On 19 November 2014, the Court of Appeal of Brussels ("the Court") issued an interim judgment ordering the Belgian Competition Authority ("BCA") to grant to a third party access to the inventory of the procedural file and limited access to the content of the procedural file in a merger case involving its competitors.
De Persgroep NV was registered as an interested third party in the merger proceedings before the BCA between Corelio NV and Concentra NV, two competitors of De Persgroep in the publishing sector. These proceedings led, on 25 October 2013, to the conditional clearance of the creation of a joint venture called "Mediahuis" (See VBB on Belgian Business Law, Volume 2013, No. 10, p.4, available at www.vbb.com).
De Persgroep decided to appeal from the BCA's clearance decision. De Persgroep requested, as an interim measure, that the BCA be ordered by the Court to submit to the Court: (i) the confidential and non-confidential versions of the contested decision; (ii) the erratum related to both versions of the contested decision; and (iii) the inventory of the procedural file and of the investigation file, in order for the Court to give access to the non-confidential version of the objected decision and erratum and to the inventory of the procedural and investigation file to De Persgroep. At a later stage, De Persgroep would then request access to specific documents of the file, based on the inventory. The BCA, together with Corelio and Concentra, objected to this request, alleging that the Code of Economic Law does not provide for a right of access to documents by a third party in competition cases.
The Court decided to accede partially to the request of De Persgroep.
In essence, the Court held that the effectivity of the appeal procedure and the exercise by the Court of its full jurisdiction require that the pleas are liable to be substantiated by the information included in the file about the notified concentration. This encompasses all factual and legal circumstances relevant to the case. The Court also noted that the grounds of appeal submitted by De Persgroep could not be deemed manifestly unfounded on the mere basis of the information contained in the application.
Therefore, the Court ordered to be given access to the concentration file such as it was communicated to the Competition College of the BCA, as well as to other documents which were submitted to the College, in accordance with Article IV.79(5) of the Code of Economic Law. The Court determined that this access would cover: (i) all documents and submissions filed by the College of Competition Prosecutors before the Competition College in the context of the concentration; (ii) all documents supporting the draft decision of the Competition Prosecutor; (iii) all submissions by notifying parties and interested third parties to the Competition College; (iv) the adopted decision(s) and all their possible addenda, amendments and implementing instruments; (v) all correspondence and emails exchanged by the Competition College; and (vi) the inventory of documents describing and listing the documents mentioned under (i) to (v).
As regards the right of an interested third party, such as De Persgroep, to obtain access to these documents, the Court first noted that the contested decision had a subjective dimension as regards De Persgroep since its interests are individually and directly affected by the concentration between its competitors.
Also, the Court considered that the pleas put forward by De Persgroep were unable to be heard properly if De Persgroep could not access or be informed of the content of the documents of the procedural file supporting the contested decision. Thus, the principle of equality of arms, the effectivity of the appeal and the exercise by the Court of its full jurisdiction required that De Persgroep be granted access to the procedural file.
In practice, the Court decided to give De Persgroep access to the inventory of the file, further to which De Persgroep was given a month to identify the documents to which it felt access should be granted or about which information should be provided in order to enable it to have an effective right of appeal against the contested decision. De Persgroep would have to provide reasons for such requests. Significantly, the Court did not extend such access to the investigation file which, as the BCA stated, is not available to the Competition College when it decides on a case. Finally, the Court did not give De Persgroep access to the non-confidential version of the challenged decision, since the company had already received it.
