ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
5 December 2001 (1) (Proceedings for interim measures - Decision refusing access to certain documents - Admissibility of the action in the main proceedings)
In Case T-219/01 R,
Commerzbank AG, established in Frankfurt am Main (Germany), represented by H. Satzky and B.M. Maassen, lawyers,
applicant,
v
Commission of the European Communities, represented by S. Rating, acting as Agent, with an address for service in Luxembourg,
defendant,
APPLICATION for interim measures in the form, first, of suspension of the operation of the Commission's decision of 17 August 2001 refusing the applicant access to certain documents relating to the abandonment of the procedure against other banks in Case COMP/E-1/37.919 - bank fees for currency exchange in the Euro zone stayed and, second, of suspension of the procedure for applying Article 81 EC in the same case in so far as the applicant is concerned,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal background
1.
On 23 May 2001 the Commission adopted Decision 2001/462/EC, ECSC on the terms of reference of hearing officers in certain competition proceedings (OJ 2001 L 162, p. 21), which repealed Commission Decision 94/810/ECSC, EC of 12 December 1994 (OJ 1994 L 330, p. 67).
2.
The third and sixth recitals of that decision provide first that the conduct of administrative proceedings should be entrusted to an independent person, the hearing officer, with experience in competition matters and the integrity necessary to contribute to the objectivity, transparency and efficiency of those proceedings, and secondly that in order to ensure the independence of the hearing officer, he should be attached, for administrative purposes, to the member of the Commission with special responsibility for competition. Furthermore, transparency as regards his appointment, termination of appointment and transfer should be increased.
3.
According to Article 5 of Decision 2001/462, the role of the hearing officer is to ensure that the hearing is properly conducted and to contribute to the objectivity of the hearing itself and of any decision taken subsequently with regard to the administrative proceedings in competition matters. He is to seek to ensure in particular that, in the preparation of draft Commission decisions in connection with such proceedings, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned, including the factual elements related to the gravity of any infringement.
4.
Article 8 of the Decision provides:
1. Where a person, an undertaking or an association of persons or undertakings has received one or more of the letters [from the Commission] listed in Article 7(2) [including those accompanying a statement of objections] and has reason to believe that the Commission has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of the right to be heard, access to those documents may be sought by means of a reasoned request.
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The reasoned decision on any such request shall be communicated to the person, undertaking or association that made the request and to any other person, undertaking or association concerned by the procedure.
Facts and procedure
5.
At the beginning of 1999 the Commission initiated an investigation procedure against some 150 banks, including the applicant, established in seven Member States, that is to say Belgium, Germany, Ireland, the Netherlands, Austria, Portugal and Finland, because it suspected that the banks concerned had agreed among themselves to maintain the bank fees for exchanging the currencies of the euro zone at a certain level.
6.
On 3 August 2000 the Commission sent a statement of objections to the applicant as part of that investigation.
7.
On 24 November 2000 the applicant submitted its observations in this regard.
8.
The applicant's views were heard at a hearing in connection with that investigation on 1 and 2 February 2001.
9.
It is apparent from the Commission's press releases, dated respectively 11 April, 7 and 14 May 2001, that the Commission decided to terminate the infringement procedure opened against the Netherlands, Belgian and some German banks. The Commission took that decision after those banks had lowered their fees for exchanging currencies of the euro zone.
10.
The Commission's press release of 31 July 2001 states that the Commission decided to terminate the infringement procedures which it had initiated against the Finnish, Irish, Belgian, Netherlands and Portuguese banks and some German banks.
11.
By letter dated 15 August 2001 addressed to the hearing officer of the Commission, the applicant asked to be informed of the circumstances which had led to the termination of the procedure in the parallel cases. The applicant also indicated that it considered additional access to the files essential, especially as regards the documents of the procedure relating to the German and Netherlands banks. For purposes of its defence, the applicant sought in particular to know why the procedure against the GWK bank had been closed, whereas according to the statement of objections that bank had supposedly played an important role in the alleged infringement and had not reduced its bank fees for exchanging currencies of the euro zone in Germany.
12.
By a first letter dated 17 August 2001, the hearing officer rejected that request for access to the said documents (hereinafter the contested decision). The refusal was justified as follows:
According to established case-law, consultation of the file in the course of competition proceedings before the Commission serves a specific function. It is intended to permit an undertaking accused of having infringed Community competition law to defend itself effectively against the objections made by the Commission. That condition is met only if the undertakings have access to all the documents contained in the procedure file, in other words the documents relating to the procedure with the exception of confidential documents and the administration's internal documents. It is in this way that equality of arms is established between the Commission and the defence.
In the present case, Commerzbank has been allowed access to the documents of procedure COMP/E-1/37.919 and to other documents contained in parallel files but relevant to theGerman...
