99Fourthly, the applicants argue that the documents at issue could form the basis of a possible action in non-contractual liability which they might bring before the national courts in Germany. In substance, their request is aimed at obtaining documentary evidence to support such an action for damages, using, to that end, the Commission and the powers of investigation which it enjoys as guardian of the FEU Treaty. However, any interest that the applicants might have in producing documentary evidence before a national court cannot be regarded as constituting an overriding public interest for the purposes of the last clause of Article 4(2) of Regulation No 1049/2001, for it is a private interest (see, to that effect, Commission v Agrofert Holding, paragraph 86). Indeed, it cannot be accepted that the Commission should be made the instrument by which to obtain access to evidence that is not available through other channels. It is appropriate to observe in this connection that, while the facts which gave rise to the applicants’ actions before the German and European Union courts are clearly unfortunate and regrettable, the Commission was right to emphasise that, in so far as they institute legal proceedings, the applicants must pursue legal remedies that are recognised by the national legal order and adhere to the methods for obtaining evidence that are prescribed by that legal order.
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