European Union: General Court Confirms Inaccessibility Of Inability To Pay Requests

Last Updated: 17 April 2014
Article by Van Bael Bellis

On 24 March 2014, the General Court of the European Union ("GC") delivered its judgment on an appeal by Reagens SpA ("Reagens"), seeking the annulment of a European Commission decision refusing access to file documents in the heat stabilisers cartel case.

In November 2009, the Commission had fined 24 companies, a total of EUR 173,864,000 for breaching Article 101 TFEU due to their involvement in two illegal cartels in relation to plastic additives used as heat stabilisers. Reagens was fined EUR 10,791,000 for its participation in the cartel.

During the administrative procedure which preceded the adoption of the cartel decision, Reagens and two other companies had requested that their inability to pay be taken into account in setting the fine. The requests of Reagens and of one other company were denied.

Reagens brought an action before the GC, seeking the annulment of the Commission's rejection decision. Reagens sought access to documents relating to inability to pay requests made by the other participants in the cartel. The Commission refused to disclose these documents, relying on Regulation 1049/2001 which sets out the conditions under which EU institutions must provide access to documents. Article 4(2) of this Regulation provides that an institution can refuse access to a document where disclosure would undermine the protection of commercial interests, court proceedings, inspections, investigations and audits unless there is an overriding public interest in disclosure to third parties.

According to the GC, the Commission had erred in its finding that non-confidential versions of the undertakings' initial inability to pay requests and the Commission's standard first questionnaire were covered by the exception from disclosure relating to the protection of commercial information and the protection of the purpose of Commission investigations. These documents should, therefore, have been disclosed.

On the other hand, the Commission was entitled to decide that the undertakings' responses to the first questionnaire, the second targeted and specific questionnaires sent by the Commission, and the undertakings' replies to those questionnaires were protected from disclosure as these documents contained confidential information about the undertakings' financial position.

The GC rejected Reagens' claim that the Commission did not carry out the required concrete, individual examination of the requested documents to determine whether the exceptions in Article 4(2) applied. The Court did note, however, that to justify a decision to refuse access to a requested document, the Commission must explain how access to that document could specifically and actually undermine the interest protected by the exception.

The GC did not consider that the risk that the undertakings' creditors might withdraw could arise from the mere fact that the undertaking requested that its ability to pay be taken into account. Such a risk exists as soon as the creditors of the undertakings become aware of an investigation which is liable to result in heavy penalties. The Commission could not, therefore, refuse access to the undertakings' requests for the purpose of protecting their commercial interests.

The Commission claimed that Reagens' interest in disclosure was of a private nature and that there were no elements showing the existence of an overriding public interest.

The GC noted that the interest of the public in obtaining access to a document pursuant to the principle of transparency, does not, in general, carry the same weight where the document relates to an administrative procedure intended to apply the competition rules as compared to a situation where the document relates to a procedure in which the institution acts in its capacity as legislator.

Further, the purpose of better preparing an action against a decision does not, as such, constitute an overriding public interest in disclosure prevailing over the protection of confidentiality. Therefore it was not relevant that the documents requested might prove necessary for Reagens' rights of defence in the context of a court action.

The GC also noted that the failure by the Commission to disclose the names of the undertakings which had made inability to pay applications did not infringe the Commission's obligation to state reasons. The Commission, in its decision, had already set out its reasoning in a clear and unequivocal manner.

This judgment marks another interesting development in the increasing case law relating to requests for access to documents, by both parties which are subject to Commission investigation and by third parties.

An appeal by Reagens against the Commission decision relating to the heat stabiliser cartel is still pending.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions