On 12 May 2015, the General Court ("GC") dismissed the appeal launched by Unión de Almacenistas de Hierros de España ("UAHE") against the Commission's refusal to grant access to documents (Case T-623/13). The documents contained communications between the Spanish Competition Authority ("CNC") and the Commission in relation to two draft CNC decisions on alleged infringements of Article 101 TFEU.
The Commission decision denying access was partly based on Article 4(2) third indent of Regulation 1049/2001 (the "Transparency Regulation"). This provision draws exceptions for access to documents that would undermine the protection of the "purpose of inspections, investigations and audits". In its claims, the UAHE argued that this provision referred to "institutions or organs of the Union" and not to national competition authorities ("NCAs").
The GC recalled that the communication between the CNC and the Commission took place in the context of Article 11(4) Regulation 1/2003, which places on the Member States the duty to communicate to the Commission 30 days prior to taking an Article 101 TFEU decision. In this context, the GC confirmed that the circumstance that the investigation was being carried out by a public authority of a Member State and not by an Institution of the Union does not affect the inclusion of those documents in the aforementioned provision of the Transparency Regulation. Therefore, the GC held that documents that have originated from an NCA competition law proceeding refer to an investigatory activity under that provision.
With the above considerations, the GC did not find error in the Commission's application of the presumption that documents exchanged between a NCA and the Commission pursuant to Article 11(4) Regulation 1/2003, may be protected from disclosure under the Transparency Regulation. GC dismissed the UAEH argument that this presumption is inapplicable given that the CNC proceedings have concluded. The GC held that the interest in keeping a functioning exchange of information between the different public authorities of the Member States necessitates the maintenance of confidentiality. Therefore, the GC stated that the presumption would continue to be applied even after the CNC proceedings have been concluded.
