Antitrust Law Daily Wrap Up, ANTITRUST—EUGenCt: European Commission’s denial of access to requested merger documents upheld, (Oct 25, 2013)

By Jody Coultas, J.D.

The General Court of Europe dismissed an appeal of a European Commission (EC) decision, rejecting a request for access to a document that was part of the EC’s file in its investigation of the merger between Deutsche Börse and NYSE Euronext (Beninca v. European Commission, October 25, 2013).

Jürgen Beninca submitted a request to the EC for access to a memorandum from the head of the unit responsible for competition matters at the Directorate-General (DG) for Enterprise and Industry, which was drawn up in the context of the proposed merger between Deutsche Börse AG and NYSE Euronext.

The EC refused to grant access to the document, finding that the document was covered by exceptions relating to the protection of the decision-making process and the protection of commercial interests outlined in Article 4(3) and 4(2) of Regulation No. 1049/2001. Although Article 4(6) of Regulation No. 1049/2001 allows the EC to grant partial access to a requested document, the EC found that the document was covered in its entirety by the exceptions at issue. No overriding public interest justified disclosure of the document.

Beninca brought the present action by application lodged at the Registry of the General Court arguing that the EC erred in its findings.

Beninca argued that the merger control analysis procedure for the merger project had ‘ended’, with the result that disclosure of the requested document could no longer jeopardize the EC’s decision-making process. However, the fact that the procedure in question had ‘ended’ was not grounds for concluding that disclosure of the document was no longer likely seriously to undermine the EC’s decision-making process. Even after a decision has been taken, the exception relating to the protection of the decision-making process may be applied to certain documents containing opinions for internal use in deliberations and preliminary consultations within the institution concerned. Beninca did not dispute the Commission’s claim that the requested document contained opinions for internal use in deliberations and preliminary consultations. The exception in question may be invoked even though the procedure concerned had ended.

The court found that the Commission did not err in declining to grant partial access to the document. Beninca argued that the Commission did not examine the possibility of granting partial access to the requested document, misapplying Article 4(6) of Regulation No 1049/2001, and that the reasoning of this decision was insufficient. However, the Commission considered the possibility of granting partial access to the document in question and concluded that the document was covered in its entirety by the previously discussed exceptions. The contested decision provided adequate reasons to the requisite legal standard. Any document covered by the presumption falls outside the obligation to disclose, in full or in part, its content. Beninca failed to challenge that presumption, with the result that the Commission did not err in considering the requested document to be covered in its entirety by the exception relating to the protection of the decision-making process.

The public interest did not weigh in favor of disclosing the document, according to the court. Beninca argued that the Commission failed correctly to examine whether there was an overriding public interest justifying disclosure of the requested document. Only an overriding public interest can take priority over the need to protect the interests set out in the exceptions. The Commission took the view that there was no higher public interest that could take priority over the need to protect the decision-making process and none of the arguments put forward by Beninca was of such a kind as to call in question that assessment.

The case is No. Case T.561/12.

Attorneys: C. Zschocke (Morgan, Lewis & Bockius LLP) for Jürgen Beninca. J. Baquero Cruz and F. Clotuche-Duvieusart for the European Commission.

Companies: Deutsche Börse; NYSE Euronext

Cases: Antitrust