European Union: ECJ Upholds Commission’s Right To Refuse Access To Cartel Documents

On 27 February 2014, the Court of Justice of the European Union (ECJ) issued a judgment, upholding the European Commission's right to refuse access to cartel documents. In so doing, the ECJ overturned an earlier judgment of the General Court (GC) which had found that the Commission was obliged to grant an access request to a potential damages claimant.

In 2011, the German company Energie Baden-Württemberg (EnBW), which had considered suing the members of the Gas Insulated Switchgear cartel, requested access to the Commission's investigation files relating to Siemens, Areva and Alstrom, which were found to have fixed prices for equipment used in power stations. The Commission rejected this request, thereby denying EnBW the opportunity to substantiate its damage claim. EnBW brought a challenge before the GC against this decision.

The GC found that the Commission was wrong not to have handed over the documents and it over-turned the rejection decision. The Commission appealed the GC judgment to the ECJ.

The Commission argued that public-access laws should not trump legislative protections granted to antitrust investigations. The suggestion was that the disclosure of documents could jeopardise investigative strategies, deter whistle blowers and create additional administrative burdens.

The ECJ agreed, holding that the GC was wrong in its finding that disclosure of documents would not undermine the way Commission officials investigate cartels. According to the ECJ, the Commission is entitled to rely on a "general presumption" that cartel evidence should not be disclosed and there is therefore no obligation on the Commission to carry out a "specific, individual examination" of every document in a cartel file. In any event,  EnBW had simply stated that it was "utterly dependent" on disclosure of the documents in the file in question, without showing that such disclosure would have enabled it to obtain the evidence needed to establish its claim for damages as it had no other way of obtaining that evidence 

The ECJ held that the interests of potential damage claimants are not an overriding public interest capable of forcing disclosure.

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