Don't bank on the Transparency Regulation to give you access to
the Commission's confidential cartel files to substantiate your
civil damages claims. A ruling by the General Court suggests that
access will be rarely granted. Instead, national courts may lend
you a hand by asking the Commission to transmit relevant
information.
The Netherlands requested access under the Transparency Regulation
to the confidential version of the Commission's road bitumen
cartel decision. The Netherlands argued it needed this information
to further substantiate its civil damages claim against the alleged
cartel members. The General Court found that the Commission rightly
rejected the request on the basis of Article 4(2) of the
Transparency Regulation. The Court also held that a general
presumption applies under the Transparency Regulation that
disclosure of documents collected in the context of competition
investigations will undermine the commercial interests of the
companies concerned as well as the purpose of the Commission's
investigation. This general presumption applies regardless of
whether the cartel proceeding is still pending or has been
closed.
It is up to the party seeking access to rebut this general
presumption by, for instance, claiming an overriding public
interest. The General Court ruled that the Netherlands did not have
an overriding public interest because the further substantiation of
a civil damages claim qualifies not as a public but as a private
interest. The fact that the Netherlands is an EU member state does
not make this any different since the Transparency Regulation does
not grant any special status to EU member states: it applies
equally to all applicants requesting access. The General Court did,
however, mention that it is up to the competent national court
before which the civil damages claim is brought to rule on the
mechanisms for submission of the necessary evidence. It could
request the Commission to transmit relevant information and
documents, particularly since Article 15(1) of Regulation 1/2003 provides that national
courts involved in proceedings relating to EU competition law can
ask the Commission to transmit information in its possession to
those courts or for its opinion on questions concerning the
application of the EU competition rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
