CELEX: 62014TJ0128
Access to documents
Regulation (EC) No 1049/2001
Documents relating to the procedure initiated pursuant to Article 29 of Directive 2007/46/EC allowing a Member State to refuse to register vehicles that present a serious risk to road safety or seriously harm the environment or public health
Refusal of access
Exception relating to the protection of inspections, investigations and audits
General presumption
Aarhus Convention
Refusal to grant access to the file
Article 41 of the Charter of Fundamental Rights

Background to the dispute
Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (
OJ 2007 L 263, p. 1
, ‘the framework directive’), replaced the Member States’ vehicle approval systems with a harmonised approval system within the European Union, called ‘EC type‑approval’. That EC type-approval is defined in Article 3(5) of the framework directive as the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of that directive and the regulatory acts listed in certain of the annexes thereto.
Article 5(4) of Directive 2006/40/EC of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC (
OJ 2006 L 161, p. 12
, ‘the air-conditioning systems directive’) provides that, with effect from 1 January 2011, Member States are no longer to grant EC type-approval or national type-approval for a type of vehicle fitted with an air-conditioning system designed to contain fluorinated greenhouse gases with a global warming potential higher than 150. However, that directive does not prescribe a specific type of refrigerant. The implementation of that prohibition was postponed by the European Commission until 1 January 2013.
The European vehicle manufacturers agreed, in the context of an international harmonisation process which took place in 2009, to use the refrigerant bearing the reference ‘R1234yf’.
In 2013, the applicant, Daimler AG, a vehicle manufacturer established in Germany which produces, in particular, motor vehicles of the Mercedes marque, raised doubts about the safety of the use of that refrigerant.
In May 2013, the Kraftfahrt-Bundesamt (KBA, Federal Motor Transport Authority, Germany) received a request from Daimler for extension of the type‑approval of the 245G vehicle. Since the vehicle type 245G had been approved in 2008, it was not subject to the obligation to use a refrigerant compatible with the air-conditioning systems directive. The extension of the approval of vehicles of that type was notified to the Commission by letter of 22 May 2013.
On 10 June 2013, the Commission opened EU Pilot Procedure 5160/11/ENTR, the objective of which was to ascertain to what extent the Federal German Republic, when granting the applicant extensions of EC type‑approvals, had complied with the framework directive and the air-conditioning systems directive.
On 26 July 2013, the French Ministre de l’Écologie, du Développement durable et de l’Énergie (Minister for the Ecology, Sustainable Development and Energy) adopted a decision refusing to allow certain vehicles of the Mercedes marque for which extensions of the EC type‑approvals had been granted by the German authorities to be registered on French territory, on the ground that those vehicles were fitted with an air-conditioning system designed to contain fluorinated greenhouse gases with a global warming potential higher than 150, contrary to Article 5(4) of the air-conditioning systems directive.
That refusal to register the vehicles in question was based on the French provision that transposes the first sentence of Article 29(1) of the framework directive. That article, which is found in Chapter XII, entitled ‘Safeguard clauses’, provides that a Member State may, for a maximum period of 6 months, refuse to register vehicles which have been granted EC type‑approval if it considers that those vehicles seriously harm the environment or public health.
On 26 July 2013, in accordance with the second sentence of Article 29(1) of the framework directive, the French Republic informed the Commission of its refusal to register certain vehicles of the Mercedes marque. In accordance with Article 29(2) of the framework directive, the Commission consulted the parties concerned in order to prepare a decision relating to that refusal.
On 2 August 2013, an action was brought by Mercedes-Benz France, an undertaking in the Daimler group, against the decision of 26 July 2013 of the French Ministre de l’Écologie, du Développement durable et de l’Énergie refusing to register certain vehicles of the Mercedes marque on French territory.
By letter of 19 August 2013 to the Commission, the applicant took a position on the French Republic’s refusal. In that letter, the applicant stated, inter alia, the following:
‘… under Article 41(2)(b) of the Charter of Fundamental Rights, the right to have access to his or her file is also among the protected fundamental rights. We intend to make use of that right and therefore request full access to all the documents relating to the present procedure pursuant to Article 29 of [the framework directive] (including those in other documents that were used and that should be taken into account in the present case), in particular to any position adopted, in particular by the Commission’s Legal Service, as regards the application of Article 29 of [the framework directive].’
By email of 17 September 2013 to the applicant, the Commission acknowledged receipt of that letter and of the request for access to documents contained in that letter, which it regarded as being based on Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (
OJ 2001 L 145, p. 43
), and which it registered under the reference GESTDEM 2013/4643. In that email, the Commission also asked the applicant to confirm that it was requesting access to the documents referred to in paragraph 11 above.
By email of 20 September 2013, the applicant confirmed that its request for access covered all the documents relating to the procedure initiated pursuant to Article 29 of the framework directive, in particular to any position adopted by the Commission’s Legal Service on the application of Article 29 of the framework directive. It informed the Commission that if the Commission wanted a more precise request it would have to provide the applicant with a list of all the documents relating to that procedure. In addition, the applicant made clear that its request for access was based on its right to have access to the file provided for in Article 41(2)(b) of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the applicant, that article was applicable on the ground that the procedure provided for in Article 29 of the framework was of direct and individual concern to the applicant and Article 29(2) of the framework directive obliged the Commission to hear the applicant before adopting a decision.
By decision of 16 October 2013, the Commission stated that it had 14 documents referred to in the applicant’s request for access, a list of which was annexed to that decision. It explained that it was granting access to five of those documents and that it refused access to the other nine. The Commission based its refusal to grant access to six documents on the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the purposes of inspections, investigations and audits. It based its refusal to grant access to the other three documents on the exception set out in Article 4(3) of Regulation No 1049/2001, relating to the protection of the decision-making process. The Commission added that partial access to those nine documents was not possible. Last, it stated that there was no overriding public interest that would justify their disclosure.
On 30 October 2013, the applicant made a confirmatory request for access in accordance with Article 7(2) of Regulation No 1049/2001. In that request, it observed that there ought to have been more documents covered by its request for access than the 14 identified by the Commission in its decision of 16 October 2013. The applicant stated that the exceptions on which the Commission relied were irrelevant and that there was an overriding public interest in the disclosure of the requested documents owing to the importance of the case for attaining the free movement of goods. In that confirmatory request, the applicant relied not only on the right of access to documents provided for in Article 2(1) of Regulation No 1049/2001, but also on the right of access to the file, provided for in Article 41(2)(b) of the Charter.
By decision of 13 December 2013 (‘the contested decision’), the Commission confirmed its refusal to grant access to the nine documents which it had identified as not being communicable to the applicant in its decision of 16 October 2013.
In addition, the Commission observed that, after carrying out further searches, it had found that, in addition to the 14 documents identified in its decision of 16 October 2013, it had 349 additional emails. It stated that these documents consisted of:
–
55 internal emails exchanged between the staff of the ‘Automotive’ unit of the Directorate-General (DG) ‘Enterprise and Industry’;
–
170 emails internal to DG ‘Enterprise and Industry’;
–
25 emails exchanged with the Legal Service;
–
25 emails exchanged with other Directorates-General of the Commission;
–
45 emails exchanged with Member States;
–
29 emails exchanged with legal persons.
The Commission considered that the investigation carried out on the basis of Article 29 of the framework directive concerning the French Republic’s refusal to register certain vehicles of the Mercedes marque and the preliminary investigation concerning the Federal German Republic with the aim of establishing a possible failure to fulfil obligations were closely linked and considered that the requested documents all formed part of the respective administrative files of each of those investigations.
Next, the Commission examined whether the disclosure of those documents undermined the objective of the investigation initiated pursuant to Article 29 of the framework directive and also the objective of the preliminary investigation concerning the Federal German Republic.
As regards the undermining of the objective of the investigation initiated pursuant to Article 29 of the framework directive, the Commission considered, in essence, that the distribution of the requested documents would have had the effect of harming the practical effect of the safeguard clause provided for in Article 29 of the framework directive, and in particular the objective of the investigations carried out in that context, which was to determine whether the Member States had legitimately applied that clause and to ensure a high level of road safety, health protection and environmental protection.
The Commission therefore concluded that the requested documents, which were all part of the administrative file of the investigation initiated on the basis of Article 29 of the framework directive, were covered by a general presumption of non-disclosure based on the protection of the investigations provided for in the third indent of Article 4(2) of Regulation No 1049/2001.
As regards the harm to the objective of the preliminary investigation concerning the Federal German Republic, aimed at establishing a possible failure to fulfil obligations, the Commission observed, in essence, that in order for it to be able to carry out its tasks effectively, there needed to be an atmosphere of reciprocal confidence between the Commission and the Member States until such time as the case was definitively closed and that it was entitled to rely on a general presumption of non-disclosure to refuse access to the requested documents.
In addition, the Commission considered that there was no overriding public interest that would justify the disclosure of the requested documents and that the public interest would be better served if the objective of the ongoing investigations were protected.
The Commission considered, moreover, that it could not give partial access to the requested documents.
Last, as regards the applicant’s reference to the Charter and, in particular, to the right of access to the file provided for in Article 41(2), the Commission considered that it could not base its decision directly on that provision and that it must take into consideration, rather, the limits and the conditions of the exercise of that right as defined in the FEU Treaty and Regulation No 1049/2001.
Procedure
By application lodged at the Court Registry on 21 February 2014, the applicant brought the present action.
In the defence lodged at the Court Registry on 7 May 2014, the Commission requested that the proceedings be stayed.
By order of 1 July 2014, the President of the Fifth Chamber, after hearing the parties, ordered, in application of Article 77(d) of the Rules of Procedure of the General Court, that the proceedings in the present case be stayed pending the decisions of the Court of Justice determining the proceedings in Cases C‑612/13 P,
ClientEarth
v
Commission
, and C‑673/13 P,
Commission
v
Stichting Greenpeace
.
On 5 March 2015, the applicant requested that the proceedings be resumed. On 20 March 2015, the Commission lodged observations on the applicant’s request. By decision of 8 April 2015, the President of the Fifth Chamber refused that request.
By documents lodged at the Court Registry on 4 and 14 April 2014 respectively, the European Parliament and the Council of the European Union sought leave to intervene in support of the form of order sought by the Commission.
As the composition of the Chambers of the Court had been altered, the present case was reassigned to the Fifth Chamber, in its new composition, and assigned to a new Judge-Rapporteur.
The decisions pending which the proceedings in the present case had been stayed were delivered by judgments of 16 July 2015, ClientEarth v Commission (
C‑612/13 P
,
EU:C:2015:486
), and of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe (
C‑673/13 P
,
EU:C:2016:889
).
By decisions of 7 December 2016, the President of the Fifth Chamber granted the Parliament and the Council leave to intervene. They lodged their statements in intervention and the main parties lodged their observations on those statements within the prescribed periods.
In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court, by letters of 3 October 2017 and 3 and 24 January and 17 May 2018, put a number of written questions to the Commission and the applicant, which they answered within the prescribed periods.
In the context of the measures of inquiry provided for in Article 91(c) of the Rules of Procedure, the Court ordered the Commission to produce a full copy of the 29 emails exchanged between it and a number of legal persons which had identified by the Commission in the contested decision as relating to the procedure initiated pursuant to Article 29 of the framework directive. The Commission complied with that order within the prescribed period.
By letter of 8 June 2018, the applicant requested, in the light of the Commission’s answer of 28 May 2018 to a written question from the Court, that the Court adopt a new measure of organisation of procedure in order to put two questions to the Commission.
Under Article 106(3) of the Rules of Procedure, if there is no request for a hearing submitted by the main parties within 3 weeks after service of notification of the close of the written part of the procedure, the Court may decide to rule on the action without an oral part of the procedure. In the present case the Court, as it considered that it had sufficient information available to it from the material in the file, decided, in the absence of such a request, to rule without an oral part of the procedure.
Forms of order sought
The applicant claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
The Commission, supported by the Parliament and the Council, contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
Law
In support of its action, the applicant raises four pleas in law. The first plea alleges breach of the right to have access to the file provided for in Article 41(2)(b) of the Charter. The second alleges breach infringement of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done at Aarhus on 25 June 1998 (‘the Aarhus Convention’) and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of6 September 2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies (
OJ 2006 L 264, p. 13
). The third plea alleges infringement of Article 42 of the Charter, Article 15(3) TFEU, Regulation No 1049/2001 and Regulation No 1367/2006. Last, the fourth plea alleges breach of the obligation to state reasons.
The Commission disputes all of those pleas. The Council and the Parliament have submitted arguments only with respect to the applicant’s arguments, developed in the second plea, concerning the infringement of the Aarhus Convention.
First plea, alleging breach of the right to have access to the file provided for in Article 41(2)(b) of the Charter
In the context of the first plea, the applicant maintains that the Commission breached its fundamental right to have access to the file guaranteed by Article 41(2)(b) of the Charter.
In that regard, the applicant claims that, contrary to the findings of the contested decision, the right to access to the file is not defined, adapted or reduced by the provisions of primary or secondary EU law. The right of every person to have access to his or her file, provided for in Article 41(2)(b) of the Charter, is, on the contrary, independent of the right of access to the documents of the institutions provided for in Article 42 of the Charter. While the latter right is a right recognised to every citizen of the Union, the right of access to the file is a right recognised to a party to a specific procedure. The Commission ignored that fundamental difference in the contested decision. Regulation No 1049/2001 concerns only the right of access to the documents of the institutions enjoyed by all citizens of the Union and not the fundamental right of access to the file. The latter right enjoys much greater protection than the right of access to documents.
In addition, the applicant observes that Article 41(2)(b) of the Charter enshrines ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’. The applicant maintains that the documents relating to the procedure initiated by the French Republic pursuant to Article 29 of the framework directive are of direct and individual concern to it.
In addition, the applicant emphasises that although the right of access to the file is admittedly limited by the guarantee of the legitimate interests of confidentiality and of professional and business secrecy, the question whether access to the file must be granted or refused because of the protection of those legitimate interests must be assessed on a case-by-case basis. Yet the Commission excluded from access to the file,
en bloc
and without the slightest explanation, all the documents which in its view were confidential, which is contrary to the Court’s case-law.
In the reply, the applicant emphasises that its initial request and its confirmatory request were based on Article 41(2)(b) of the Charter and that, in the contested decision, the Commission examined that provision and concluded that the request for access to the file should be rejected. In the applicant’s submission, the right of access to the file based on Article 41(2)(b) of the Charter was therefore the object of the contested decision, contrary to the Commission’s contention.
In addition, the applicant claims that the case-law delivered in cartel cases on which the Commission relies and according to which the refusal of access to the file is not an act that may be challenged is not relevant. It submits that that case-law is decisively based on the fact that the right of access to the file is fully recognised as a procedural guarantee in cases of that type and that its implementation is governed in detail by a regulation. Furthermore, in answer to a question put by the Court, the applicant emphasised that it had not been established that the illegality associated with the refusal of access to the file could be invoked in support of an action brought against a final decision. The applicant also emphasised that the Commission cannot use against it the fact that it had submitted its observations during the brief period prescribed without having exercised its right of access to the file, since it had not been offered access to the file beforehand. It is clear that the applicant was authorised to supplement its observations after having had access to the file.
In addition, the applicant also emphasised that Article 41(2)(b) of the Charter placed decisive importance on the status of ‘person concerned’ by a procedure and that that person could effectively exercise his right to be heard about the matter only on condition that he had full knowledge of the file. Thus, the right to formulate observations, which confers the status of ‘person concerned’ on the person who formulates observations, generally also means the right to have access to the file. Article 29(1) of the framework directive underlines the particular procedural position of the manufacturer concerned by a refusal to register, in so far as it provides that the Member State which takes that decision is immediately to notify the other Member States, the Commission and the manufacturer concerned. Article 29(1) of the framework directive thus confers the status of party concerned by the procedure on the manufacturer, with the consequence that the Commission should consult it, in accordance with Article 29(2) of the framework directive.
Last, the applicant maintains that it is clear that its access to the file may have an impact on the procedure that concerns it. As the manufacturer concerned by the procedure initiated by the French Republic pursuant to Article 29 of the framework directive, the applicant could provide precise details of the technical aspects involved and supply information that would be relevant for the forthcoming decision.
The Commission acknowledges that the right of access to the file provided for in Article 41(2)(b) of the Charter is distinct from the right of access to documents guaranteed by Article 42 of the Charter, Article 15(2) TFEU and Regulation No 1049/2001. It maintains that the applicant cannot therefore seek annulment of a Commission decision adopted on the basis of Article 4 of Regulation No 1049/2001 on the ground that it breaches its right of access to the file. The Commission adds that it did not examine the applicant’s request for access to the file since that is not the object of a procedure initiated pursuant to Regulation No 1049/2001. In the contested decision, the Commission determined only the applicant’s right of access to documents under Regulation No 1049/2001. The considerations, contained in the contested decision, concerning Article 41(2)(b) of the Charter do not in any way indicate, contrary to the applicant’s contention, that the Commission delivered a decision on the request for access to the file. On the contrary, it expressly stated in the contested decision that it had examined the request solely on the basis of Regulation No 1049/2001. The applicant cannot therefore ignore or circumvent the conditions of that right of access, which are governed by secondary law, by invoking a right of access to the file which it claims to be available to it as a party to an administrative procedure carried out by the Commission.
In addition, the Commission observes that the right of access to the file concerned the applicant’s involvement in a procedure initiated pursuant to Article 29 of the framework directive and that, concerning that procedure, the refusal to grant access to the file was not equivalent to a definitive Commission decision adopted at the close of that procedure, with the consequence that, according to the case-law, that refusal did not yet constitute an act that might be challenged. Complaints relating to an intermediate measure — such as a decision on a request for access to the file — can be raised only incidentally, in the action against the decision closing the procedure. Nor has the applicant shown that an action against a final decision would not afford it sufficient legal protection.
In answer to the questions put by the Court, the Commission submitted that Article 29 of the framework directive did not provide that the manufacturer enjoyed a right of access to the file and that such a right on the part of the manufacturers concerned could at the most have been derived from Article 41(2)(b) of the Charter. According to the Commission, a procedural right that allows the person concerned to exercise his defence correctly is afforded only to the parties to the procedure and the manufacturers are not parties to the procedure initiated pursuant to Article 29 of the framework directive. It does not follow from the fact that the Commission hears the views of the economic operators concerned in order to investigate all the relevant facts that those operators occupy a position in the procedure that would confer individual rights on them.
The Commission adds that the right of access to the file is not granted without reservation to the parties to a procedure, since they may be refused access to the file when overriding reasons of confidentiality preclude such access. The limits of the right of access to the file referred to in Article 41(2)(b) of the Charter correspond to the exceptions provided for in Article 4(2) of Regulation No 1049/2001 in relation to the protection of investigations. Thus, in the Commission’s submission, if the right of access had formed the subject matter of the contested decision it might also have been limited in a proportionate fashion for reasons comparable with those relating to the right of access referred to in that decision.
Last, the Commission observes that, according to the case-law, in order to prove a breach of the right of access to the file the applicant must show that the refusal of access was able to influence the conduct of the procedure and the content of the Commission’s decision. However, the applicant has failed to do so. In addition, such an influence is excluded for chronological reasons, as the applicant submitted its observations, in the procedure initiated on the basis of Article 29 of the framework directive, on 19 August 2013, that is to say, before submitting its request for access to the documents by email of the same date.
It is necessary to determine, first of all, whether in the contested decision the Commission, as it maintains, ruled only on the request for access to documents based on Regulation No 1049/2001, or whether it also ruled on the request for access to the file based on Article 41(2)(b) of the Charter.
In the letter of 19 August 2013 to the Commission, in which the applicant adopted a position on the French Republic’s refusal to register certain vehicles of the Mercedes marque, the applicant based its request for access to all the documents relating to the procedure initiated by the French Republic pursuant to Article 29 of the framework directive solely on Article 41(2)(b) of the Charter.
In addition, following the Commission’s email to the applicant in which it considered that the request for access contained in the letter of 19 August 2013 was a request for access to documents based on Regulation No 1049/2001, the applicant, by email of 20 September 2013, emphasised that its request for access was based on its right of access to the file provided for in Article 41(2)(b) of the Charter.
Last, in its confirmatory request for access of 30 October 2013, the applicant invoked not only the right of access to documents provided for in Article 2(1) of Regulation No 1049/2001, but also the right of access to the file, provided for in Article 41(2)(b) of the Charter.
Thus, the initial requests for access to documents, made in the letter of 19 August 2013 and in the email of 20 September 2013, respectively, were based solely on Article 41(2)(b) of the Charter and the confirmatory request for access was based on both the right of access to documents provided for in Article 2(1) of Regulation No 1049/2001 and the right of access to the file, provided for in Article 41(2)(b) of the Charter.
Furthermore, it is true that the contested decision is entitled ‘Decision of the Secretary-General adopted pursuant to Article 4 of the provisions concerning the implementation of Regulation … No 1049/2001’ and has as its subject ‘Your confirmatory request for access to documents under Regulation … No 1049/2001 — GESTDEM 2013/4643’ and that, under the heading ‘Assessment and findings on the basis of Regulation No 1049/2001’ of the contested decision, the Commission asserted that ‘when it assesses a request for disclosure of documents under Regulation … No 1049/2001, the Commission cannot rule on any breach of a right of privileged access based on other legislative acts (such as the [framework] directive and the [air-conditioning systems] directive, in that they provide for such access to documents)’, and that ‘that complaint is therefore not the subject of the present decision’.
However, the contested decision contains not only a heading ‘Assessment and findings on the basis of Regulation No 1049/2001’, but also a heading ‘References to the [Charter]’. Under that heading, the contested decision reads as follows:
‘In your confirmatory request, you refer in addition to the [Charter] and more particularly to the right of everyone to his or her file provided for in Article 41(2) and you request that your request also be examined by reference to those provisions.
Regulation No 1049/2001 is indeed consistent with the [Charter], but it was adopted on [the basis] of Article 15(3) [TFEU], which it transposes.
Under Article 52(2) of the [Charter], the rights recognised by the Charter which have their basis in the Treaties … are to be exercised under the conditions and within the limits defined by those Treaties.
The right of access provided for in the [Charter] must therefore be exercised under the conditions and within the limits defined by Article 15(3) TFEU and by Regulation No 1049/2001.
For that reason, the Commission cannot base its decision on your request for access directly on the right of access laid down in the [Charter]. On the contrary, it must have regard to the conditions and limits defined by the [FEU Treaty] and Regulation No 1049/2001.’
It therefore follows from that passage of the contested decision that the Commission examined the request for access to the file based on Article 41(2)(b) of the Charter and that it rejected it, in essence, on the ground that the right of access to the file was also limited by the exceptions provided for in Regulation No 1049/2001.
In addition, it should be observed that, in the defence, although the Commission maintains, in its argument relating to the first plea, that it did not rule on the applicant’s request for access to the file based on Article 41(2)(b) of the Charter, in its argument relating to the fourth plea, alleging breach of the obligation to state reasons, the Commission asserts that in the contested decision it ‘did indeed rule on the right of access to the file’ and that ‘it established that it was appropriate, ultimately, to refuse the right of access to the file for the same reason as access in general to documents within the meaning of Regulation … No 1049/2001’.
In addition, the Commission’s argument that a request for access to the file is not, in principle, the object of a procedure based on Regulation No 1049/2001 and its argument that it was not required to rule on that request in the contested decision do not alter the fact that the Commission did rule on that request in the contested decision.
Accordingly, it must be considered that the contested decision contains a refusal of access to the file requested by the applicant on the basis of Article 41(2)(b) of the Charter.
It must therefore be determined whether the Commission is correct to maintain that such a refusal of access is not an act that may be challenged.
According to settled case-law, in the case of acts or decisions adopted by a procedure involving several stages, only acts which definitively establish the position of the institution concerned at the conclusion of the procedure constitute, in principle, acts that may be the subject of an action for annulment, while preliminary or purely preparatory measures cannot be the subject of an action for annulment (see order of 15 February 2012, Internationaler Hilfsfonds v Commission,
C‑208/11 P
, not published,
EU:C:2012:76
, paragraph
and the case-law cited).
It follows from the case-law established in competition matters that, even though they may constitute an infringement of the rights of the defence, Commission measures refusing access to the file produce in principle only limited effects, characteristic of a preparatory measure forming part of a preliminary administrative procedure. Only measures immediately and irreversibly affecting the legal situation of the undertakings concerned would be of such a nature as to justify, before completion of the administrative procedure, the admissibility of an action for annulment (judgment of 18 December 1992, Cimenteries CBR and Others v Commission,
T‑10/92 to T‑12/92 and T‑15/92
,
EU:T:1992:123
, paragraph
; orders of 5 December 2001, Reisebank v Commission,
T‑216/01 R
,
EU:T:2001:277
, paragraph
, and of 27 January 2009, Intel v Commission,
T‑457/08 R
, not published,
EU:T:2009:18
, paragraph
).
The fact, on which the applicant relies, that in competition matters the right of access to the file is provided for in a regulation does not justify the Court’s taking a different approach in the present case. The decisions cited in paragraph 68 above were based, in essence, on the fact that, until the adoption of the Commission decision at the close of an administrative procedure, the refusal of access to the file was, in principle, reversible and that any illegality vitiating the refusal of access might be invoked in support of an action against the decision adopted at the close of the administrative procedure.
In the present case, it follows from Article 29(1) of the framework directive that the Member States are to communicate to the Commission the refusal to register vehicles or to permit the sale or entry into service of the vehicles, components or separate technical units, and the reasons for that refusal. In addition, Article 29(2) of the framework directive provides that the Commission is to consult the parties concerned in order to prepare the decision.
That decision will specify the Commission’s legal position on the compatibility of the refusal to register notified by the Member State with, in particular, the free movement of goods within the internal market.
The applicant does not explain why it would be unable to challenge any illegality vitiating the refusal of access to the file in an action against the decision provided for in Article 29(2), of the framework directive that will be adopted by the Commission.
It should also be observed that Article 11 of Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (
OJ 2006 L 157, p. 24
), provides for a safeguard clause which allows Member States to withdraw from the market certain machinery, bearing the CE marking, that is liable to compromise the health and safety of persons. That safeguard clause is similar to the one provided for in Article 29(1) of the framework directive. In the judgment of 15 July 2015, CSF v Commission (
T‑337/13
,
EU:T:2015:502
, paragraphs
to
), this Court held that an action for annulment brought by the manufacturer of a machine against a Commission decision finding that the measures adopted by the Danish authorities, based on the safeguard clause in Article 11 of Directive 2006/42, concerning the conditions under which that machine was placed on the Danish market, were justified was admissible.
It follows that the refusal of access to the file contained in the contested decision is not capable of producing legal effects that could already affect the applicant’s interests before any final decision is adopted.
Accordingly, the first plea must be rejected.
Second plea, alleging infringement of the Aarhus Convention and of Regulation No 1367/2006
The applicant maintains that the requested documents contain environmental information and that by refusing to communicate them to it the Commission therefore failed to respect the right of access to the documents of the institutions based on the Aarhus Convention and Regulation No 1367/2006.
This plea consists of two parts. The first part alleges, in essence, that the first sentence of Article 6(1) of Regulation No 1367/2006 is incompatible with Article 4(4)(c) of the Aarhus Convention. The second part alleges infringement of the second subparagraph of Article 4(4) of the Aarhus Convention and the second sentence of Article 6(1) of Regulation No 1367/2006.
First part, alleging that the first sentence of Article 6(1) of Regulation No 1367/2006 is incompatible with Article 4(4)(c) of the Aarhus Convention
The applicant maintains that the first sentence of Article 6(1) of Regulation No 1367/2006, in that it makes provision for an exception to access to environmental information that is not provided for in Article 4(4)(c) of the Aarhus Convention, namely the exception relating to investigations, is incompatible with the latter article. In the applicant’s submission, Article 4(4)(c) of the Aarhus Convention does indeed provide that a request for access to environmental information may be refused to protect the objective of an enquiry of a criminal or disciplinary nature. However, that article does not provide for the possibility of refusing such a request to protect the objective of administrative investigations, such as investigation initiated by the Commission on the basis of the procedure laid down in Article 29 of the framework directive or an investigation preceding a possible action for failure to fulfil obligations.
Furthermore, according to the applicant, although the contracting parties to the Aarhus Convention, which include the European Union, do admittedly have a discretion when transposing the provisions of that Convention, that discretion does not allow the Commission to introduce new grounds for refusing access to environmental information that are not provided for in the Aarhus Convention. It maintains, last, that Article 4(4)(c) of the Aarhus Convention is sufficiently precise to be applied directly.
In addition, the applicant disputes the Commission’s argument that the legality of the first sentence of Article 6(1) of Regulation No 1367/2006 cannot be assessed in the light of the Aarhus Convention. It maintains that, in adopting Regulation No 1367/2006 and, in particular, Article 6(1) of that regulation, the European Union intended to transpose the obligations arising under the Aarhus Convention. Accordingly, in application of the principles identified by the Court of Justice in the judgments of 22 June 1989, Fediol v Commission (
70/87
,
EU:C:1989:254
), and of 7 May 1991, Nakajima v Council (
C‑69/89
,
EU:C:1991:186
), the legality, interpretation and application of Regulation No 1367/2006 and, in particular, of Article 6 of that regulation may be assessed by reference to the Aarhus Convention. Nor does the judgment of 16 July 2015, ClientEarth v Commission (
C‑612/13 P
,
EU:C:2015:486
) preclude a review of the first sentence of Article 6(1) of Regulation No 1367/2006 in the light of the Aarhus Convention.
The Commission contends, as a preliminary point, that as the applicant did not rely either in its first request for access to documents or in its confirmatory request on a right of access to environmental information under the Aarhus Convention, it did not approve or deny, in the contested decision, the existence of such a right, which cannot therefore form the subject matter of the present action.
The Commission also claims that the Aarhus Convention is not applicable in the present case, since the requested documents contain no information on the environment within the meaning of that convention. Furthermore, the Commission maintains that the validity of Article 6(1) of Regulation No 1367/2006 cannot be examined in the light of Article 4(4) of that convention, since the latter article does not have direct effect. In addition, it claims that Article 6(1) of Regulation No 1367/2006 is compatible with the Aarhus Convention and that, even if it were not, as Regulation No 1049/2001 was not adopted in order to transpose the Aarhus Convention, it is impossible to conclude that the exceptions to access to documents provided for in that regulation are applicable.
The Council and the Parliament claim, in essence, that it follows from the judgment of 16 July 2015, ClientEarth v Commission (
C‑612/13 P
,
EU:C:2015:486
), that the applicant cannot rely on Article 4(4)(c) of the Aarhus Convention.
It should be observed that the present part of the plea is concerned with the question whether the first sentence of Article 6(1) of Regulation No 1367/2006, in that it provides for an exception for ‘investigations, in particular those concerning possible infringements of Community law’, is compatible with Article 4(4)(c) of the Aarhus Convention.
Article 6 of Regulation No 1367/2006 adds to Regulation No 1049/2001 specific rules concerning requests for access to environmental information. The first sentence of Article 6(1) of Regulation No 1367/2006 provides that, as regards the first and third indents of Article 4(2) of Regulation No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of EU law, an overriding public interest in disclosure is to be deemed to exist where the information requested relates to emissions into the environment.
Under Article 216(2) TFEU, international agreements concluded by the European Union are binding upon the EU institutions and consequently prevail over the acts laid down by those institutions (see judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
and the case-law cited).
It follows that the validity of an act of the European Union may be affected by the incompatibility of that act with such rules of international law (see judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
and the case-law cited).
It is clear from the settled case-law of the Court of Justice, however, that the Courts of the European Union can undertake an examination of the alleged incompatibility of an act of the European Union with the provisions of an international agreement to which the Union is a party only where (i) the nature and the broad logic of that agreement do not preclude it and (ii) those provisions appear, as regards their content, to be unconditional and sufficiently precise (see judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
and the case-law cited).
In that regard, it should be observed that it follows from the judgment of 16 July 2015, ClientEarth v Commission (
C‑612/13 P
,
EU:C:2015:486
, paragraphs
to
), that Article 4(4)(c) of the Aarhus Convention is not, as regards its content, unconditional and sufficiently precise for the Courts of the European Union to be able to examine the compatibility of an act of the Union by reference to that article, in application of the case-law cited in paragraph 88 above.
It is indeed the case, as the applicant observes, that the Court of Justice has also considered that, where the Union intended to implement a particular obligation assumed under agreements concluded in the context of the World Trade Organisation (WTO) or where the act of EU law at issue refers expressly to specific provisions of those agreements, it is for the Court of Justice, where appropriate, to review the legality of the European Union measure at issue in the light of the WTO rules (see judgment of 18 December 2014, LVP,
C‑306/13
,
EU:C:2014:2465
, paragraph
and the case-law cited; see also, to that effect, judgments of 22 June 1989, Fediol v Commission,
70/87
,
EU:C:1989:254
, paragraphs
to
, and of 7 May 1991, Nakajima v Council,
C‑69/89
,
EU:C:1991:186
, paragraphs
to
).
However, the Court of Justice has made clear that those two exceptions had been justified solely by the particularities of the agreements that had led to their application (judgment of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht,
C‑401/12 P to C‑403/12 P
,
EU:C:2015:4
, paragraphs
to
).
In the present case, the first sentence of Article 6(1) of Regulation No 1367/2006 does not refer directly to specific provisions of the Aarhus Convention or confer on individuals the right to rely on the provisions of that convention. Consequently, in the absence of such an express reference to provisions of an international agreement, the judgment of 22 June 1989, Fediol v Commission (
70/87
,
EU:C:1989:254
), cannot be considered relevant in the present case (judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
).
In addition, Article 4(4)(c) of the Aarhus Convention does not lay down a particular obligation within the meaning of the judgment of 7 May 1991, Nakajima v Council (
C‑69/89
,
EU:C:1991:186
), in so far as the contracting parties to that convention have a broad discretion as to the interpretation of ‘enquiry of a criminal or disciplinary nature’ in Article 4(4)(c) of the Aarhus Convention and therefore as to the implementation of the obligation that arises under that article (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
).
It follows from the foregoing considerations that the applicant cannot rely on Article 4(4)(c) of the Aarhus Convention in order to dispute the legality of the first sentence of Article 6(1) of Regulation No 1367/2006.
The first part of the second plea must therefore be rejected.
Second part, alleging infringement of the second subparagraph of Article 4(4) of the Aarhus Convention and of the second sentence of Article 6(1) of Regulation No 1367/2006
The applicant maintains that, according to the second sentence of Article 6(1) of Regulation No 1367/2006, the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 is to be given a strict interpretation and that the fact that the requested information relates to emissions into the environment must, more particularly, be taken into account. It adds that the strict interpretation of the exception relating to investigative procedures imposed by the second subparagraph of Article 4(4) of the Aarhus Convention and the second sentence of Article 6(1) of Regulation No 1367/2006 requires that each relevant document concerning emissions be the subject of an individual examination in order to ascertain whether the public interest in its disclosure prevails over the interest of the confidentiality of the investigation.
The Commission replies that the documents referred to in the applicant’s request for access do not contain information relating to emissions into the environment within the meaning of the second sentence of Article 6(1) of Regulation No 1367/2006. It also claims that, even if that had been so, the fact would remain that the second sentence of Article 6(1) of Regulation No 1367/2006 would not be applicable.
It should be pointed out that the second subparagraph of Article 4(4) of the Aarhus Convention provides that the grounds for refusing requests for information about the environment are to be interpreted in a restrictive way.
The Courts of the European Union have considered that the obligation laid down in the second subparagraph of Article 4(4) of the Aarhus Convention to interpret the grounds of a refusal of access in a restrictive way cannot be understood as imposing a precise obligation (judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
). The applicant cannot therefore rely directly on that provision.
The second sentence of Article 6(1) of Regulation No 1367/2006 provides that, ‘as regards the other exceptions set out in Article 4 of [Regulation No 1049/2001], the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment’.
It follows from the wording and the broad logic of Article 6(1) of Regulation No 1367/2006 that the ‘other exceptions’ within the meaning of the second sentence of that paragraph do not include the protection of the objective of ‘investigations, in particular those concerning possible infringements of [EU] law’.
In fact, the first sentence of Article 6(1) of Regulation No 1367/2006 establishes a rule relating to the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001. The second sentence of Article 6(1) of Regulation No 1367/2006 mentions not simply the ‘other exceptions’ but the ‘other exceptions set out in Article 4 of Regulation [No 1049/2001]’. That provision thus refers to the exceptions in Article 4(1), (2), second indent, (3) and (5) of Regulation No 1049/2001. The investigation, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, which is referred to in the first sentence of Article 6(1) of Regulation No 1367/2006, is not covered by the concept of ‘other exceptions’ set out in the second sentence of that provision (judgment of 14 November 2013, LPN and Finland v Commission,
C‑514/11 P and C‑605/11 P
,
EU:C:2013:738
, paragraph
).
The second sentence of Article 6(1) of Regulation No 1367/2006 therefore has no impact on the examination which the Commission must carry out pursuant to Regulation No 1049/2001 when the object of a request for access is documents relating to an investigation procedure.
In any event, it should be observed that Article 6(1) of Regulation No 1367/2006, as a special rule by reference to the provisions of Article 4(2) of Regulation No 1049/2001, does admittedly contain points of clarification relating to the strict interpretation of the exceptions laid down in those provisions and to the balancing of the divergent interests, a consideration which may result in fuller access to environmental information than to other information contained in documents held by the institutions. However, that finding has no bearing on the question whether the institution concerned is or is not required to carry out a specific and individual examination of the documents or information requested (judgment of 9 September 2011, LPN v Commission,
T‑29/08
,
EU:T:2011:448
, paragraph
).
The applicant is therefore wrong to maintain that, because of the nature of the requested documents, the Commission ought to have carried out an individual examination of each document.
The second part of the second plea must therefore be rejected.
It follows that the second plea must be rejected as unfounded without there being any need to rule on the Commission’s argument that the documents to which the applicant requests access do not relate to emissions into the environment or on the argument that, as the applicant did not rely on a right of access to information on the environment on the basis of the Aarhus Convention in its request for access to documents, such a right cannot be the subject of the present action.
Third plea, alleging infringement of Article 42 of the Charter, Article 15(3) TFEU, Regulation No 1049/2001 and Regulation No 1367/2006
As a preliminary point, it should be borne in mind that, under Article 15(3) TFEU and Article 42 of the Charter, any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has a right of access to documents of the institutions, bodies and agencies of the Union, subject to the principles and conditions established in accordance with Article 15(3) TFEU. In particular, under the second subparagraph of that article, those principles and conditions are to be determined by the Parliament and the Council by means of regulations, acting in accordance with the ordinary legislative procedure.
On that basis, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the institutions of the Union, although that right, as is apparent in particular from Article 4 of that regulation, is subject to certain limits based on reasons of public or private interest (judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau,
C‑139/07 P
,
EU:C:2010:376
, paragraph
, and of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
).
In particular, it follows from the third indent of Article 4(2) of Regulation No 1049/2001, on which the Commission relied in order to refuse communication of the documents requested by the applicant, that the institutions are to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in such disclosure.
According to the case-law, the system of exceptions laid down in Article 4 of Regulation No 1049/2001, particularly in paragraph 2 thereof, is based on a balancing of the various interest involved, namely those that would be favoured by the disclosure of the document or documents requested and those that such disclosure would jeopardise (judgments of 14 November 2013, LPN and Finland v Commission,
C‑514/11 P and C‑605/11 P
,
EU:C:2013:738
, paragraph
, and of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
).
As the exceptions provided for in that article derogate from the principle of the widest possible public access to documents of the institutions of the Union, they must be interpreted and applied strictly (judgments of 17 October 2013, Council v Access Info Europe,
C‑280/11 P
,
EU:C:2013:671
, paragraph
, and of 3 July 2014, Council v in 't Veld,
C‑350/12 P
,
EU:C:2014:2039
, paragraph
).
Consequently, in order to justify the refusal of access to a document disclosure of which has been requested, it is not sufficient, in principle, that the document relates to an activity mentioned in Article 4(2) of Regulation No 1049/2001. In principle, the institution to which the request is addressed must explain how access to that document could specifically and effectively undermine the interest protected by the exception or exceptions on which it relies (judgments of 1 July 2008, Sweden and Turco v Council,
C‑39/05 P and C‑52/05 P
,
EU:C:2008:374
, paragraph
, and of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
). Furthermore, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (judgments of 1 July 2008, Sweden and Turco v Council,
C‑39/05 P and C‑52/05 P
,
EU:C:2008:374
, paragraph
, and of 17 October 2013, Council v Access Info Europe,
C‑280/11 P
,
EU:C:2013:671
, paragraph
).
However, it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau,
C‑139/07 P
,
EU:C:2010:376
, paragraph
, and of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
).
Thus, the Court of Justice has acknowledged the existence of general presumptions for refusing access to documents as regards documents in the administrative file relating to a procedure for reviewing State aid (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau,
C‑139/07 P
,
EU:C:2010:376
, paragraph
), the documents exchanged between the Commission and the notifying parties or third parties in a merger control procedure (judgments of 28 June 2012, Commission v Éditions Odile Jacob,
C‑404/10 P
,
EU:C:2012:393
, paragraph
, and of 28 June 2012, Commission vAgrofert Holding,
C‑477/10 P
,
EU:C:2012:394
, paragraph
), the pleadings lodged by one of the institutions in court proceedings (judgment of 21 September 2010, Sweden and Others v API and Commission,
C‑514/07 P, C‑528/07 P and C‑532/07 P
,
EU:C:2010:541
, paragraph
), the documents concerning an infringement procedure during the pre-litigation stage (judgment of 14 November 2013, LPN and Finland v Commission,
C‑514/11 P and C‑605/11 P
,
EU:C:2013:738
, paragraph
), the documents in a file relating to a proceeding pursuant to Article 101 TFEU (judgment of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
) and the documents relating to what is known as an ‘EU Pilot’ procedure (judgment of 11 May 2017, Sweden v Commission,
C‑562/14 P
,
EU:C:2017:356
, paragraph
).
The General Court has acknowledged the existence of general presumptions as regards the bids submitted by tenderers in a public call for tenders procedure in the case of a request for access submitted by another tenderer (judgment of 29 January 2013, Cosepuri v EFSA,
T‑339/10 and T‑532/10
,
EU:T:2013:38
, paragraph
), the documents submitted, pursuant to Article 11(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (
OJ 2003 L 1, p. 1
), by the national competition authorities to the Commission (judgment of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission,
T‑623/13
,
EU:T:2015:268
, paragraph
), the multiple-choice questions set in an open competition organised by the European Personnel Selection Office (EPSO) (judgment of 12 November 2015, Alexandrou v Commission,
T‑515/14 P and T‑516/14 P
,
EU:T:2015:844
, paragraph
), the documents relating to an investigation by the European Anti-Fraud Office (OLAF) (judgment of 26 May 2016, International Management Group v Commission,
T‑110/15
,
EU:T:2016:322
, paragraph
) and the documents relating to a procedure for abuse of a dominant position in which no further action was taken (judgment of 28 March 2017, Deutsche Telekom v Commission,
T‑210/15
,
EU:T:2017:224
).
It should also be borne in mind that, when a request for access covers not just one document but a set of documents, the recognition that there is a general presumption that the disclosure of documents of a certain nature would, in principle, undermine the protection of one of the interests listed in Article 4 of Regulation No 1049/2001 enables the institution concerned to deal with a global request and to reply thereto accordingly (see judgment of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
and the case-law cited).
Last, it should be borne in mind that, according to the case-law of the Court of Justice, the Commission’s administrative activity does not require the same breadth of access to documents as that required by the legislative activity of an institution of the Union (judgment of 21 July 2011, Sweden v MyTravel and Commission,
C‑506/08 P
,
EU:C:2011:496
, paragraph
; see also, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau,
C‑139/07 P
,
EU:C:2010:376
, paragraph
, and of 21 September 2010, Sweden and Others v API and Commission,
C‑514/07 P, C‑528/07 P and C‑532/07 P
,
EU:C:2010:541
, paragraph
).
The present plea may be divided, in essence, into two parts. The first part alleges that the Commission could not rely on the exception relating to the protection of investigations provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and on a general presumption of non-disclosure. The second part alleges that the Commission was wrong to consider that there was no overriding public interest that justified the disclosure of the requested documents.
As regards the first part, alleging that the Commission could not rely on the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and a general presumption of non-disclosure, in the first place, the applicant maintains that the disclosure of the requested documents does not undermine any ‘investigation’, since the dispute relates solely to the legal value to be ascribed to events which have actually been established and completed, that is to say, the question whether the French Ministre de l’Écologie, du Développement durable et de l’Énergie was entitled to suspend the registration of the motor vehicles concerned because of an alleged danger to the environment.
In the second place, the applicant maintains that the Commission could not rely on a general presumption of non-disclosure to refuse its request to access the documents relating to the procedure initiated pursuant to Article 29 of the framework directive.
In that regard, it claims that to refuse the requested documents on the ground, in particular, that the success of the investigation depends on an exchange of information taking place in an atmosphere of discretion and mutual trust and that disclosure of those documents would subject the procedure to the influence of third parties amounts to creating a situation in which the exception would apply throughout the investigation, which does not exist in Regulation No 1049/2001.
The applicant adds that it does not understand why, according to the Commission, the objective of the investigation initiated pursuant to Article 29 of the framework directive would be rendered devoid of substance if the requested documents were disclosed. The fact that the manufacturer concerned may have access to the documents relating to the procedure initiated pursuant to that article would, on the contrary, in the applicant’s submission, contribute to the objective of that procedure, which is intended to implement the common policy of movement in the field of road safety. The same would apply if the public had access to those documents, since, according to the French Republic, which refused to register the applicant’s vehicles, the interests of the public in safety and ecology matters were affected.
In addition, the applicant maintains that the case-law on infringement proceedings cannot be transposed to the procedure initiated pursuant to Article 29 of the framework directive. In that regard, it claims that the questions that arise in the context of the latter procedure are separate from those that arise in the context of an infringement procedure. It also maintains that the opening of the procedure initiated pursuant to Article 29 of the framework directive does not presume the existence of a possible infringement procedure and that it is therefore not a ‘pre-litigation procedure’ in an infringement procedure. It adds that the procedure initiated pursuant to Article 29 of the framework directive is quite distinct from an infringement procedure, since it involves different persons, pursues different objectives and follows its own rules. In particular, the parties to that procedure are not just the Commission and the Member State which is alleged to have infringed EU law, but also the Member State that adopted the protective measure and the vehicle manufacturer, which in the present case is the applicant. Thus, in the applicant’s submission, the mere possibility that the procedure initiated pursuant to Article 29 of the framework directive will be followed by an infringement procedure is not sufficient reason to refuse access to the requested documents. The Commission even refused access to those documents even before it knew whether the conditions laid down in Article 29(1) of the framework directive were satisfied.
Last, the applicant maintains that the conditions that allow a general presumption of non-disclosure to be applied are not satisfied as regards the documents relating to a procedure initiated pursuant to Article 29 of the framework directive. The applicant acknowledges that its request for access covered a set of documents, but observes, however, that it covered documents of extremely diverse types. In addition, the conditions for recognising a general presumption of non-disclosure are not satisfied in the present case, since the framework directive contains no procedural rule relating to access to documents.
In the third place, the applicant maintains that the Commission could not rely on a general presumption of non-disclosure of the documents relating to an EU Pilot procedure. When questioned about the consequences of the judgment of 11 May 2017, Sweden v Commission (
C‑562/14 P
,
EU:C:2017:356
), for the present plea, the applicant took note of the fact that the Court of Justice had confirmed that a presumption of non-disclosure could be relied on with regard to the documents relating to an EU Pilot procedure. It observed, however, that its request for access did not cover documents relating to an EU Pilot procedure, but documents relating to a separate administrative procedure, namely a procedure initiated pursuant to Article 29 of the framework directive, for which there is no presumption of confidentiality. The applicant also emphasised that the documents covered by those two procedures might be identical in part, but that it did not consider that all the documents in the procedure initiated pursuant to Article 29 of the framework directive would also be found in the file relating to EU Pilot 5160/11 procedure. That, in the applicant’s submission, is an indispensable condition that must be satisfied in order for those documents to come under the presumption of confidentiality recognised for documents relating to an EU Pilot procedure.
The Commission replies, in the first place, that it was entitled to rely on a general presumption of non-disclosure as regards the documents relating to a procedure initiated pursuant to Article 29 of the framework directive. It contends, in that regard, that there is a direct functional link between that procedure and the parallel EU Pilot 5160/11 procedure, which precedes an infringement procedure against the Federal German Republic. One of the measures that might be taken by the Commission on the basis of Article 29(4) of the framework directive is the initiation of an infringement procedure. In addition, the Commission maintains that, irrespective of that functional link, a general presumption of non-disclosure may be accepted in a procedure initiated pursuant to Article 29 of the framework directive. Since the procedure provided for in that article does not provide, for the parties, for a right of participation other than the requisite consultation, and in particular not a right of access to the file, such a presumption should be accepted. Furthermore, according to the Commission, disclosure of the requested documents would undermine the objective of that investigation. It refers in that regard to the considerations put forward in the contested decision.
The Commission replies, in the second place, relying on the judgment of 25 September 2014, Spirlea v Commission (
T‑306/12
,
EU:T:2014:816
, paragraphs
,
and
), which was upheld by the judgment of 11 May 2017, Sweden v Commission (
C‑562/14 P
,
EU:C:2017:356
), that it was entitled to rely on a general presumption of non-disclosure with respect to the documents relating to an EU Pilot procedure. It also claims that a set of documents may be covered by a presumption when those documents relate to a single procedure, as in the present case. Last, the Commission observes that an EU Pilot procedure had already been opened on the date of the contested decision and that, contrary to the applicant’s contention, there is a presumption of confidentiality even if, on the date of the contested decision, an infringement procedure had not yet been opened. When questioned by the Court, the Commission emphasised that all the documents relating to the procedure initiated pursuant to Article 29 of the framework directive were elements of the EU Pilot 5160/11 investigation and that the fact that those documents had not all been ‘physically placed’ on the EU Pilot procedure file did not contradict such an assertion.
In so far as the applicant maintains that disclosure of the requested documents would not undermine any ‘investigation’, since the dispute relates solely to the legal value to be ascribed to events which have effectively been established and completed, it is appropriate to examine, first of all, whether the procedure initiated pursuant to Article 29 of the framework directive may be regarded as an activity for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001.
In that regard, it must be noted that the concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs (judgment of 7 September 2017, France v Schlyter,
C‑331/15 P
,
EU:C:2017:639
, paragraph
).
The Court of Justice has held that, without there being any need to identify an exhaustive definition of ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, a structured and formalised Commission procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties must be considered to be an investigation (judgment of 7 September 2017, France v Schlyter,
C‑331/15 P
,
EU:C:2017:639
, paragraph
).
The Court of Justice has made clear that those procedures do not necessarily have to have the purpose of detecting or pursuing an offence or irregularity. The concept of ‘investigation’ could also cover a Commission activity intended to establish facts in order to assess a given situation (judgment of 7 September 2017, France v Schlyter,
C‑331/15 P
,
EU:C:2017:639
, paragraph
).
In the present case, first of all, it should be observed that Article 29 of the framework directive establishes, in paragraphs 1 to 4, a procedural sequence relating, first, to the notification, by the Member State, of a decision refusing to register new vehicles, systems, components or separate technical units that present a serious risk to road safety or seriously harm the environment or public health, or to permit the sale or entry into service in its territory of such vehicles; second, to consultation by the Commission of the parties concerned; and, third, to the adoption of a decision and the possible taking of appropriate measures by the Commission. It must therefore be considered that the procedure provided for in Article 29 of the framework directive is a structured and formalised procedure.
Next, it follows from Article 29(1) of the framework directive that Member States are to communicate to the Commission not only the decision refusing to register vehicles or to permit the sale or entry into service in their territory of the vehicles, components or separate technical units, but also the reasons for that refusal and, in particular, whether that refusal is the result of shortcomings in the relevant regulatory acts or incorrect application of the relevant requirements. In addition, Article 29(2) of the framework directive provides that the Commission is to consult the parties concerned in order to prepare a decision. The preparation of that decision involves, clearly, the existence of a prior analysis of the information in the Commission’s possession. It must therefore be considered that the objective of the procedure laid down in Article 29 of the framework directive is the gathering and analysis of information.
Last, according to Article 29(2) of the framework directive, the Commission is to take a decision which sets out its legal position with respect to the compatibility of the refusal of registration or permission notified by the Member State with, in particular, the free movement of goods within the internal market. It must therefore be considered that the purpose of the procedure laid down in Article 29 of the framework directive is to enable the Commission to adopt a position in the context of the exercise of its duties laid under the EU Treaty and the FEU Treaty.
Having regard to all of the foregoing, it must be considered that the procedure laid down in Article 29 of the framework directive is an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
It must therefore be determined whether the Commission properly relied on a general presumption of non-disclosure in order to refuse access to the documents relating to the procedure initiated pursuant to Article 29 of the framework directive.
It follows from the case-law cited in paragraphs 115 and 116 above that, in order for a general presumption to be validly used against the person requesting access to documents on the basis of Regulation No 1049/2001, the requested documents must form part of the same set of documents or be of the same nature (see, to that effect, judgment of 27 February 2014, Commission v EnBW,
C‑365/12 P
,
EU:C:2014:112
, paragraph
and the case-law cited).
It also follows from that case-law, moreover, that the application of general presumptions is essentially dictated by the requirement to ensure the correct functioning of the procedures in question and to ensure that their objectives are not compromised. Thus, the recognition of a general presumption may be based on the incompatibility of access to the documents in certain procedures with the proper conduct of those procedures and on the risk that the procedures may be undermined, it being understood that the general presumptions enable the integrity of the conduct of the procedure to be preserved by restricting interference by third parties (see, to that effect, judgment of 25 September 2014, Spirlea v Commission,
T‑306/12
,
EU:T:2014:816
, paragraphs
and
, and Opinion of Advocate General Wathelet in Joined Cases LPN and Finland v Commission,
C‑514/11 P and C‑605/11 P
,
EU:C:2013:528
, points
,
,
and
).
The application of specific rules provided for by a legal act measure to a procedure conducted before an EU institution for the purposes of which the requested documents were produced is one of the criteria capable of justifying recognition of a general presumption (see, to that effect, judgment of 11 June 2015, McCullough v Cedefop,
T‑496/13
, not published,
EU:T:2015:374
, paragraph
and the case-law cited, and Opinion of Advocate General Cruz Villalón in Council v Access Info Europe,
C‑280/11 P
,
EU:C:2013:325
, point
).
In the first place, it must be determined whether the requested documents form part of the same category or are of the same nature. In that regard, it is sufficient to observe that it is common ground that those documents are all part of the same administrative file, namely the file in the ongoing procedure initiated pursuant to Article 29 of the framework directive, and that they therefore form part of the same category (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraphs
and
).
In the second place, it must be determined whether the reasons stated by the Commission in the contested decision for refusing access to the documents relating to the procedure initiated pursuant to Article 29 of the framework directive were of such a kind as to justify recognition of a new general presumption of non-disclosure.
In that regard, it should be borne in mind that, in the contested decision, the Commission emphasised, relying on the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (
C‑139/07 P
,
EU:C:2010:376
), that neither Regulation No 1049/2001 nor the framework directive contained provisions expressly establishing the primacy of one of those measures over the other and that, accordingly, it was necessary to ensure an application of each of those measures that was compatible with the other, thus permitting a consistent application of those measures.
The Commission also observed that the initiation and the conduct of investigations which follow a notification on the basis of Article 29 of the framework directive were part of its administration functions and that the application of Regulation No 1049/2001 must not have the consequence that that article would be deprived of its practical effect.
The Commission further stated, first, that six documents, which were part of the file in the investigation initiated pursuant to Article 29 of the framework directive, consisted in the Member States’ replies to the consultations which it had launched in the context of that investigation. It observed that that file also contained 45 emails exchanged with Member States. The Commission considered that, in order for its investigation to succeed, it was essential that it should proceed in an atmosphere of discretion and confidence that favoured a free exchange of information and views between it and the Member States. It added that, in the absence of that confidentiality, the Member States would hesitate to express their point of view freely concerning respect for or lack of respect for the provisions of the framework directive.
The Commission stated, second, that the file in the investigation initiated pursuant to Article 29 of the framework directive contained numerous documents consisting of internal exchanges of views, in particular between different Directorates-General and with the Commission’s Legal Service, drawn up in the context of the preliminary deliberations on the ongoing investigation concerning the application of the framework directive by the French Republic and the Federal German Republic. It also observed that certain documents consisted of emails exchanged with private undertakings. The Commission emphasised that any premature distribution of those preliminary exchanges would expose the investigation procedure to undue interference by third parties, based on findings or uncorroborated opinion, that would compromise the speed and effectiveness of the investigation. The distribution of those documents would undermine the Member States’ confidence in the objectivity, impartiality and confidentiality of the investigation procedure and would therefore reduce the Member States’ desire, once the investigation had closed, to contribute constructively to the effective monitoring of the findings of the investigation.
The distribution of the requested documents would therefore, according to the Commission, have had the effect of undermining the practical effect of the safeguard clause provided for in Article 29 of the framework directive, and in particular the objective of the investigations carried out in that context, which is to determine whether the Member State concerned lawfully applied that clause and to ensure a high level of road safety, health and protection of the environment.
The Commission therefore concluded that the requested documents, which all formed part of the administrative file in the investigation initiated on the basis of Article 29 of the framework directive, were covered by a general presumption of non-disclosure based on the protection of investigations provided for in the third indent of Article 4(2) of Regulation No 1049/2001.
As regards the reason put forward by the Commission in the contested decision for applying a general presumption of non-disclosure to the requested documents, based on the need to ensure a consistent application of Regulation No 1049/2001 and of the framework directive, it should be observed that the Commission did not state in the contested decision what inconsistency between those two measures the application of a general presumption of non-disclosure was designed to avoid.
It should also be borne in mind that, in the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (
C‑139/07 P
,
EU:C:2010:376
), on which the Commission relied in the present case, the Court of Justice had acknowledged the existence of a general presumption of non-disclosure of documents relating to a procedure for reviewing State aid. After observing that Article 6(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (
OJ 1999 L 83, p. 1
) provided that the comments received by the Commission in the context of such a review procedure were to be submitted to the Member State concerned, the latter then having the opportunity to reply to those comments within a given time limit, the Court of Justice stated that it followed from Regulation No 659/1999 that the interested parties, except for the Member State responsible for granting the aid, did not have a right under the procedure for reviewing State to consult the documents in the Commission’s administrative file and, therefore, that if those interested parties were to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau,
C‑139/07 P
,
EU:C:2010:376
, paragraphs
and
).
However, unlike Regulation No 659/1999, the framework directive does not contain any provision that would permit the Member State (or Member States) concerned by the procedure provided for in Article 29 of the framework directive to have access to the administrative file in that procedure, from which it might follow, conversely, that the other parties concerned by that procedure would not have such a right. In addition, Article 29(2) of the framework directive, which concerns consultation of the parties concerned by the procedure provided for in that article and not access to the documents in that procedure, cannot be interpreted as a provision restrictively governing the use of the documents in the Commission’s file, contrary to the Commission’s apparent contention.
The framework directive therefore contains no rule specifically governing the detailed rules on access to the Commission’s administrative file in the context of the procedure provided for in Article 29 of the framework directive.
Accordingly, the reasons put forward by the Commission in the contested decision for applying a general presumption of non-disclosure to the requested documents, based on the need to ensure a consistent application of Regulation No 1049/2001 and the framework directive and also of the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (
C‑139/07 P
,
EU:C:2010:376
), lack conviction in the present case.
Admittedly, the fact that there is no legislative measure specifically governing the detailed rules on access to the requested documents is not in itself capable of justifying the exclusion of any possibility of acknowledging the existence of a general presumption on the basis of which access to the documents may be refused (see, to that effect, judgment of 26 May 2016, International Management Group v Commission,
T‑110/15
,
EU:T:2016:322
, paragraph
).
However, in so far as the possibility of relying on general presumptions has the effect not only of restricting the fundamental principle of transparency laid down in Article 11 TEU, Article 15 TFEU and Regulation No 1049/2001, but also, and of necessity, of limiting in practice access to the documents at issue, the use of such presumptions must be founded on solid and convincing reasons (see, to that effect, Opinion of Advocate General Wathelet in Joined Cases LPN and Finland v Commission,
C‑514/11 P and C‑605/11 P
,
EU:C:2013:528
, point
).
Thus, in order to be able to rely as against the applicant on a general presumption of non-disclosure of the requested documents, the Commission ought to have explained how that presumption was necessary in order to ensure the proper functioning of the procedure at issue in the present case, namely the procedure initiated pursuant to Article 29 of the framework directive, and to ensure that the objectives of that procedure were not undermined.
In addition to the reasons based on the need to ensure a consistent application of Regulation No 1049/2001 and the framework directive and also on the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (
C‑139/07 P
,
EU:C:2010:376
), which lack conviction in the present case, the Commission, in order to apply a general presumption of non-disclosure to the requested documents, relied, in essence, on the need to ensure an atmosphere of discretion and confidence with the Member States and to avoid interference by third parties in the ongoing investigation.
Clearly, those reasons are valid for any ongoing investigation procedure initiated in regard to a Member State.
To accept that a general presumption of non-disclosure might be applied for such reasons would run counter to the settled principle that presumptions must be interpreted and applied strictly, since they constitute an exception to the rule that the institution concerned is obliged to make a specific and individual examination of every document which is the subject of request for access and also, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
).
Furthermore, it should be added that, as regards the 29 emails which the Commission exchanged with legal persons in the context of the procedure initiated pursuant to Article 29 of the framework directive, the reasons stated by the Commission for applying the presumption that the disclosure of those emails would undermine the objective of the investigation initiated pursuant to Article 29 of the framework directive are clearly irrelevant. In fact, it is difficult to understand, on reading the contested decision, how the disclosure of those exchanges might undermine the Member States’ confidence in the objectivity and impartiality of the investigation carried out by the Commission or expose that investigation to undue interference by third parties.
In the context of the measures of inquiry provided for in Article 91(c) of the Rules of Procedure, the Commission was ordered to produce a complete copy of those 29 emails.
In those emails, in essence, the legal persons in question express their views on the refrigerant R1234yf, used in the air-conditioning systems of the applicant’s vehicles. It is not apparent from those 28 emails (one of the 29 emails being in fact an email internal to the Commission, as the Commission itself observed in the letter accompanying the copy of those documents) that the disclosure of the views of certain legal persons on the refrigerant R1234yf would undermine the Member States’ confidence in the objectivity, impartiality and confidentiality of the investigation procedure and expose the investigation to undue interference by third parties. In addition, although, admittedly, a document attached to one of those emails contains a report of the KBA on the refrigerant R1234yf and although numerous emails mention the content of that report, the report is disclosed by third parties and is available on the KBA’s website. The disclosure of those emails cannot therefore be considered to undermine the confidence of a national authority.
The reasons which the Commission gave for applying a general presumption of non-disclosure to the documents relating to the procedure initiated pursuant to Article 29 of the framework directive are therefore irrelevant as regards the exchanges between the Commission and legal persons and are not solid or convincing as regards the other categories of documents which the Commission identified.
The Commission was therefore not entitled, in the light of the reasons which it put forward in the contested decision, to apply a general presumption of non-disclosure to the requested documents.
That conclusion is not altered by the Commission’s argument that there is a close functional link between EU Pilot procedure 5160/11 and the procedure initiated pursuant to Article 29 of the framework directive.
In that regard, first of all, it should be observed that the Commission acknowledged, in its answers to the written questions put by the Court, that the requested documents had not been placed on the EU Pilot 5160/11 file. The Court of Justice has considered that the fact that documents had been placed on the file in an administrative procedure was decisive for the purpose of concluding that those documents were connected with that procedure (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission,
C‑612/13 P
,
EU:C:2015:486
, paragraph
). The applicant is therefore correct to maintain that the Commission cannot rely on the general presumption of non-disclosure of the documents relating to EU Pilot procedures, recognised by the General Court in the judgment of 25 September 2014, Spirlea v Commission (
T‑306/12
,
EU:T:2014:816
, paragraphs
,
and
), which was upheld by the judgment of 11 May 2017, Sweden v Commission (
C‑562/14 P
,
EU:C:2017:356
).
Next, it is true that in the present case the French Republic justified its refusal to register the vehicles in question by the fact that the extensions of EC vehicle type‑approvals granted by the German authorities did not comply with the air-conditioning systems directive. However, a refusal to register may be justified on grounds other than non-compliance with the applicable legislation by the national authorities with competence for vehicle approval matters. Thus, it follows from the first indent of the second sentence of Article 29(1) of the framework directive that that refusal may be justified by shortcomings in the relevant regulatory acts. In such a situation, there is no link between the procedure initiated pursuant to Article 29 of the framework directive and an EU Pilot procedure.
In addition, the procedure initiated, in the present case, pursuant to Article 29(1) of the framework directive is not the stage prior to the infringement procedure initiated against the Federal German Republic, as that prior stage is the EU Pilot 5160/11 procedure.
Last, it should be observed that, in order to justify a common approach with regard to the EU Pilot procedures and the infringement procedure under Article 258 TFEU, the General Court has emphasised, in particular, in the judgment of 25 September 2014, Spirlea v Commission (
T‑306/12
,
EU:T:2014:816
, paragraph
), the EU Pilot procedure, like the pre-litigation stage of the infringement procedure, is bilateral in nature, between the Commission and the Member State concerned, in spite of the fact that, as in the present case, it may have been initiated by a complaint, since in any event a complainant has no rights at a later stage of the infringement procedure. Unlike an EU Pilot procedure or an infringement procedure, the procedure initiated pursuant to Article 29 of the framework directive is not a bilateral procedure between the Commission and the Member State concerned. Article 29(2) of the framework directive provides that the Commission is to consult the parties concerned as soon as possible in order to prepare the decision. It follows from that provision that the manufacturer, as a party concerned, is entitled to be consulted and therefore that it is involved in the context of that procedure, unlike a complainant in the context of infringement procedures.
In addition, it should be borne in mind that in the present case the Commission consulted both other Member States and legal persons in order to obtain information which it appears to have considered useful or necessary for the purposes of its investigation. Those consultations mark a very clear distinction between the procedure carried out by the Commission in the present case and an infringement procedure and an EU Pilot procedure. In any event, it is not possible, having regard to the number and diversity of the persons consulted by the Commission, to presume that all the information which it received in the context of those consultations is covered by the exception relating to the protection of inspections, investigations or audits.
The case-law relating to the EU Pilot procedures and infringement procedures cannot therefore be applied by analogy.
It follows from all of the foregoing that the first part of the third plea and, accordingly, the contested decision must be annulled, without there being any need to examine the second part of the third plea or the fourth plea, or to adjudicate on the application for a measure of organisation of procedure submitted by the applicant in its letter of 8 June 2018.
Costs
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay the applicant’s costs, in accordance with the form of order sought by the latter.
Under Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Council and the Parliament will therefore bear their own costs.

On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:

1.
Annuls Decision Ares(2013) 3715941 of the European Commission of 13 December 2013 refusing to grant Daimler AG access to the documents relating to the procedure initiated by the French Republic pursuant to Article 29 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive);

2.
Orders the Commission, in addition to bearing its own costs, to pay those incurred by Daimler;

3.
Orders the Council of the European Union and the European Parliament to bear their own costs.

Gratsias
Dittrich
Xuereb
Delivered in open court in Luxembourg on 4 October 2018.
[Signatures]
(
*1
)	Language of the case: German.