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European Union

Public access to Commission documents

The Court of First Instance recently delivered its judgment in WWF UK v Commission (T-105/95) in which it considered the Commission's decision to refuse the World Wildlife Fund (WWF) access to documents relating to its investigation into the Irish Mullaghmore project to build a visitors' centre in the Burren National Park in Ireland.

In its judgment the Court of First Instance considered Article 1 of the Commission's Decision dated February 8 1994 on public access to Commission documents (which adopted the Code of Conduct on Public Access to Commission and Council Documents). This establishes the general principle that the public has to have "the widest possible access to documents" held by the Commission and the Council.

The Court of First Instance noted that this requirement must be construed and applied strictly, and that the withholding of documents is only justified when disclosure would run counter to the public interest or to the Commission's interest in the confidentiality of its proceedings. Consequently, when refusing a request to make documents available, the Commission must indicate, "at the very least by reference to categories of documents", the subject matter of the documents and the reasons why they are to be kept confidential. The Court of First Instance held that the Commission had failed to comply with these requirements and quashed the Commission's refusal to make the documents available.

This judgment was delivered shortly after publication of the Commission Notice on Access to the File in Cases Pursuant to Articles 85 and 86. Under the terms of this Notice, addressees of a statement of objections must have access to the Commission's file on their case and the Commission may only refuse access to 'business secrets' of other undertakings, internal Commission documents and other confidential information. The Commission is also under an obligation to return promptly any requested documents which prove to be irrelevant and to draw up a list indicating which documents are available. Similarly, the undertakings concerned must clearly specify what information is considered confidential and provide a non-confidential version of all documents.

The Notice also states that undertakings should be given the option either to examine the files on the Commission's premises or, "if the file is not too bulky", to have copies of all accessible documents sent to them.


Telecommunications Council adopts telecoms Directive

On March 6 the Telecommunications Council adopted the Directive on a Common Framework for General Authorization and Individual Licences in the Field of Telecommunications Services. The Directive must be implemented by the member states by December 31 1997, in advance of the scheduled liberalization of the telecommunications market on January 1 1998.

Under the provisions of the Directive, member states will have to ensure that telecommunications services and/or networks can be provided either without the need for authorization or under a general authorization which imposes conditions both intended to ensure compliance with requirements in the public interest and which are non-discriminatory, proportionate and transparent. Individual licences can be granted, but only if the licensee has access to scarce resources, enjoys special individual rights, or is subject to special obligations such as the obligation to provide a universal service.

The Council also reached on March 6 a common position on the proposed Directive on the application of open network provision (ONP) to voice telephony, to replace the existing Directive 95/62/EC and adopted a Decision for the introduction of satellite personal communications services (S-PCSs) in the EU.

The proposed Directive aims to ensure that current safeguards relating to quality of service, consumer protection and universal service are maintained in the context of a fully liberalized telecommunications sector while the Decision aims to facilitate the rapid introduction of compatible S-PCSs throughout the Community on the basis of harmonized rules.


Commission objects to Unilever exclusivity policy

The European Commission recently issued a statement of objections concluding that Unilever's policy of exclusivity in the Irish freezer market effectively results in some retailers selling only Unilever products and that the policy must therefore be considered in breach of EU competition law.

Unilever supplies retailers in Ireland with freezers on a 'free on loan' basis on condition that Unilever products only are stored in the freezers. The Commission first published a statement of objections referring to this practice in 1993 but cleared the arrangement after Unilever agreed to give a number of undertakings. In particular, retailers were to be given the option to hire purchase the freezers over a period of five years. During this 'repayment period', retailers were to store only Unilever products in the cabinets, but once all the payments had been made and they owned the freezers, they would no longer be tied to any exclusivity arrangement.

However, since giving the go-ahead to these arrangements, the Commission has found that Irish retailers have shown little interest in this option and, because Unilever's position is unchanged, the Commission decided on February 28 to adopt a new statement of objections.

Michael Reynolds
Allen & Overy
Brussels

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