On 7 October 2014, the General Court ("GC") handed down a judgment in the hotly debated area of access to the file. Damage claimants are frequently seeking access to information contained in the Commission's file in order to substantiate their claims for damages. In this case, DB Schenker had requested the Commission access to the entire case file in the air cargo investigation, to the confidential version of the Decision or to the non-confidential version of the Decision on the basis of the Transparency Regulation (Regulation 1049/2002). After the Commission denied the requests, DB Schenker appealed to the GC. Seven air cargo carriers joined the proceedings as interveners on the Commission's side.
The GC's judgment held that third parties do not have the right to access the entire case file nor the confidential version of the Decision. Disclosure would undermine the protection of the commercial interests and the protection of the purpose of the investigation. The GC held that the Commission is not obliged to assess per individual document whether disclosure can be refused on these grounds, but that it is sufficient for the Commission to conclude that the documents in its file generally fall under these exceptions.
However, the GC confirmed that third parties do have a right to receive a non-confidential version of a Decision. A non-confidential version of a decision is usually drawn up one or two years after the decision is rendered. In this particular case, however, it has been four years since the decision was rendered, and the Commission still has not drawn up a non-confidential version. Absent a non-confidential version, the GC decided that the Commission has to grant the claimants at their request access to the uncontested parts of a cartel decision.
The judgment merely confirms the disclosure policy of the Commission under the Transparency Regulation.
Please note that the European Parliament has adopted a draft directive on antitrust damages earlier this year, dealing with access to file by national courts. (See Stibbe's article).
