19The facts behind the present dispute are set out in paragraphs 15 to 28 and 34 to 37 of the judgment under appeal as follows:15 [Bavarian Lager] was established on 28 May 1992 for the importation of German beer for public houses and bars in the United Kingdom, situated primarily in the North of England.16 However, Bavarian Lager was not able to sell its product, since a large number of publicans in the United Kingdom were tied by exclusive purchasing contracts obliging them to obtain their supplies of beer from certain breweries.17 Under the Supply of Beer (Tied Estate) Order 1989 SI 1989/2390, British breweries holding rights in more than 2000 pubs are required to allow the managers of those establishments the possibility of buying a beer from another brewery, on condition, according to Article 7(2)(a) of the order, that it is conditioned in a cask and has an alcohol content exceeding 1.2% by volume. That provision is commonly known as the “Guest Beer Provision” (“the GBP”).18 However, most beers produced outside the United Kingdom cannot be regarded as “cask-conditioned beers”, within the meaning of the GBP, and thus do not fall within its scope.19 Considering that the GBP constituted a measure having equivalent effect to a quantitative restriction on imports, and was thus incompatible with Article 30 of the EC Treaty (now, after amendment, Article 28 EC), [Bavarian Lager] lodged a complaint with the Commission by letter of 3 April 1993, registered under reference P/93/4490/UK.20 Following its investigation, the Commission decided, on 12 April 1995, to institute proceedings against the United Kingdom of Great Britain and Northern Ireland under Article 169 of the EC Treaty (now Article 226 EC). It notified the applicant on 28 September 1995 of that investigation and of the fact that it had sent a letter of formal notice to the United Kingdom on 15 September 1995. On 26 June 1996, the Commission decided to send a reasoned opinion to the United Kingdom and, on 5 August 1996, issued a press release announcing that decision.21 On 11 October 1996, … [the meeting of 11 October 1996 was held] which was attended by officers of the Directorate-General (DG) for the Internal Market and Financial Services, officials of the United Kingdom Government Department of Trade and Industry and representatives of the Confederation des Brasseurs du Marche Commun (“CBMC”). [Bavarian Lager] had requested the right to attend the meeting [of 11 October 1996] in a letter dated 27 August 1996, but the Commission refused to grant permission to attend.22 On 15 March 1997 the Department of Trade and Industry in the United Kingdom announced a proposal to amend the GBP under which a bottle-conditioned beer could be sold as a guest beer, as well as cask-conditioned beer. After the Commission had, on two occasions, namely 19 March 1997 and 26 June 1997, suspended its decision to issue a reasoned opinion to the United Kingdom, the head of Unit 2 “Application of Articles 30 to 36 of the EC Treaty (notification, complaints, infringements etc.) and removal of trade barriers” of Directorate B “Free movement of goods and public procurement” of DG “Internal Market and Financial Services”, in a letter of 21 April 1997, informed [Bavarian Lager] that, in view of the proposed amendment of the GBP, the Article 169 procedure had been suspended and the reasoned opinion had not been served on the United Kingdom Government. He indicated that the procedure would be discontinued entirely as soon as the amended GBP came into force. The new version of the GBP became applicable on 22 August 1997. Consequently, the reasoned opinion was never sent to the United Kingdom and the Commission finally decided on 10 December 1997 to take no further action in the infringement procedure.23 By fax of 21 March 1997, [Bavarian Lager] asked the Director-General of DG “Internal Market and Financial Services” for a copy of the “reasoned opinion”, in accordance with the Code of Conduct [concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41)]. That request, despite being repeated, was refused.24 By [decision] of 18 September 1997 …, the Secretary-General of the Commission confirmed the refusal of the application sent to DG “Internal Market and Financial Services”.25 [Bavarian Lager] brought an action, registered as Case T-309/97, before the [General Court] against the decision of 18 September 1997. In its judgment of 14 October 1999 in Case T-309/97 Bavarian Lager v Commission [1999] ECR II-3217, the [General Court] dismissed the action, stating that the preservation of the aim in question, namely allowing a Member State to comply voluntarily with the requirements of the Treaty, or, where necessary, to give it the opportunity to justify its position, justified, for the protection of the public interest, the refusal of access to a preparatory document relating to the investigation stage of the procedure under Article 169 of the Treaty …26 On 4 May 1998, [Bavarian Lager] addressed a request to the Commission under the Code of Conduct for access to all of the submissions made under file reference P/93/4490/UK by 11 named companies and organisations and by three defined categories of person or company. The Commission refused the initial application on the ground that the [said] Code of Conduct applies only to documents of which the Commission is the author. The confirmatory application was rejected on the grounds that the Commission was not the author of the document in question and that any application had to be sent to the author.27 On 8 July 1998, [Bavarian Lager] complained to the European Ombudsman under reference 713/98/IJH, stating, by letter dated 2 February 1999, that it wished to obtain the names of the delegates of the CBMC who had attended the meeting on 11 October 1996 and the names of the companies and any persons who fell into one of the 14 categories identified in the original request for access to documents containing the communications to the Commission under file reference P/93/4490/UK.28 Following an exchange of letters between the Ombudsman and the Commission, the latter indicated to the Ombudsman in October and November 1999 that, of the 45 letters that it had written to the persons concerned requesting approval to disclose their identities to [Bavarian Lager], 20 replies had been received, of which 14 were positive and 6 were negative. The Commission supplied the names and addresses of those that had responded positively. [Bavarian Lager] stated to the Ombudsman that the information provided by the Commission was still incomplete.…34 By e-mail of 5 December 2003, [Bavarian Lager] sent a request to the Commission for access to the documents referred to in paragraph 26 above, based on Regulation No 1049/2001.35 The Commission replied to that request by letter of 27 January 2004 stating that certain documents relating to the meeting [of 11 October 1996] could be disclosed, but drawing [Bavarian Lager’s] attention to the fact that five names had been blanked out from the minutes of the meeting of 11 October 1996, following two express refusals by persons to consent to the disclosure of their identity and the Commission’s failure to contact the remaining three attendees.36 By e-mail of 9 February 2004, [Bavarian Lager] made a confirmatory application within the meaning of Article 7(2) of Regulation No 1049/2001, in which it requested the full minutes of the meeting of 11 October 1996, including all of the names.37 By [the contested decision], the Commission rejected the confirmatory application of [Bavarian Lager]. It confirmed that Regulation No 45/2001 applied to the request for disclosure of the names of the other participants. As [Bavarian Lager] had not established an express and legitimate purpose or need for such a disclosure, the conditions set out by Article 8 of that regulation had not been met and the exception provided for in Article 4(1)(b) of Regulation No 1049/2001 applied. It added that, even if the rules on the protection of personal data did not apply, it would nevertheless have had to refuse to disclose the other names under Article 4(2), third indent, of Regulation No 1049/2001 so as not to compromise its ability to conduct inquiries.’
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.