The European Commission deals with a series of competition cases that are highly relevant for third parties, such as potential victims looking to seek compensation through private damages claims. If you are in such position and question whether you may have access to the information and documents in the Commission’s file despite not being a part therein, there are good news for you.

As a resident of the Union you are entitled to access EU institutions’ documents, as recognised by Article 15 TFEU and Article 42 CFREU. The principles, conditions and limits for public access to such documents are set in Regulation 1049/2001 on public access to EU institutions documents.  Although it generally refers to all documents of the EU institutions, without any reference to the competition files, its provisions are regularly invoked by both citizens/residents demanding access to such documents and, on the other side, by the Commission for denying access in certain circumstances.

However, one should be aware that the right to access is not without limitation and certain documents in the file cannot be disclosed for reasons of: public security, commercial interest of a natural or legal person (i.e. business secrets) or purpose of inspections and investigations. Access to internal Commission documents may also be denied “if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure” (Article 4(3) (2)).

Limitations to the access to documents within the Commission’s files are interpreted restrictively both by the Commission and the EU courts, based on a permanent “balancing of the opposing interests in a given situation, namely the interests which would be favored by the disclosure of the documents in question and those which would be jeopardized by such disclosure (Recital 20 of the Directive 104/2014).” The Commission shall explain how the access to certain documents could “specifically and effectively undermine the interest protected by an exception” (e.g. TGI case).

To increase the chances for a positive reply in your request you should point out as precisely and narrowly as possible the documents you need access to. The Commission pays a particular attention to preventing the so-called “fishing expeditions” in case of “non-specific or overly broad searches for information that is unlikely to be of relevance to the parties” (Recital 23 of the Directive 104/2014).  For example, a generic request for disclosure of the entire file might be appraised by the Commission as “disproportionate” and thus, rejected. 

After receiving a request, the Commission will individually assess the documents referred to, in order to determine “the extent to which an exception to the right of access is applicable and to consider whether partial access would be granted” (Verein fur Konsumenteninformation v Commission ). A derogation from this obligation, may be accepted only in exceptional circumstances “where the administrative burden entailed by a concrete, individual examination of the documents proves to be particularly heavy, exceeding the limits of what may reasonably be required.” However, it is worth mentioning that more recently, the Courts have held that the Commission may rely on general presumptions about certain categories of documents to refuse access, without a concrete individual examination of each document (Netherlans v Commission).

In addition to your right to access the Commission’s files, you may have the right, subject to reasoned and specifically justification (e.g. private claims for damages), to request the national court to ask from the Commission relevant documents and information, in accordance with Article 15(1) of the Regulation 1/2003 (“Regulation”) or Para 21 of the Commission Notice on co-operation between the Commission and the Courts of the EU Member States in the application of Article 101 and 102 TFEU. Directive 104/2014 also confirms that “it is appropriate to ensure that claimants are afforded the right to obtain the disclosure of evidence relevant to their claim” (Recital 15).

However, the files may contain some sensitive categories of information and documents such as leniency documents and settlements that cannot be disclosed although they might be highly relevant for potential infringement claimants. 

It was said that when dealing with a request for the disclosure of leniency documents, the national court faces „one of the strongest clashes between private and public enforcement of the competition law” (Pablo Gonzales de Zarate Caton, Disclosure of leniency materials). If self-incriminating statements are to be disclosed, companies can be deterred from cooperation under leniency programmes and consequently, a strong public interest may be endangered. Before the Directive 104/2014 (transposed in Romania through GEO 39/2017), the courts had to constantly balance and “weigh the interests in favor of disclosure of the information and in favor of the protection of that information provided voluntarily by the applicant for leniency (Pfiederer Case). Member States applied their own rules on access to leniency documents considering “the general obligation not to render implementation of EU law impossible or excessively difficult and the requirement not to jeopardise the effective application of Article 101/102.” However, once Directive 104/2014 came into force, the uncertainty inherent in case by case approach was replaced with an absolute prohibition on the disclosure of leniency statements (Article 6 (6) of the Directive).

As to the settlement submissions (more and more frequent in infringements of Article 101 and 102 TFEU), they are self-incriminating documents too and thus, they benefit from a disclosing regime similar to the leniency statements, although they could be very useful in a damages claim. It worth mentioning the exception for the settlement submissions that have been withdrawn – they may be disclosed according to Article 6 (5) of the Directive.

„Most likely yes”, would say the single economic entity doctrine (SEE).

The SEE seems to be an abstract concept but it has very concrete consequences. It seems to design a flexible boundary of each undertaking by defining it as “an economic unit for the purpose of the subject-matter of the agreement in question even if in law, this economic unit consists of several persons” (see Hydrotherm or Shell Case).

From the competition point of view, an undertaking may consist in a single entity or in an economic unit including both the controlling entity and the controlled ones which do not have real freedom in determining their actions in the market. The courts decided that: a) a parent and its subsidiaries (e.g. Viho Case) or b) a principal and its agent when the agent does not take financial and commercial risks (e.g. DaimlerCrysler Case) or c) in some circumstances, a joint venture and its parents form a SEE and thus, a single undertaking.

In order to determine if an entity enjoys real autonomy or in other words, if a company exercise decisive influence over another, a test of control shall be passed. The control test is based on various factors such as: the shareholding that a company has in its subsidiary, the board of directors, the instructions received from the parent and similar matters.

The courts held a rebuttable presumption (see Case T-24/05 where it was rebutted by a member of the group companies) of decisive influence over the subsidiary in which the parent has 100% stake. Moreover, in some more recent cases, the concept of SEE was invoked even where a parent has a negative control (e.g. veto rights) over its subsidiary.

Despite its rather abstract nature, the SEE doctrine has many real consequences, such as:

1) An agreement between entities within an SEE does not infringe competition law because they are considered one and the same economic unit.

2) The parent company, exercising a decisive influence over the subsidiary may be held liable for the anticompetitive behaviour of the subsidiary, without any obligation “to establish personal involvement of the parent in the infringement” (see Akzo Nober Case).

This use of the SEE doctrine is somehow controversial and sometimes deemed “unconvincing, illogical and breaches the principle of personal responsibility and the presumption of innocence” (e.g. Ooms Avenhorn Holding v. The Netherlands). Conversely, the courts noted that: “since any gains resulting from illegal activities accrue to the shareholders it is only fair that those who have the power of supervision should assume liability for the illegal business activities of their subsidiaries” (Dow Chemical Case).

3) In case of an SEE, the fine provided by Article 23 (2) of the Regulation 1/2003 as well as by Article 69 of the Romanian competition law refers to the entire group’ turnover not only to the turnover of the subsidiary which had an anticompetitive behaviour.

4) Private claim for damages can be submitted either against the parent company or against the subsidiary.