In its judgment of 13 September 2013 (Case T-380/08), the General Court upheld a Commission decision denying the Kingdom of the Netherlands ("the Netherlands") access to the full confidential version of the Commission's Bitumen Decision. The Netherlands applied for access under Regulation 1049/2001 regarding public access (the "Transparency Regulation"), claiming that inspection of the confidential version of the Bitumen decision would aid it in instigating damages claims against the alleged infringers.
The main argument of the Netherlands was that the Commission could not base its refusal to grant access on the grounds that publication of the confidential information in the Bitumen Decision might undermine the commercial interests of the alleged infringers as well as the purpose of the Commission's investigations. The GC rejected this argument. It confirmed that there exists a general presumption, which may be rebutted, that the confidential version of a Commission decision establishing an infringement of Article 101 TFEU falls within the scope of the Transparency Regulation's provisions exempting the disclosure of information. According to the GC, this presumption exists irrespective of whether the decision has already become final or appeals are still pending. The GC furthermore held that the Commission may rely on this presumption when refusing access to documents in its file.
Also noteworthy is the GC's finding that there did not exist an overriding public interest warranting publication of the confidential version of the Bitumen Decision. The Netherlands asserted that an overriding public interest was present and consisted of competition law compliance and the fact that any overcharges were paid with tax-payer money by the government of a Member State. However, the Court found neither of these arguments particularly convincing and thus rejected them. Moreover, the Court observed obiter that it is upon the competent national judge to evaluate whether access to the confidential decision or parts thereof is necessary to rule on a follow-on damages claim. In doing so, the GC could be suggesting that the preferred method of obtaining access to the Commission's file is for a national judge to ask the Commission to transmit the relevant information to them rather for plaintiffs to submit an application for access under the Transparency Regulation.
