On 15 December 2011, the General Court of the European Union ("GC") ruled that the European Commission was mistaken in its refusal to disclose the index of its investigative file on a cartel arrangement for a bleaching chemical used in the paper industry (hydrogen peroxide).
The applicant, Cartel Damage Claims ("CDC"), is a limited company whose purpose is to bring actions on behalf of undertakings affected by cartels. On 14 March 2008, CDC sought from the Commission, on the basis of Article 2(1) and Article 11(1) and (2) of Regulation (EC) No 1049/2001 (the so-called "Transparency Regulation"), full access to the statement of contents (index) of the investigation file which led to the Commission Decision of 3 May 2006 fining the hydrogen peroxide cartel. This request was in anticipation of a multi-million euro claim for damages that CDC was planning to launch (in March 2009) in the Dortmund Regional Court (Germany) against the infringing members of the bleach cartel, including Evonik Degussa, the whistleblower who revealed the existence of the cartel to the Commission. CDC and Evonik Degussa later reached an agreement and CDC discontinued its application before the Regional Court with regards to Evonik Degussa.
Relying on the exceptions provided for in Article 4(2) of the Transparency Regulation, the Commission rejected the application for disclosure, among other reasons, on the ground that disclosure of the statement of contents would undermine protection of both the purpose of the investigation activities and the commercial interests of the undertakings which took part in the cartel. The Commission also pointed to the fact that as a result of the agreement between Evonik Degussa and CDC, it was possible that CDC now had access to the information which it sought to obtain from the statement of contents.
CDC lodged an appeal with the GC and argued that the exception for the protection of the commercial interests of a given undertaking does not apply to the present case in as much as the statement of contents does not reveal any business or professional secrets, but merely provides administrative information. CDC also claimed that the Commission erroneously balanced the interests of undertakings which took part in the cartel, on the one hand, against those of undertakings damaged by the cartel, on the other, since it gave preference to protection of the interests of the undertakings to which the hydrogen peroxide decision was addressed, notwithstanding the fact that, according to case-law, those interests do not deserve any special protection. Finally, CDC relied on the absence of a causal link between disclosure of the statement of contents and the danger of undermining the Commission's task of preventing anti-competitive practices. The Commission had argued that it denied CDC access to the index specifically to protect the effectiveness of its leniency programme which would be jeopardised if the documents supplied by whistleblowers were to be disclosed. CDC, however, sought to dispel this argument and it emphasised that, notwithstanding the growing number of actions for damages, the number of requests for immunity is not decreasing. CDC also argued that the conditions for this exception were not fulfilled since the investigation activities undertaken in the context of the bleaching chemicals cartel investigation had been completed.
The GC has now ruled in favour of CDC. It accepts that the Commission had not established, to the requisite legal standard, that disclosure of the statement of contents would specifically and effectively undermine protection for the purposes of this investigation. The ruling also states that such disclosure would not affect the interests of undertakings which took part in the cartel since the statement of contents cannot be regarded as itself forming part of the commercial interests of the undertaking concerned as it contained no commercially sensitive information.
The judgment made clear that, even though the Commission sought to protect the leniency programme by denying access to the index, this was "not the only means of ensuring compliance and cooperation with EU competition law" and that "actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the EU". The ruling goes on to acknowledge that, whilst the Commission (or any regulator) can call on legal exemptions to prevent certain information from being made public, in this case, such disclosure "would not undermine the interests of the Commission or the cartel members".
It would seem that, as a result of this judgment and previous rulings of a similar nature, the GC has set quite a high threshold by which the Commission can justify refusing access to certain documents of its investigation files. The GC made clear in its decision that the Commission had not sufficiently explained why the document in question was capable of falling within the exceptions for non-disclosure (under Article 4(2) of the Transparency Regulation) and that the Commission should have examined the document more thoroughly before deciding to restrict access to it.
