There is a general presumption that the grant of public access to documents relating to merger control proceedings would undermine the purpose of those proceedings. The Commission does not therefore have to carry out an individual examination of each document before deciding to refuse access under EU transparency legislation. 

Amidst the recent bout of judgments painting a complex picture of access to documents in antitrust cases, the latest judgment of the European Court of Justice (ECJ) provides very clear guidance in the specific context of merger control.  Although the ECJ paid lip service to the equality of Regulation 1049/2001 (the Transparency Regulation) and Regulation 139/2004 (the Merger Regulation), in its subsequent analysis the Court recognised that the Merger Regulation contains its own complete and coherent set of rules on confidential treatment.  These rules are so specific that they displace the general provisions of the Transparency Regulation.  In the context of merger control proceedings, therefore, there is a general presumption that disclosure undermines merger control proceedings and it is not therefore necessary to assess a request for access in an “individual and concrete manner” and on a document by document basis.

Background

In two sets of parallel appeal proceedings, the European Commission sought to have overturned two judgments of the EU General Court annulling the Commission’s refusal to grant access to administrative documents requested by the French publishing company Odile Jacob in one matter, and the Czech company Agrofert in the other.  Both these companies are third parties in the context of separate merger control proceedings. 

In essence, the General Court held that even if it were accepted that the documents requested could be covered by the exceptions (see further below) the Commission had failed in its duty to show this in a concrete and individual manner.  In its assessment of whether or not the Commission is indeed under such a duty in the specific context of access to documents in merger control proceedings, the ECJ was called upon to weigh up the Transparency Regulation and the Merger Regulation, which at first glance may be considered to be in conflict with one another. 

The Transparency and Merger Control Regulations

The Transparency Regulation 
The Transparency Regulation confers on all EU citizens and companies the right to request copies of documents held by the Commission, the EU Council and the European Parliament.  It is designed to confer on the public access which is as wide as possible to documents from these institutions.  That right of access is nevertheless subject to certain exceptions, based on reasons of public or private interest.  It is a fundamental tenet of EU law that as such exceptions derogate from the principle of widest possible access, they must be interpreted and applied strictly. 

Within the context of the requests made by Agrofert and Odile Jacob for access to documents, the exceptions to disclosure under Article 4(2) are of particular relevance: access to a document is refused where disclosure would undermine the protection of

• Commercial interests of a natural or legal person (first indent)
• The purpose of inspections, investigations and audits (third indent)

unless there is an overriding interest in disclosure.

The Merger Control Regulation

In the context of access to documents, the Merger Control regulation is designed to ensure that professional secrecy is respected in merger control proceedings between companies with a Community dimension.  In such proceedings the Commission gathers commercially sensitive information relating to the commercial strategies of the companies involved, their sales figures, market shares or customer relations, etc. 

Within the context of the requests made by Agrofert and Odile Jacob for access to documents, Articles 17 and 18(3) of Regulation 139/2004 are of particular relevance.  Both restrict the use of information by limiting access to parties involved directly or otherwise, subject to the legitimate interests of the companies concerned and by requiring that the information gathered is used only for the purposes of the relevant request, review or hearing, etc.

Both Regulations Have Equal Standing 

In accordance with the ECJ’s ruling, neither Regulation is accorded primacy over the other. As a result, when assessing a request for documents it must be ensured that each of those Regulations is applied in a manner that is compatible with the other and enables a coherent application of them both.

In the case at hand, the ECJ ruled that, despite needing to interpret the exceptions strictly, and despite the equal standing of the Regulations, the first and third indents of Article 4(2) of the Transparency Regulation, interpreted in the light of the specific legislation on merger control proceedings, permit the Commission to apply a general presumption that document disclosure in the context of merger control proceedings undermines, in principle, the protection of the commercial interests involved and the protection of the purpose of investigations relating to those proceedings.  This therefore obviates the need for the Commission to carry out a concrete and individual examination of those documents.

In view of the nature of the interests protected in the context of merger control proceedings, the general presumption applies regardless of whether or not the request for access concerns merger control proceedings that have already been closed, or proceedings that are pending. 

Despite a recognition that the general presumption does not exclude the right to advance an overriding public interest in disclosure, no overriding interest was held to trump the general presumption in this case.

Conclusion

As a result of the judgment, parties to merger control proceedings can be assured that use of the Transparency Regulation to re-visit merger control approvals long after they were granted, will generally be unsuccessful in the absence of a relevant and convincing overriding interest.