The right of access to the file in competition is a question which often faces the Court of first instance of the European Communities (CFI). If it has already held on this issue with third parties who wanted to avail themselves of items in the folder for actions before national judges (1), under the general right of access to Community documents, (2) the CFI in its judgment of 7 June 2006 (3), had to pronounce on the possibility of a final consumer to participate in the procedure noting violations of competition rules.
In this case, the notion of legitimate interest is at the heart of the debate. Indeed, it is the existence of this interest that conditions for a person the right to access the folder of procedure according to section 3.2 of Rt 17 (4).
In the case on June 7, 2006, two Austrian banks challenging decisions of the Commission and of the hearing officer to transmit to the Austrian political party of Jorg Haïder (OPS) the non-confidential versions of the statements of objections relating to the procedure for the application of article 81 EC concerning the fixing of banking rates in Austria and were such banks. They argued that the OPS had no legitimate interest in the case in question within the meaning of article 3.2 of the Rt. 17. The OPS argued that as a customer of one of the banks, he possessed this legitimate interest which derives his right to receive the non-confidential version of the statements of objections.
Conflict of interest
The problem then could ask was a conflict of interest with the OPS, both party political and client. Indeed, the banks were concerned the use of the information in this matter for political purposes.
The CFI is not stopped on this point because it considers the OPS first and foremost as a customer of a Bank and "considers that there is no objection to that final purchaser of goods or services a customer can satisfy the notion of legitimate interest, which is when the customer warrants that he has been injured or is likely to be in its economic interests on the basis of the restriction of competition in question." "Therefore, the client may file a request or a complaint Declaration by the Commission an offence under articles 81 and 82.
A legitimate interest
The ICC said that competition rules are intended to increase the well-being of the consumer and that "the recognition of legitimate interest to be seen by the Commission an offence in article 81 and 82 that contributes to the achievement of the objectives of the competition law".
This decision is important because it is the first time that the Commission, supported by the ICC, to the final customer recognizes a legitimate interest. He also brings a procedural translation to the concept of "well-being of consumers", expanding opportunities for consumers to implement public action and increasing their procedural guarantee by the recognition of a right to the transmission of a non-confidential version of the statement of objections.
The practical consequences of this judgment are important. Indeed, the final customer, otherwise said the consumer, can transmit the documents to which it has access to the national competition authorities or the civil courts, which allows action to contribute to the application of the competition law. In this, this decision reinforces the role of consumers in all phases of the proceedings, contentious or non.
Therefore, we understand why banks refused access, insofar as the consumer, by his right to look at the documents and the activities of companies, sees its considerably increased powers and can become a significant threat to these companies implicated in anti-competitive practices. These are thus to reduce their chances of escape sanctions.
The solution of the case is part of the line of work of the Commission since it occurs on a background of discussions on the Green Paper published in December 2005 (5), which identifies the obstacles to the introduction of damages actions for breach of the rules on agreements and abuses of dominant positions. The Commission closed the public consultation in April 2006. Pending the results of this consultation, it is perhaps not premature to think, with the position of the Commission supported by the ICC in the present case, that the consumer will see his situation improved, which is expected to obtain more easily the compensation for the damage suffered as a result of infringements of the competition.