Judgment_paragraph 40 · HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Others v Commission of the European Communities (T-9/99)

40In so far as the applicants have applied for the expert accountant's report to be lodged, that report is in any event a purely internal Commission document, which is solely in the nature of an opinion for the Commission, and its purpose is not to set forth fresh objections or adduce fresh evidence against the undertakings; accordingly, it does not constitute a decisive factor which must be taken into account by the Community judicature when exercising its power of review (Order in Case 212/86 R ICI v Commission, not published in the Reports of Cases before the Court, paragraphs 5 to 8; Case T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraphs 53 and 54; and Case T-9/89 Hüls v Commission [1992] ECR II-499, paragraphs 86 and 87). It is settled case-law that during the proceedings before the Community Courts internal Commission documents are not to be communicated to the applicants, unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so (order of the Court of Justice of 18 June 1986 in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11; judgment in Case T-35/92 Deere v Commission [1994] ECR II-957, paragraph 31; and order of the Court of First Instance of 10 December 1997 in Joined Cases T-134/94, T-136/94 to T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1997] ECR II-2293, paragraph 35). That restriction on access to internal documents is justified by the need to ensure the proper functioning of the institution concerned when dealing with infringements of the Treaty competition rules (order in NMH Stahlwerke and Others v Commission, cited above, paragraph 36). Since the applicants have not shown how production of the expert accountant's report might be relevant to the principle of respect for the rights of the defence, the application must also be dismissed in so far as it relates to the lodging of that report.