Recent Contributions by EU General Court and European Ombudsman to Development of EU Law in “Discovery” of Documents in Antitrust Litigation
EU law does not have a procedure for “discovery” of documents in antitrust litigation, as exists in the United States (and also the United Kingdom). Nevertheless, two recent decisions, one from the EU General Court and one from the EU Ombudsman, illustrate how the procedures for public access to documents under Regulation (EC) No 1049/2001 can be used to obtain documents from the European Commission in order to support claims made in litigation. Regulation (EC) No 1049/2001 confers on all EU citizens and companies the right to request communication of copies of documents held by the Commission, the EU Council or the European Parliament (referred to generally as “EU Institutions”). This would be a very wide right of access indeed were it not for the fact that there are certain exceptions. So far the Commission has relied frequently on these exceptions in order to refuse requests for access to documents but the latest judgment of the EU General Court and the recent decision of the EU Ombudsman show that these exceptions cannot be used in the “blanket” fashion to which the Commission has previously resorted.
First a summary of the exceptions set out in Regulation (EC) No 1049/2001. Access to documents must be refused where disclosure would undermine the protection of:
- The public interest as regards public security, defence and military matters, international relations or the financial, monetary or economic policy of the European Union or an EU Member State
- Privacy and the integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data
- Commercial interests of a natural or legal person, including intellectual property
- Court proceedings and legal advice
- The purpose of inspections, investigations and audits
Access must also be refused in respect of the following “internal” documents if disclosure would seriously undermine the EU Institutions’ decision-making process:
- Any document, drawn up by an EU Institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the EU Institution
- Any document containing opinions for internal use as part of deliberations and preliminary consultations within the EU Institution concerned, even after the decision has been taken
In all cases except those numbered 1 and 2 above, the exception does not apply if there is an overriding public interest in disclosure. Thus in cases numbered 3 to 7 there is a double test before an exception can be relied upon: Are the conditions for the exception satisfied and is there no overriding public interest in disclosure?
Judgment of EU General Court in Case T-237/05, Éditions Jacob v Commission
On 9 June 2010 the EU General Court gave judgment in Case T-237/05, Éditions Jacob v Commission, a case involving the exceptions numbered 3, 5, 6 and 7 above (protection of commercial interests, the purpose of inspections, internal documents and internal legal opinions). The case arose because the French publishing company Éditions Odile Jacob (EOJ), was seeking access to documents held by the Commission which it considered useful in its parallel litigation seeking annulment of the Commission’s decision of 7 January 2004 clearing an acquisition in the media/publishing sector. The Commission communicated one of the documents requested, maintaining that the others, notably correspondence between third parties and the Commission, as well as certain internal Commission memoranda, were covered by one or other of the exceptions numbered 3, 4, 5 and 6 above.
The EU General Court rejected EOJ’s claim for access to the internal legal advice given by the Commission’s own Legal Service on the grounds that this fell clearly within exception number 4. Moreover, there was no overriding public interest in disclosure because the Commission’s Legal Service should be free to write objective internal legal opinions to the Commission’s services without the constraint of knowing that this advice might subsequently be made public.
As for all the other documents, the EU General Court annulled the Commission’s refusal to communicate these to EOJ. The principal reason in each case was that the Commission had failed to conduct a concrete, specific and individual examination of each document requested in order to justify the refusal of access. For that purpose the Commission should have balanced the public interest in disclosure against the interests underpinning the relevant exception in each case. Moreover, the Commission had failed to examine whether, in the case of documents originating from third parties, it was possible to grant partial access by requesting the third parties to prepare non-confidential summaries.
Thus the Commission’s former practice of refusing to communicate a whole category of documents, such as correspondence, without examining each individual document, has been discredited by the Court. It should be emphasised that the Court annulled the Commission’s refusal for procedural defects. The Court did not rule on whether one of the exceptions applied to a particular document or to part of the document, and, if so, whether there was an overriding public interest in disclosure. That task now falls to the Commission.
In order to guide the Commission in that task the Court made some interesting observations which can be summarised briefly as follows:
- As far as concerns exception number 5, the protection of the purpose of inspections, investigations and audits, the Commission’s obligations of professional secrecy under the Merger Control Regulation and the Treaty do not relieve it of the obligation to examine each document in order to determine whether the conditions of Regulation (EC) No 1049/2001 are fulfilled in each case. According to the established case law, if the conditions of access are satisfied under Regulation (EC) No 1049/2001, the documents in question cannot be considered as being covered by professional secrecy.
- The public interest in disclosure is not the same when a document is part of an administrative procedure (such as merger control) as when it relates to a legislative procedure. In the latter case, a higher degree of transparency is necessary to enable EU citizens to participate in the legislative process.
Recommendations of European Ombudsman on Disclosure of Documents Relating to Damages Actions before National Courts
As a result of a complaint the European Ombudsman recently issued recommendations in relation to the public interest in the communication of documents relating to damages actions before national courts. The Ombudsman became involved as a result of a complaint by a party that the Commission had wrongfully refused to grant access to five documents that the complainant needed to support a private action in damages. The Commission claimed that the documents were covered by one or more of the exceptions.
As a result of his review the Ombudsman recommended that the Commission should justify its claim for exception to disclosure individually for each of the five documents concerned. The Commission complied with this recommendation and produced a detailed report on the potential relevance that the documents could have for a damages action before a national court, demonstrating why it considered that the each of the documents was covered by the exception for the protection of commercial interests (exception number 3 above). The Ombudsman noted that, in addition to the private interest in obtaining damages from a company for infringement of EU competition law, there is also a public interest in enhancing the private enforcement of EU competition rules before the national courts. The Commission should therefore consider whether the need to facilitate actions for damages constitutes an overriding public interest which would justify disclosing the documents requested.
Taking this into consideration, the Commission concluded that there was no overriding public interest in disclosure of the documents. The Commission observed that Article 15 of Regulation (EC) No 1/2003 provides a specific procedure whereby the Commission could communicate the documents to the national court without making them accessible to the general public. The Ombudsman accepted this latter point, noting that the complainant could bring the Commission’s detailed opinion to the attention of the national court, thus enabling the court to request the documents from the Commission pursuant to the provisions of Article 15 of Regulation (EC) No 1/2003. The Ombudsman therefore concluded that the Commission had cooperated fully with the review and recommended that the Commission follow the same procedure in future cases where private litigants before national courts seek access to Commission documents for the purpose of supporting their case.
These two cases illustrate a continuing development of an EU law of “discovery” in antitrust litigation. Both the EU General Court’s judgment and the European Ombudsman’s recommendations provide a clear indication to would-be litigants in antitrust cases that the procedures for public access to documents under Regulation (EC) No 1049/2001 can be used to obtain “discovery” of documents held by the EU Institutions, whether for use in litigation against the EU Institutions themselves, or in damages claims against other parties before the national courts. Moreover, the EU Institutions cannot hide behind vague claims that one or other of the exceptions applies. They must examine case-by-case whether a document falls within a particular exception and whether there is an overriding interest in disclosure (with the exception of points 1 and 2 above concerning public security and the protection of privacy). Where, as a result of such examination, disclosure of the whole document is not possible, consideration must still be given to whether partial disclosure is possible.
To the extent that documents cannot be communicated directly to the litigant in damages actions before a national court, it may still be possible for these documents to be communicated to the national court pursuant to Article 15 of Regulation No 1/2003.