On 7 October 2014, the EU General Court ("GC") accepted that there was an overriding interest in public disclosure of documents in the air cargo cartel and thus partially upheld an appeal brought by Schenker AG against a European Commission decision refusing access to documents. Regulation (EC) No. 1049/2001 regarding public access to European Parliament, Council and Commission documents (the "Transparency Regulation") lays out a general right of access to documents of the EU institutions. There are however a number of exceptions. For example, access may be refused where the commercial interests of the parties concerned would be undermined. The GC clarified that a determination of whether documents may be disclosed requires a balancing of competing interests to be undertaken on a case-by-case basis. In particular, the Transparency Regulation must be weighed against Regulation 1/2003 which is designed to ensure compliance with the duty of professional secrecy in proceedings relating to infringements of EU competition law.
The GC rejected Schenker's plea that the Commission had to carry out an individual examination of each document that makes up the file. The Commission, in refusing access, may decide that an entire category of documents should not be disclosed. Schenker had not established how access to documents in the case file or to the full text of the decision was necessary such that the public interest would override the commercial interests at stake.The argument was also raised that the requested documents should be provided given that, in the meantime, the Commission had issued its decision closing definitively the case. The GC also rejected this plea, pointing out that the Commission could be required to resume the investigations following the annulment proceedings pending before the GC.
Nevertheless, while all of Schenker's other arguments were rejected, the GC did accept that the Commission had violated the requirement under the Transparency Regulation that, if only parts of the document for which access is requested are covered by any of the exceptions, the remaining parts of the document must be released. The GC opined that nothing prevented the Commission from providing Schenker with a non-confidential version of its cartel decision with the parts which were not the subject of confidentiality requests without waiting for all requests for confidential treatment to have been finally settled.
The GC upheld a broad interpretation of the exceptions under the Transparency Regulation by taking the competitive landscape and the nature of the information into consideration. While accepting that some parts of the documents should be released, the GC still confirmed that the Commission may exclude an entire category of documents from disclosure. This case could be seen as a win for the individual's right of access to documents in competition proceedings, but a moderate one. The Commission was only obliged to provide a non-confidential version of the decision implying that it was still the commercial interests of the involved undertakings which were given preference.
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