The Principle of Transparency and its Limits in the context of Competition Investigations

Descriptors: Access to files; confidential information; internal documents; rights of defence.

Regulation No 1/2003, Regulation No 1049/2001

The European Commission has the power not only to find that certain companies have infringed EU competition rules but it can also impose heavy fines on such companies.¹¹Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [now Articles 101 and 102 TFEU] ([2003] O.J. L 1/1). These considerable powers of the Commission require strict respect for the rights of the defence. Companies under investigation must therefore be able to state their case before the Commission adopts its final decision.²²ECJ, Aalborg Portland and Others v Commission, C-204/00 P , C-205/00 P , C-211/00 P , C-213/00 P , C-217/00 P and C-219/00 P , EU:C:2004:6, para. 66; ECJ, Solvay v Commission, C-110/10 P , EU:C:2011:687, para. 48. Since the Commission’s position is never plucked out of thin air but is always based on the interpretation of documents in its file, companies under investigation must be given access to the Commission’s file.³³Article 27(2) of Regulation No 1/2003. ECJ, Aalborg Portland and Others v Commission, cited in n. 2, para. 68; ECJ, Knauf Gips v Commission, C-407/08 P , EU:C:2010:389, para. 22. Regulation No 1/2003 guarantees such access to all relevant documents. However, access to the Commission’s file is not absolute since it does not extend to “confidential information and internal documents of the Commission or the competition authorities of the Member States".⁴⁴See Article 27(2) of Regulation No 1/2003. See also ECJ, Limburgse Vinyl Maatschappij and Others v Commission, C-238/99 P , C-244/99 P , C-245/99 P , C-247/99 P , C-250/99 P to C-252/99 P and C-254/99 P , EU:C:2002:582, para. 315; ECJ, Aalborg Portland and Others v Commission, cited in n. 2, para. 68; ECJ, Solvay v Commission, cited in n. 2, para. 49.