are objectively justified (see, to that effect, Muñiz v Commission, cited in paragraph 141 above, paragraph 90). In the present case, however, the Commission's assertions are not supported by any evidence. Consequently, they appear too hypothetical to be capable of demonstrating that those concerns are objectively justified. Although the Commission's services can be required, in the context of their internal exchanges, to raise factors which may justify application of the exception based on the protection of the decision-making process, in particular with regard to notifications of mergers, that is not, however, the case, in principle, for all of the Commission's internal documents on the sole ground that they set out the opinions of those services. Such an interpretation would run counter to the principle that the exceptions laid down in Article 4 of Regulation No 1049-2001 must be interpreted strictly.

148 Thirdly, the Commission submits that disclosure of the documents in question would diminish the will to cooperate on the part of the various parties to a merger notification procedure.

149 It must be borne in mind, on the one hand, that those parties are subject, under the specific rules applicable, to certain obligations as to the supply of information and documents. On the other, the exceptions laid down in Article 4 of Regulation No 1049-2001 allow access to certain documents to be refused and are therefore intended to protect that cooperation, including informal cooperation, of the parties to the notification, on condition that the refusal to grant access has sufficient justification in law. In the present case, the decision of 13 February 2007 is not based on any particular fact in the case such as to establish the existence of a risk that the decision-making process would be seriously undermined if the internal documents requested were to be disclosed.

150 Accordingly, the Commission has not demonstrated to the requisite legal standard that the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049-2001 applied to the internal documents requested.

151 Finally, with regard to the refusal to grant partial access to the internal documents, it follows from the foregoing that, contrary to the Commission's submissions, that refusal is based on the type of documents requested rather than on their content.

152 In addition, as has already been held with regard to legal advice (see paragraphs 130 and 131 above), the Commission's explanation, consisting of an assertion that that advice is in the form of very brief documents, it not being possible to separate the parts thereof which can be disclosed from those which cannot be disclosed, cannot of itself suffice to justify the refusal to grant access to the internal documents in their entirety.

153 Accordingly, the refusal to grant access, including partial access, to the internal documents requested must be annulled as being incorrect in law, without it being necessary to examine whether there is an overriding public interest.

154 It follows from all of the foregoing that the decision of 13 February 2007 must be annulled, without it being necessary to rule on the merits of the applicant's first two heads of claim, alleging infringement of the principle of sound administration and breach of the second paragraph of Article 1 EU.

Costs

155 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

156 Under the first subparagraph of Article 87(4) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Under the third subparagraph of Article 87(4) of the Rules of Procedure, the Court may order an intervener to bear his own costs. In the present case, PKN Orlen, which has intervened in support of the Commission, is to bear its own costs.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1. Declares that the head of claim seeking annulment of the reply of the European Commission of 2 August 2006 and that requesting the Court to order the Commission to provide the applicant with the documents requested are inadmissible;

2. Annuls Commission Decision D (2007) 1360 of 13 February 2007 refusing access to documents in Case COMP/M.3543 concerning the merger between Polski Koncern Naftowy Orlen SA and Unipetrol, exchanged between the Commission and the notifying parties and between the Commission and third parties, and refusing access to the internal documents and legal advice drawn up in that case;

3. Orders the Commission to pay the costs;

4. Orders the Kingdom of Sweden, the Republic of Finland, the Kingdom of Denmark and Polski Koncern Naftowy Orlen to bear their own respective costs.