Competition: European Court of Justice rules on the right to access to certain of the Commission’s internal documents relating to a closed merger procedure

On 21 July 2011, the European Court of Justice (“ECJ”) partially set aside a judgment of the General Court (“GC”) and partially annulled two decisions of the Commission refusing access to certain of its internal documents relating to a closed merger procedure.

The present case forms part of a dispute originating in 2008, when the GC dismissed an action by MyTravel, a UK tour operator, who requested access to a report which was drafted by the Commission in order to consider whether it was appropriate to bring an appeal against a previous judgment and to assess the implication of that judgment for merger control procedures or in other areas. After the request had been dismissed, Sweden decided to apply to the ECJ to have the judgment of the GC set aside.

The ECJ began by examining if the documents concerned fell within the context of the administrative function of the Commission and, after having concluded that this was the case for at least some of the documents, the ECJ continued by analyzing the exceptions for protecting the decision-making process of the institution and for protecting legal advice.

The ECJ noted that the GC had not required the Commission to indicate the specific reasons why it considered that the disclosure of certain documents at issue would seriously undermine the decision making process and, subsequent to also having emphasizing the importance of openness in order to increase the level of legitimacy and confidence in the institutions, the ECJ therefore decided to set aside the judgment of the GC and annul the two decisions of the Commission on those points. Source: European Court of Justice Press Release 21/7/2011

Roschier, Attorneys Ltd. - Finland