By the same token, the Court of First Instance held that public access granted under Regulation No 1049/2001 was not tantamount to a form of discovery: The fact that the applicant requesting the documents needed them to support a claim in damages against the Commission did not confer any greater interest or right to obtain the documents under Regulation No 1049/2001.
The judgment is quite interesting too because the Court of First Instance interprets the exception concerning the preservation of the "decision making process" under Article 4(3), second subparagraph and the protection of "court proceedings and legal advice" under Article 4(2), second indent of Regulation 1049/2001 for the first time in relation to documents drafted for internal use in the context of an administrative procedure.
This is the story. In 2002 the Court of First Instance forcefully annulled the Commission's decision prohibiting a merger in Case T-342/99 Airtours v. Commission. Following that judgment the Commission established an internal working group to examine whether an appeal against the judgment was appropriate and to review the implications of the judgment for the administrative merger procedures or other competition procedures. An internal report was drawn up. In June 2003 Airtours (renamed My Travel) brought an action for damages in Case T-212/03 against the Commission to obtain compensation for the loss it claimed to have suffered as a result of the initial prohibition decision (more about that judgment in a later post). To support its action for damages, My Travel requested access to the report of the Working Group and other internal documents under Regulation 1049/2001. The Commission granted full or partial access to some working papers but refused access to report of the Working Group and the remainder of the documents requested.
The Commission's refusal under Regulation 1049/2001 was based on the exceptions of the protection of the decision making process (Article 4(3) second subparagraph), the protection of the purpose of the investigations (Article 4(2) third indent) and the protection of court proceedings and legal advice (Article 4(2) second indent).
The Court of First Instance basically upheld the Commission's refusal.
The Court held that the interest of the public in obtaining access to documents does not carry the same weight in the case of administrative proceedings - antitrust procedures in particular - as in the case of legislative proceedings. It held that the risk of the Commission's decision-making process being seriously undermined, if internal documents were made public, was reasonably foreseeable and not purely hypothetical. The Court took account of the right of the Commissioner for Competition to obtain candid and complete opinions from the bureaucratic services and of the fact that making public preparatory documents would risk seriously undermining the decision-making freedom of the Commission.
The Court gave a fairly broad meaning to the exception relating to the exception concerning the protection of court proceedings and legal advice. It held that disclosure of the notes of the Commission's legal service could lead the legal service to display reticence and caution in the future in the drafting of such notes in order not to affect the Commission’s decision-making capacity in areas in which it is involved in its administrative capacity. Furthermore, the Court confirmed that disclosure of that advice would risk putting the Commission in an invidious position in which its legal service might have to defend a position before the Court which was not the same as the position it had taken internally in its advisory capacity.
All in all, a surprisingly expansive view of the exceptions to public access to documents.