GC, 2nd chamber, February 5, 2018, No T-611/15

THE GENERAL COURT (Second Chamber),

Background to the dispute

1 The applicant, Edeka-Handelsgesellschaft Hessenring mbH, is an undertaking that carries on most of its business in Land Hessen (Germany), primarily in the wholesale and retail food sector.

2 In the context of a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA), in particular with regard to the investigation of cartels between banks in the euro interest rate derivatives sector (EIRD) ('the EIRD proceeding'), the European Commission adopted, on 4 December 2013, a decision imposing a fine on four banks which had cooperated with it in connection with a settlement procedure and had therefore received a reduction in the amount of their fine ('the EIRD decision'). The Commission's investigation in that proceeding was still under way when the application in this case was lodged.

3 By letter of 3 December 2014, Edeka Verband kaufmännischer Genossenschaften eV ('Edeka Verband') submitted, on behalf of the applicant, a request for access to the Commission's file in the EIRD proceeding in accordance with 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). That request was registered by the Commission under reference GESTDEM 2015/429 ('the first procedure').

4 By letter of 12 March 2015, Edeka Verband confirmed its request for access to all documents drawn up since 2006 containing information on the way in which the cartel's members had manipulated the Euribor rate.

5 By letter of 31 March 2015, theCommission's Directorate-General for Competition (DG Competition) refused the request for access to documents submitted by Edeka Verband ('the initial decision in the first procedure') on the basis of the first and third indents of Article 4(2) and Article 4(3) of Regulation No 1049/2001 and on a general presumption of confidentiality linked to the exception provided for in the third indent of Article 4(2) of that regulation. It also refused partial access to the documents requested.

6 By letter of 8 April 2015, Edeka Verband asked the Secretariat-General of the Commission to re-examine the initial decision in the first procedure. It stated inter alia that the refusal to grant partial access was disproportionate and that DG Competition was required at least to allow access to the table of contents of the Commission's file in the EIRD proceeding ('the table of contents').

7 By decision of 27 April 2015, the Secretary-General of the Commission confirmed the initial decision in the first procedure ('the confirmatory decision in the first procedure').The refusal to grant access to the documents in the file for the EIRD proceeding, including the table of contents, was essentially based, in the first place, on the exceptions set out in the first and third indents of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001 in order to protect, respectively, the commercial interests of the undertakings concerned, the purpose of investigations and the institution's decision-making process. Public disclosure of those documents was liable to jeopardise ongoing investigations and undermine the rules on confidentiality, the rights of the defence and the commercial interests of the parties under investigation.The refusal to grant access to the documents was based, in the second place, on a general presumption of confidentiality under the third indent of Article 4(2) of Regulation No 1049/2001 and on a consistent interpretation and application of the different rules and objectives provided for, on the one hand, in Regulation No 1049/2001 and, on the other, in Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) and Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18). That presumption prevented both total and partial access to the documents requested, including the table of contents. The refusal to grant access to the documents was based, in the third place, on the lack of any overriding public interest in disclosure, within the meaning of Regulation No 1049/2001, since that overriding interest could not correspond to the applicant's interest in bringing an action for damages. As regards the table of contents in particular, it was claimed that that table formed part of the file in the case, which had not yet closed, with the result that it was covered by the general presumption of confidentiality which prevented both full and partial access to it.

8 By letter of 13 July 2015, the adviser to the applicant submitted a request in the latter's name and on its behalf for access to the EIRD decision and the table of contents. That request was registered under reference GESTDEM 2015/4023 ('the second procedure').

9 The Commission's DG Competition replied by letter of 29 July 2015 stating that a request for access had already been submitted by Edeka Verband on the applicant's behalf and that the two documents requested, namely the EIRD decision and the table of contents, were already covered by that first request and, therefore, by the confirmatory decision in the first procedure ('the initial decision in the second procedure'). In that decision, DG Competition took the view, in essence, that the two documents requested formed part of the set of documents to which access had previously been refused in the first procedure and, in consequence, that the arguments for refusing the earlier application, set out in the initial decision and the confirmatory decision in the first procedure, applied mutatis mutandis to the second request.

10 By letter of 10 August 2015, the applicant asked the Secretariat-General of the Commission to re-examine the initial decision in the second procedure.

11 By letter of 3 September 2015, the Secretary-General of the Commission confirmed the initial decision in the second procedure ('the contested decision').First of all, in paragraph 1 of the contested decision, the Secretary-General of the Commission recalled that the initial decision and the confirmatory decision in the first procedure had refused access to all documents relating to the EIRD proceeding on the basis of the exceptions laid down in the first and third indents of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001, namely the protection, respectively, of the commercial interests of a natural or legal person, the purpose of inspections, investigations and audits, and the institution's decision-making process. Next, in paragraph 2 of the contested decision, the Secretary-General of the Commission pointed out that the initial decision in the second procedure had stated that the documents requested by the applicant, namely the non-confidential version of the EIRD decision and the table of contents, formed part of the set of documents relating to the EIRD proceeding to which access had already been refused in the first procedure, in which Edeka Verband had acted on behalf of the applicant. Furthermore, it drew attention to the fact that the Commission had not yet finalised the preparation of a non-confidential version of the EIRD decision and that the EIRD proceeding continued against the parties which were not willing to settle. Finally, in paragraph 3 of the contested decision, the Secretary-General of the Commission considered, first, that there was still no non-confidential version of the EIRD decision, making it impossible to give effect to the request for access to a non-existent document; secondly, that the request for access to the table of contents was covered by the first procedure, in which the applicant had already received a detailed explanation of the grounds for refusal in the initial decision and the confirmatory decision in the first procedure; and thirdly, that the contested decision was only confirmatory of the refusal to grant access in the first procedure, a refusal which had become final because no action had been brought against it within the prescribed period.

Procedure, events subsequent to the bringing of the action and forms of order sought

12 The applicant brought the present action by application lodged at the Court Registry on 2 November 2015.

13 In its application, the applicant claims that the Court should:

- annul the contested decision;

- in the alternative, annul the contested decision in so far as the Commission refused to grant access to the part of the EIRD decision or of the table of contents of its file relating to the EIRD proceeding whose confidentiality had not been claimed or was no longer claimed by the undertakings affected by that decision;

- in the further alternative, declare that the Commission unlawfully failed to draw up and send the applicant a non-confidential version of the EIRD decision or of the table of contents relating to the EIRD proceeding;

- order the Commission to pay the costs.

14 On 18 January 2016, the Commission lodged a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.

15 On 1 March 2016, the applicant submitted observations on the plea of inadmissibility raised by the Commission.

16 By order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission (T-611/15, not published, EU:T:2016:643), the claim for failure to act was dismissed as inadmissible and the plea of inadmissibility raised by the Commission was rejected as to the remainder. The costs were reserved.

17 On 28 October 2016, the Commission published a provisional non-confidential version of the EIRD decision on its website.

18 On 8 December 2016, the Commission lodged the defense at the Court Registry.

19 On 23 January 2017, the applicant submitted an application by a separate document for a declaration that there was no need to adjudicate on part of the action, pursuant to Article 130(2) of the Rules of Procedure.

20 On 23 January 2017, the applicant also lodged the reply at the Court Registry, in which it stated that it maintained its claim for annulment of the contested decision in so far as it refused access to the table of contents.

21 On 2 February 2017, the President of the Court reassigned the case to another Judge-Rapporteur.

22 On 10 March 2017, the Commission lodged observations on the application for a declaration that there was no need to adjudicate on part of the action submitted by the applicant.

23 On 10 March 2017, the Commission also lodged the rejoinder at the Court Registry.

24 By order of 22 June 2017, Edeka-Handelsgesellschaft Hessenring v Commission (T-611/15, not published, EU:T:2017:440), the Court decided that there was no longer any need to adjudicate on the claim for annulment of the contested decision in so far as it had refused access to the non-confidential version of the EIRD decision. The costs were reserved.

25 The Court (Second Chamber) decided, under Article 106(3) of the Rules of Procedure, to rule on the action without an oral part of the procedure.

Law

26 As a preliminary point, it should be recalled that following the orders referred to in paragraphs 16 and 24 above, the subject matter of the action is confined to the claim for annulment of the contested decision in so far as it refused access to the table of contents.

27 In support of its action, the applicant puts forward nine pleas in law: (i) infringement of the obligation to state reasons; (ii) infringement of the obligation to inform the applicant of the legal remedies available to it; (iii) infringement of the third indent of Article 4(2) of Regulation No 1049/2001; (iv) infringement of the first indent of Article 4(2) of Regulation No 1049/2001; (v) infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001; (vi) infringement of the second subparagraph of Article 4(3) of Regulation No 1049/2001; (vii) infringement of the fundamental right of access to documents; (viii) infringement of the fundamental right of access to documents and the principle of proportionality; and (ix) infringement of Article 101 TFEU.

28 In the light of the pleas and arguments raised by the applicant, the Court considers it appropriate to combine and reorganize them.

First plea: infringement of the obligation to state reasons

29 In the first plea, the applicant claims, in essence, that the contested decision infringes the obligation to state reasons enshrined in the second paragraph of Article 296 TFEU and the second sentence of Article 8(1) of Regulation No 1049/2001. According to the applicant, the contested decision does not contain the reasons for refusing to grant access to the requested document and refers only to the fact that the applicant had already received a detailed explanation of those reasons in the initial decision in the first procedure, in the confirmatory decision in the first procedure and in the initial decision in the second procedure. It contends that the reference to the reasons given in those decisions is inadequate. Since the two procedures were separate and directed at different legal persons, they should be considered in isolation, as is already clear from the order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission (T-611/15, not published, EU:T:2016:643). Furthermore, the reasons for the refusal should have been set out in the contested decision itself, having regard to the fundamental right requiring the provision of a statement of reasons as part of the fundamental rights to good administration and effective judicial protection, in accordance with Article 6(1) TEU read in conjunction with Article 41(2)(c) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, failing which it would not be possible for the applicant to exercise its right to a legal remedy to the fullest extent possible or for the EU Courts to exercise their power of review. In addition, the contested decision contains no independent ground for refusal concerning the request for access to the table of contents.

30 The Commission disputes the applicant's arguments.

31 It is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 7 July 2011, Valero Jordana v Commission, T-161/04, not published, EU:T:2011:337, paragraph 48 and the case-law cited).

32 It is also apparent from the case-law that a statement of reasons in the form of a reference may be acceptable (see, to that effect, judgments of 19 November 1998, Parliament v Gaspari, C-316/97 P, EU:C:1998:558, paragraph 27; of 11 May 2000, Pipeaux v Parliament, T-34/99, EU:T:2000:125, paragraph 18; and of 12 May 2016, Zuffa v EUIPO (ULTIMATE FIGHTING CHAMPIONSHIP), T-590/14, not published, EU:T:2016:295, paragraph 43 and the case-law cited). In addition, it has been held that a reference in a document to a separate document must be considered in the light of Article 296 TFEU and does not infringe the obligation to state reasons incumbent on the EU institutions (judgment of 30 March 2000, Kish Glass v Commission, T-65/96, EU:T:2000:93, paragraph 51).

33 In the present case, as is clear from paragraph 11 above, first, the contested decision states that the request for access to the table of contents was already covered by the first procedure, in which '[Edeka Verband] acted on behalf of the applicant', and, therefore, the contested decision was only confirmatory of the refusal to grant access in the first procedure. Secondly, the view is taken in the contested decision that the refusal to grant access in the first procedure was based on the exceptions set out in the first and third indents of Article 4(2) and Article 4(3) of Regulation No 1049/2001. Thirdly the contested decision points out that it was necessary to refer to the initial decision and to the confirmatory decision in the first procedure, stating that those decisions had already provided the applicant with a detailed explanation of the grounds for refusal.

34 Moreover, it is evident from paragraph 7 above that, first, the confirmatory decision in the first procedure to which the contested decision refers states that the refusal to grant access to the documents in the file for the EIRD proceeding, including the table of contents, was based on the exceptions laid down in the first and third indents of Article 4(2) and the first subparagraph of Article 4(3) of Regulation No 1049/2001. Secondly, the confirmatory decision in the first procedure maintains that both total and partial access to the documents was refused on the basis of a general presumption of confidentiality under the third indent of Article 4(2) of Regulation No 1049/2001 and on a consistent interpretation and application of the different rules and objectives provided for, on the one hand, in Regulation No 1049/2001 and, on the other, in Regulations No 1/2003 and No 773/2004. Thirdly, the confirmatory decision in the first procedure makes clear that the refusal to grant access to the documents was based on the lack of any overriding public interest in disclosure, within the meaning of Regulation No 1049/2001, which could not correspond to the applicant's interest in bringing an action for damages.

35 It follows that the contested decision itself sets out the reasons mentioned in paragraph 33 above and also refers to the reasons, recalled in paragraph 34 above, appearing in the confirmatory decision in the first procedure.

36 As regards the reference to the reasons for the confirmatory decision in the first procedure, in this instance, it is true that the contested decision does not constitute, in relation to the applicant, a measure which is purely confirmatory of that confirmatory decision, as stated in paragraph 61 of the order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission (T-611/15, not published, EU:T:2016:643).

37 However, the file shows that the initial decision and the confirmatory decision in the first procedure were adopted in a context which was known to the applicant. Indeed, the applicant drew attention to the conduct of that first procedure in its request for access. In addition, it is not disputed in this case that the confirmatory decision in the first procedure had been communicated to the applicant before it submitted its request for access in the second procedure (see, to that effect, order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission, T-611/15, not published, EU:T:2016:643, paragraph 52).

38 Consequently, irrespective of the independent nature of the first and second procedures, the reference in the contested decision to the reasons contained in the confirmatory decision in the first procedure is not, in the circumstances of this case, such as to infringe the obligation to state reasons.

39 Furthermore, the sufficiency of that statement of reasons in the form of a reference is confirmed by the content of the application. Indeed, the arguments put forward by the applicant in the present action concern the reasons for the contested decision as well as the reasons for the confirmatory decision in the first procedure to which the contested decision refers.

40 In addition, contrary to what the applicant claims, the contested decision contains grounds for refusal which specifically concern the request for access to the table of contents. In paragraphs 2 and 3 of the contested decision, the Commission asserts that the table of contents formed part of the set of documents relating to the EIRD proceeding to which access had already been refused in the first procedure, a procedure in which - according to the Commission - Edeka Verband had acted on behalf of the applicant. The applicant had also already been provided with a detailed explanation of the grounds for refusing access to the table of contents in the confirmatory decision in the first procedure (see paragraphs 7 and 11 above).

41 In any event, the statement of reasons for the contested decision, including the statement of reasons in the form of a reference, is nonetheless sufficient to enable the applicant to ascertain the grounds for the refusal to grant access which had been relied on and to challenge those grounds effectively before the EU judicature. Thus, since the statement of reasons for the contested decision was not such as to prejudice the applicant's right to a judicial remedy and impede the review that the Court must conduct of the contested decision, that decision could not have been adopted in breach of the fundamental right requiring the provision of a statement of reasons as part of the fundamental rights to good administration and effective judicial protection.

42 It follows from the above that the contested decision meets the requirements governing the statement of reasons under the second paragraph of Article 296 TFEU and the second sentence of Article 8(1) of Regulation No 1049/2001.

43 The first plea must therefore be rejected as unfounded.

Second plea: obligation to inform the applicant of the legal remedies available to it

44 The applicant claims that the contested decision does not contain any information on the legal remedies open to it, which infringes the right to effective judicial protection, enshrined in Article 6(1) TEU read in conjunction with Article 47 of the Charter of Fundamental Rights, and the right to receive information on legal remedies, provided for in the third sentence of Article 8(1) of Regulation No 1049/2001. Furthermore, the information provided in that regard during the first procedure cannot be taken into account in the analysis of the contested decision's lawfulness because the requesting parties and the addressees were different in the two procedures.

45 The Commission disputes the applicant's arguments.

46 As a preliminary point, it should be noted that Article 8(1) of Regulation No 1049/2001 expressly requires the institution concerned which refuses access to the requested document in whole or in part to 'inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles [263 and 228 TFEU], respectively'.

47 In the instant case, it should be noted that unlike the confirmatory decision in the first procedure, the contested decision does not contain any information on the legal remedies available to the applicant. The Commission interpreted the contested decision as only confirmatory of the refusal to grant access in the first procedure, an interpretation in accordance with which, therefore, no legal remedy was available (see paragraph 11 above).

48 As is apparent from paragraph 61 of the order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission (T-611/15, not published, EU:T:2016:643), the contested decision does not constitute, in relation to the applicant, a measure which is purely confirmatory of the confirmatory decision in the first procedure, with the result that it may be challenged under Article 263 TFEU.

49 However, in the circumstances of this case and having regard in particular to the reference made in the contested decision to the statement of reasons set out in the confirmatory decision in the first procedure, the view cannot be taken that the breach of the Commission's obligation to draw attention in the contested decision to the available legal remedies as provided for in Article 8(1) of Regulation No 1049/2001 constituted an illegality such as to lead to the annulment of the decision in that respect. In any event, it must be held that notwithstanding the lack of information on the legal remedies available to challenge the contested decision, the applicant was able to ascertain what those remedies were and bring the present action for annulment.

50 It follows that, in the instant case, the failure to inform the applicant of the legal remedies open to it cannot constitute an infringement of essential procedural requirements capable of leading to the annulment of the contested decision, since such failure had no effect on the applicant's legal situation.

51 Accordingly, the second plea must be dismissed as ineffective.

Third, fourth and ninth pleas: infringement of the first and third indents of Article 4(2) of Regulation No 1049/2001 and Article 101 TFEU

52 In the light of the arguments put forward by the applicant, the third, fourth and ninth pleas should be combined and divided into two parts. The first part alleges that there is no general presumption of confidentiality and claims infringement of the first and third indents of Article 4(2) of Regulation No 1049/2001. The second part alleges that there is an overriding interest in disclosure of the requested document and claims infringement of Article 101 TFEU.

First part of the third, fourth and ninth pleas alleging that there is no general presumption of confidentiality and claiming infringement of the first and third indents of Article 4(2) of Regulation No 1049/2001

53 The applicant essentially submits that by completely refusing it access to the table of contents, the contested decision infringed the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001, since those exceptions must be interpreted strictly. It argues, first of all, that no general presumption of confidentiality applies in this case because the request for access did not cover all the documents in the file, just one document that had been specifically identified. Next, the table of contents does not, by its nature, form part of the documents in a file relating to a cartel proceeding for which the general presumption of confidentiality was established. On the contrary, it is a document in respect of which it is necessary 'to weigh up, on a case-by-case basis, the different interests in favour of disclosure and in favour of the protection of the documents in question'. In so far as the table of contents simply lists the documents contained in the file, access to that document is not liable to undermine the interests protected by the first and third indents of Article 4(2) of Regulation No 1049/2001. Finally, the Commission did not explain why the refusal to grant access to the table of contents was necessary for the protection of the interests covered by the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001.

54 The Commission disputes the applicant's arguments.

55 As a preliminary point, it is necessary to recall the rules applicable in the present case and the principles of case-law developed in respect of access to documents.

56 By virtue of Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, are to have a right of access to the documents of the Union's institutions, bodies, offices and agencies, subject to the principles and conditions defined by way of regulation in accordance with the second subparagraph of Article 15(3) TFEU.

57 On that basis, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions, subject to - as is apparent from, inter alia, the system of exceptions laid down in Article 4 thereof - certain limits based on reasons of public or private interest (see judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 61 and the case-law cited).

58 More specifically, Article 4 of Regulation No 1049/2001 sets out a series of exceptions allowing the institutions to refuse access to a document where its disclosure would undermine one of the interests protected by that provision (judgment of 21 September 2010, Sweden and Others v API and Commission, C-514/07 P, C-528/07 P and C-532/07 P, EU:C:2010:541, paragraph 71).

59 However, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C-506/08 P, EU:C:2011:496, paragraph 75 and the case-law cited).

60 Thus, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) and (3) of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (judgments of 1 July 2008, Sweden and Turco v Council, C-39/05 P and C-52/05 P, EU:C:2008:374, paragraph 49, and of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 64).

61 However, the Court has acknowledged that it is open to the institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgment of 1 July 2008, Sweden and Turco v Council, C-39/05 P and C-52/05 P, EU:C:2008:374, paragraph 50).

62 In particular, in the case of access to documents in an administrative file relating to a proceeding under Article 101 TFEU, the EU judicature has held that the Commission was entitled to presume, without carrying out an individual and specific examination of each of those documents, that their disclosure would, in principle, undermine the protection of the purpose of inspections and investigations as well as the protection of the commercial interests of the undertakings party to the proceeding, which are closely linked in such a context (see judgments of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraphs 79 and 93 and the case-law cited, and of 13 September 2013, Netherlands v Commission, T-380/08, EU:T:2013:480, paragraph 42 and the case-law cited).

63 However, the recognition of such a general presumption does not rule out the possibility of demonstrating that a specific document in respect of which disclosure has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document concerned, pursuant to the last clause of Article 4(2) of Regulation No 1049/2001 (see judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 100 and the case-law cited).

64 It should also be noted as a preliminary point that, in this case, the document to which access was refused is the table of contents of the Commission's administrative file in the EIRD proceeding, being a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement.

65 Furthermore, it is apparent from the file that when the applicant submitted its request for access, the EIRD proceeding had not yet closed (see paragraphs 2, 8 and 11 above).

66 Moreover, the contested decision was in fact based on the presumption that disclosure of the table of contents would, in principle, undermine the purpose of investigations, protected by the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001 (see paragraphs 7 and 11 above).

67 It is in the light of those preliminary considerations that the substance of the applicant's arguments must be examined.

68 In the first place, it is necessary to reject the applicant's argument that the general presumption of confidentiality does not apply in the present case because the request for access covered just one document.

69 In that regard, it should be pointed out that the case in which the Court acknowledged the existence of a general presumption of confidentiality with respect to the documents in an administrative file relating to a proceeding under Article 101 TFEU was indeed characterised by the fact that the request for access at issue covered not just one document but a set of documents (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 69). Likewise, a significant number of the cases in which the Court has accepted the application of general presumptions of confidentiality also related to requests for access covering a set of documents (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 67 and the case-law cited).

70 However, contrary to what the applicant submits in reliance on the judgment of 7 July 2015, Axa Versicherung v Commission (T-677/13, EU:T:2015:473), it is not apparent from the case-law of the Court that a general presumption in favour of refusing access would apply only where the request for access concerns the entire file, as the Court pointed out in paragraph 41 of its judgment of 14 July 2016, Sea Handling v Commission (C-271/15 P, not published, EU:C:2016:557).

71 In addition, the EU Courts have already accepted the application of general presumptions of confidentiality irrespective of the number of documents covered by the request for access, even when just one document was the subject of the request (see, to that effect, judgments of 14 July 2016, Sea Handling v Commission, C-271/15 P, not published, EU:C:2016:557, paragraph 41; of 25 September 2014, Spirlea v Commission, T-306/12, EU:T:2014:816, paragraphs 74 and 75; and of 25 October 2013, Beninca v Commission, T-561/12, not published, EU:T:2013:558, paragraphs 1, 24 and 32).

72 It is a qualitative criterion, namely whether the documents relate to the same proceeding, that determines whether a general presumption of refusal of access may apply, and not a quantitative criterion, or in other words the number of documents, larger or smaller, covered by the request for access (see, to that effect, judgment of 25 September 2014, Spirlea v Commission, T-306/12, EU:T:2014:816, paragraph 75 and the case-law cited).

73 It is true that the case-law mentioned in paragraphs 70 to 72 above concerned requests for access to documents relating to different proceedings from the proceeding in this case. However, the principle which follows from that case-law, namely that a general presumption of confidentiality may apply irrespective of the number of documents covered by the request for access, even when just one document is covered by the request, can be transposed by analogy to the present case.

74 Regardless of the number of documents covered by the request for access, access to the documents in a proceeding under Article 101 TFEU cannot be granted without taking account of the same strict rules as regards the handling of the information obtained or compiled in the context of such a proceeding, laid down in Regulations No 1/2003 and No 773/2004.

75 In the second place, it is necessary to reject the applicant's argument that the table of contents could not be covered by a general presumption of confidentiality because of the special nature of that document.

76 Admittedly, the table of contents is a document with special characteristics in that it does not have specific content of its own, since it merely summarizes the content of the file. However, first, it is a document which organizes the file relating to the proceeding at issue and thus forms part of the set of documents concerning that proceeding. Secondly, it lists, names and identifies all the documents in the file. Thirdly, in so far as the table of contents refers to each document in the file, it is a document which reflects all the documents in the file as well as certain information on the content of those documents. Fourthly, as the Commission points out, the table of contents enables the reader to see all the steps taken by the Commission in the cartel proceeding. Accordingly, the table of contents of the cartel file may contain relevant and specific information relating to the content of the file.

77 It follows that, contrary to what the applicant maintains, the disclosure of the information included in the table of contents may, in the same way as disclosure of the documents themselves, undermine the interests protected by the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001, in so far as it may result in sensitive commercial information or information on the ongoing investigation being communicated to a third party. Furthermore, the applicant's argument based on the judgment of 15 December 2011, CDC Hydrogen Peroxide v Commission (T-437/08, EU:T:2011:752), cannot succeed, since that judgment predates the judgment of 27 February 2014, Commission v EnBW (C-365/12 P, EU:C:2014:112), in which the Court acknowledged that a general presumption of confidentiality applies to the documents in an administrative file relating to a proceeding under Article 101 TFEU (see paragraph 62 above).

78 In addition, it should be pointed out that the reasons which led the Court, in its judgment of 27 February 2014, Commission v EnBW (C-365/12 P, EU:C:2014:112), to recognize such a general presumption of confidentiality also applies to the table of contents in such a file.

79 First of all, the Court has found that the exceptions to the right of access to documents, set out in particular in Article 4 of Regulation No 1049/2001, cannot, where the documents covered by the request for access fall within a particular area of EU law, as in the case of a proceeding under Article 101 TFEU, be interpreted without taking account of the specific rules governing access to those documents (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 83).

80 Secondly, the Court has held that in a proceeding under Article 101 TFEU, some provisions of Regulations No 1/2003 and No 773/2004 lay down restrictive rules for the use of the documents in the file relating to such a proceeding, since they prescribe that the parties to a proceeding under Article 101 TFEU do not enjoy an unlimited right of access to the documents in the Commission's file and that third parties, with the exception of complainants, do not, in the context of that proceeding, have any right of access to the documents in the Commission's file (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraphs 86 and 87).

81 The Court has also taken the view that authorizing generalized access, on the basis of Regulation No 1049/2001, to the documents in a file relating to a proceeding under Article 101 TFEU would jeopardize the balance which the EU legislature sought to ensure in Regulations No 1/2003 and No 773/2004 between the obligation on the undertakings concerned to submit to the Commission possibly sensitive commercial information to enable it to ascertain whether a concerted practice was in existence and to determine whether that practice was compatible with Article 101 TFEU, on the one hand, and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission, on the other (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 90 and the case-law cited).

82 Finally, the Court has made clear that it is true that the right to consult the administrative file in a proceeding under Article 101 TFEU and the right of access to documents pursuant to Regulation No 1049/2001 are legally distinct. However, the fact remains that they lead, according to the Court, to a comparable situation from a functional point of view (see, to that effect, judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 89 and the case-law cited).

83 It follows from that case-law that the general presumption of confidentiality applicable to documents in an administrative file relating to a proceeding under Article 101 TFEU is based, in essence, on an interpretation of the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 which takes account of the strict rules as regards the handling of the information obtained or compiled in the context of such a proceeding, laid down in Regulations No 1/2003 and No 773/2004.

84 In other words, that presumption rests on the premises that, under the proceeding in question, there are special arrangements for access to the documents. The existence of such arrangements supports the presumption that the disclosure of such documents could, in principle, adversely affect the purpose served by the proceeding to which they relate (see, to that effect, Opinion of Advocate General Cruz Villalón in Council v Access Info Europe, C-280/11 P, EU:C:2013:325, paragraph 75).

85 As the Commission submits, the fact that the document the disclosure of which is sought is part of the administrative file relating to a proceeding under Article 101 TFEU is sufficient, in the present case, to justify the application of the general presumption of confidentiality to the documents concerning such a proceeding, irrespective of the number of documents covered by the request (see, to that effect and by analogy, judgment of 14 July 2016, Sea Handling v Commission, C-271/15 P, not published, EU:C:2016:557, paragraph 41).

86 Therefore, the Commission was fully entitled to state in the contested decision that the table of contents was covered by the general presumption of confidentiality applicable to the documents in an administrative file relating to a proceeding under Article 101 TFEU.

87 In the third place, it is necessary to reject the applicant's argument that, in the instant case, the Commission did not explain why disclosure of the requested document was liable to undermine the interests protected by the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001.

88 As the Commission contends, where a general presumption in favor of refusing access applies, the institution concerned need only specify on which general considerations it bases the presumption that disclosure of the documents would undermine one of the interests protected by the exceptions laid down in Article 4 of Regulation No 1049/2001; it is not under an obligation to carry out a specific assessment of the content of each of those documents (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C-514/07 P, C-528/07 P and C-532/07 P, EU:C:2010:541, paragraph 76).

89 In the case in point, the contested decision made clear that the general presumption of confidentiality relied on was based, on the one hand, on the protection of the purpose of the investigation conducted in the EIRD proceeding, in accordance with the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, and, on the other, on an interpretation of the rules of that regulation in line with the specific rules set out in Regulations No 1/2003 and No 773/2004. In addition, the Commission stated that the table of contents formed part of the administrative file for the EIRD proceeding, which had not yet closed, and that public disclosure of the requested documents, including the table of contents, was liable to jeopardize ongoing investigations and undermine the rules on confidentiality, the rights of the defense and the commercial interests of the parties under investigation (see paragraphs 7 to 11 above).

90 It follows from the foregoing that, by relying on the presumption that disclosure of the table of contents would, in principle, undermine the purpose of investigations, protected by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, the contested decision did not infringe the provisions of that article.

91 The first part of the third, fourth and ninth pleas must therefore be rejected as unfounded.

Second part of the third, fourth and ninth pleas alleging that there is an overriding interest in disclosure of the requested document and claiming infringement of Article 101 TFEU

92 In the second part of the third, fourth and ninth pleas, in the first place, the applicant essentially submits that there is an overriding public interest in having access to the table of contents in order to examine 'the possibility of bringing an action for compensation in respect of loss caused by the cartel'. Actions for compensation in respect of loss caused by the cartel represent an overriding public interest as they strengthen 'the working of the EU competition rules' and thereby make a significant contribution 'to the maintenance of effective competition in the European Union'. Furthermore, only by consulting the table of contents would the applicant be able to form an opinion on whether the documents listed in the table may be needed to support a future action for compensation. In the second place, the applicant claims that the contested decision infringes Article 101 TFEU in so far as the refusal to grant access to the table of contents prevents it in practice from actually exercising the right to compensation which it derives from that article.

93 The Commission disputes the applicant's arguments.

94 As a preliminary point, it should be recalled, as is clear from the case-law mentioned in paragraph 63 above, that the recognition of a general presumption of confidentiality does not rule out the possibility of demonstrating that a specific document in respect of which disclosure has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document concerned, pursuant to the last clause of Article 4(2) of Regulation No 1049/2001.

95 It must be pointed out that any person is entitled to claim compensation for the loss caused to him by a breach of Article 101 TFEU. Such a right strengthens the working of the EU competition rules, thereby making a significant contribution to the maintenance of effective competition in the European Union (see judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 104 and the case-law cited).

96 However, according to the case-law, it is for the person alleging the existence of an overriding public interest to state the specific circumstances which justify the disclosure of the documents concerned (see, to that effect, Commission v Technische Glaswerke Ilmenau, C-139/07 P, EU:C:2010:376, paragraph 62). A statement of purely general considerations is not sufficient to establish that an overriding public interest outweighs the reasons justifying a refusal to disclose the documents in question (see judgment of 25 September 2014, Spirlea v Commission, T-669/11, EU:T:2014:814, paragraph 92 and the case-law cited).

97 In particular, any person seeking compensation for the loss caused by a breach of Article 101 TFEU must establish that it is necessary for that person to be granted access to documents in the Commission's file, in order to enable the latter to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favor of the protection of those documents, taking into account all the relevant factors in the case (see judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 107 and the case-law cited).

98 In the absence of any such necessity, the interest in obtaining compensation for the loss sustained as a result of a breach of Article 101 TFEU cannot constitute an overriding public interest, within the meaning of Article 4(2) of Regulation No 1049/2001 (see judgment of 27 February 2014, Commission v EnBW, C-365/12 P, EU:C:2014:112, paragraph 108 and the case-law cited).

99 In addition, the interest which is represented only by the loss suffered by a private undertaking in the context of an infringement of Article 101 TFEU cannot be classified as 'public' (see, to that effect, judgments of 14 July 2016, Sea Handling v Commission, C-271/15 P, not published, EU:C:2016:557, paragraphs 97 and 98, and of 20 March 2014, Reagens v Commission, T-181/10, not published, EU:T:2014:139, paragraph 142).

100 In the present case, the Commission took the view in the contested decision that it could be presumed that disclosure of the table of contents was liable to undermine the protection of investigations, in accordance with the third indent of Article 4(2) of Regulation No 1049/2001. The Commission also considered that there was no overriding public interest, within the meaning of the last clause of Article 4(2) of that regulation, justifying disclosure of the table of contents, since that interest could not correspond to the applicant's interest in bringing an action for damages (see paragraphs 7 and 11 above).

101 The applicant's arguments do not call that assessment into question.

102 In the first place, it must be noted that the applicant merely claimed that access to the table of contents would allow it 'to form an opinion on whether the documents listed in the table may be needed to support a future action for compensation'. This very general argument is not sufficient to demonstrate how the refusal to grant access to the table of contents prevents the applicant from actually exercising its right to compensation. Consequently, the applicant does not substantiate its claim that access to the table of contents is necessary to enable it to bring an action for compensation.

103 In those circumstances, the interest in obtaining compensation for possible loss suffered as a result of a breach of Article 101 TFEU cannot constitute an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001.

104 In the second place, as the Commission points out, the contested decision cannot constitute an infringement of Article 101 TFEU since it is not based on that provision, but on the provisions of Regulation No 1049/2001.

105 Thus, the applicant failed to show that the document in respect of which disclosure was sought fell outside the scope of the general presumption of confidentiality or that there was an overriding public interest in its disclosure.

106 It follows that the second part of the third, fourth and ninth pleas must be rejected. Consequently, the third, fourth and ninth pleas must be rejected in their entirety.

Seventh and eighth pleas: infringement of the fundamental right of access to documents and the principle of proportionality

107 The applicant claims that the exceptions laid down in Article 4 of Regulation No 1049/2001 do not apply in the instant case and, consequently, that the contested decision infringed the fundamental right of access to documents, provided for in the combined provisions of Article 6(1) TEU, Article 42 of the Charter of Fundamental Rights, Article 15(3) TFEU and Article 2(1) of Regulation No 1049/2001. The applicant also pleads infringement of the provisions of the fundamental right of access to documents and infringement of the principle of proportionality, since the Commission even refused access to the part of the table of contents which was not the subject of any request for confidentiality.

108 The Commission disputes the applicant's arguments.

109 As regards the alleged breach of the fundamental right of access to documents, it is sufficient to note, as the Court pointed out in paragraphs 57 and 58 above, that that right is subject to certain limits based on reasons of public or private interest, as is apparent from, inter alia, the system of exceptions provided for by Article 4 of Regulation No 1049/2001. In the present case, as is apparent from paragraph 90 above, access to the requested document was subject to limits based on reasons of public interest and was covered by a general presumption of confidentiality based in particular on the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001.

110 As regards the argument alleging infringement of the principle of proportionality arising from the refusal to grant partial access to the requested document, it is sufficient to recall that the documents forming part of the EIRD file fall outside the obligation to disclose, in full or in part, their content, since they are covered by the general presumption of confidentiality referred to in paragraph 78 above (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C-404/10 P, EU:C:2012:393, paragraph 133, and of 14 July 2016, Sea Handling v Commission, C-271/15 P, not published, EU:C:2016:557, paragraph 63).

111 It follows that the contested decision cannot be regarded as having been adopted in breach of the fundamental right of access to documents and the principle of proportionality.

112 The seventh and eighth pleas must therefore be rejected as unfounded.

Fifth and sixth pleas: infringement of Article 4(3) of Regulation No 1049/2001

113 By its fifth and sixth pleas, the applicant essentially submits that the table of contents is not a document covered by the exceptions laid down in the first and second subparagraphs of Article 4(3) of Regulation No 1049/2001 and, therefore, the contested decision infringes those special provisions.

114 The Commission disputes the applicant's arguments.

115 In the first place, suffice it to note that the contested decision is not based on the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001. Accordingly, the applicant's argument alleging infringement of that provision is ineffective.

116 In the second place, as the Commission points out, the applicant simply alleges that the document at issue is not covered by the exception set out in the first subparagraph of Article 4(3) of Regulation No 1049/2001, without expanding on that assertion in any way. Indeed, the applicant fails to demonstrate why the table of contents cannot be regarded as a document 'drawn up by an institution for internal use".

117 In any event, errors of law or of assessment which the Commission may have committed in the implementation of the exceptions laid down in Article 4(3) of Regulation No 1049/2001 do not, in the instant case, have any effect on the lawfulness of the contested decision, since it has been held that the Commission was entitled to presume that the table of contents was covered by the exception provided for in the third indent of Article 4(2) of that regulation.

118 It follows that the contested decision cannot, on any view, be regarded as having been adopted in breach of Article 4(3) of Regulation No 1049/2001.

119 Accordingly, the fifth and sixth pleas must be rejected as unfounded and ineffective, respectively.

120 In the light of all of the foregoing, the action must be dismissed.

Costs

121 Under Article 134(1) 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. Under Article 137 of those rules, where a case does not proceed to judgment, the costs are to be in the Court's discretion.

122 In the present case, the fact that there was no need to adjudicate on part of the action is the consequence of the Commission having published the provisional non-confidential version of the EIRD decision on its website, after the action had been lodged. However, that publication is not a reply to the applicant's request for access; instead, it corresponds to the performance of the publication obligation imposed on the Commission under Article 30 of Regulation No 1/2003. Furthermore, as is apparent from the file, that non-confidential version of the EIRD decision did not exist when the contested decision was adopted.

123 Accordingly, in the light of those circumstances, since the claim for failure to act was dismissed as inadmissible and the applicant has been unsuccessful as to the remainder of its claims for annulment, it must be ordered to bear its own costs and to pay those of the Commission, including those reserved by the orders referred to in paragraphs 16 and 24 above, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1. Dismisses the action;

2. Orders Edeka-Handelsgesellschaft Hessenring mbH to pay the costs.