Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The European Court of Justice held that EU institutions may rely on a general presumption that disclosure of documents exchanged between the European Commission and undertakings in the course of merger control proceedings undermines both commercial interests and the objective of investigative activities. However this exception to disclosure can be defeated by an overriding public interest and the presumption does not apply to internal EU documents once the proceedings are closed.
This case analysis was contributed by Right2Info.org.
This is an appeal of a 2010 decision by the General Court to annul the European Commission’s decisions to refuse to disclose documents relating to merger control proceedings to the Czech company Agrofert, a third party in the merger. The Commission opened the merger control proceedings under the Regulation on the Control of Concentrations (Regulation No 139/2004) which provides a mechanism for the control of “concentrations” – mergers, acquisitions of control and the creation of full-function joint ventures – at the EU level. Generally, EU concentrations are investigated by the Commission, whereas National Competition Authorities investigate those without the EU dimension in accordance with their domestic merger control rules. Transactions falling under the Regulation must be notified to the Commission and generally cannot be implemented until the Commission declares them compatible with the internal market.
To justify its refusal of disclosure, the Commission relied on the protection of commercial interests; the purpose of investigations with regard to documents exchanged between the Commission and the parties; and the decision-making process and protection of legal advice with regard to the Commission’s internal documents. The General Court held that even if the documents requested could be covered by the exceptions relied on by the Commission, the Commission had failed in its obligation to demonstrate, in a concrete and individual manner, that those documents did in fact undermine the interests protected by those exceptions. The latter could only be done by concrete, individual examination of each document which the Commission had failed to carry out.
The Court discussed separately the two sets of documents at issue: 1) documents exchanged between the Commission and the parties, and 2) the Commission’s internal documents. With regard to the first set of documents, the Court noted that it needed to analyse the relationship between two regulations, one on access to documents and the other on the control of concentrations. While the regulations did not contain provisions expressly giving one of them primacy over the other, the Court found that it was appropriate to ensure that they were applied coherently (paras. 51-52).
The Court went on to acknowledge that in the course of merger control proceedings, the Commission gathers commercially-sensitive information relating to the commercial strategies of the parties involved, sales figures, market shares, customer relations, and other similar information that may undermine the protection of the commercial interests of the parties (para. 56).
The Court concluded that, as with certain other categories of documents, there exists a general presumption that disclosure of documents exchanged between the European Commission and related parties in the course of merger control proceedings undermines, in principle, both the objective of investigative activities and of the commercial interests of the parties involved in those proceedings (para. 59). This presumption is supported by the fact that the Regulation on the Control of Concentrations sets strict rules regarding the treatment of information obtained or established in the context of the proceedings. To decide differently would undermine the aim of the Regulation on the Control of Concentrations. Thus, the Commission was right not to undertake an individual examination of each requested document. This general presumption must be acknowledged irrespective of whether the request for access relates to control proceedings which are already closed or to pending proceedings.
Finally, the Court acknowledged that the general presumption does not exclude the right of the interested party to show that there is an overriding public interest which justifies disclosure of the documents requested. However, the Court found that Agrofert did not demonstrate any overriding public interest as to justify disclosure of the documents concerned.
With regard to the Commission’s internal documents, the Court upheld the General Court’s judgment and found that, since the merger control proceedings had already been closed and the Commission’s decision was final, the Commission was obliged to give specific reasons, supported by detailed evidence based on the content of the documents, to demonstrate that disclosure would seriously undermine the decision-making process and the protection of legal advice.
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