On 3 August 2010, the European Ombudsman ("Ombudsman") ruled that the European Commission ("Commission") was justified in denying third party access to Commission documents relating to the offer of commitments by E.On. Although some of the grounds for denial were not made out, the overall decision to refuse access was deemed to be justified because access would likely undermine both the E.On and future Commission investigations.
The complaint arose in the context of a Commission Article 102 investigation into German energy company E.On. E.On offered commitments in June 2008 to address the Commission's preliminary concerns. Before accepting the commitments they were market tested (with a summary of the Commission's concerns and the main content of the proposed commitments published for comment).
An undisclosed third party submitted that the potential impact of E.On's commitments could not be fully understood without disclosure of a non-confidential version of the Commission's 'preliminary assessment'. This preliminary assessment document sets out the Commission's competition concerns which are communicated to the party under investigation with a view to encouraging that party to propose suitable commitments. If accepted, the commitments would become binding, enabling the Commission to close its file without making a finding of infringement.
Following the Commission's refusal to grant access, a complaint was made to the Ombudsman.
The Ombudsman noted that the rationale behind the commitments procedure is to simplify EU competition law proceedings by eliminating many of the significant administrative and legal burdens for both the Commission and the party under investigation. Commitments encourage cooperation between the two parties and can be more efficient and effective than a full competition law investigation (which often last several years).
The Ombudsman concluded that disclosing the preliminary assessment in this case before a final agreement on the proposed commitments was reached may have undermined the trust between the Commission and E.On (prejudicing the investigation), and may also have made other entities under investigation less likely to cooperate with the Commission in the future.
The Ombudsman also concluded that the material published to market test the proposed commitments constituted ample information upon which the public could consider their impact. Overall, therefore, the Ombudsman decided that the Commission had been justified in denying access to the preliminary assessment.
The E.On commitments in question were accepted by the Commission in November 2008.
The decision of the Ombudsman is in line with other recent cases, in particular the TGI state aid case where the Court of Justice ruled in favour of the Commission in refusing to give public access to Commission documents on the basis that an ongoing investigation may be prejudiced (see Community Week issue 479).
To view Community Week, Issue 483; 6th August 2010 in full, Click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
