CELEX: 62017CJ0666
Appeal
Access to documents
Regulation (EC) No 1049/2001
Third indent of Article 4(2)
General presumption of confidentiality of documents relating to an investigation procedure in the field of State aid
Scope

By its appeal, AlzChem AG seeks to have set aside the judgment of the General Court of the European Union of 7 September 2017,
AlzChem
v
Commission
(T‑451/15, not published, ‘the judgment under appeal’, EU:T:2017:588), by which that court dismissed its action seeking annulment of the decision of 26 May 2015 in which the European Commission refused to grant it access to documents relating to an investigation procedure in the field of State aid (‘the decision at issue’).

Legal context
Article 15(3) TFEU confers on any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, a right of access to documents of the European Union’s institutions, bodies, offices and agencies, subject to the principles and the conditions defined by the European Parliament and the Council of the European Union for reasons of public or private interest.
Recital 2 of 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) states, inter alia, that ‘openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system’.
Recital 6 of that regulation states that ‘wider access should be granted to documents in cases where the institutions are acting in their legislative capacity’.
Article 4(2) of that regulation provides as follows:
‘The institutions shall refuse access to a document where disclosure would undermine the protection of:
–        commercial interests of a natural or legal person, including intellectual property,
–         court proceedings and legal advice,
–        the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.’
Article 4(3) and (4) of that regulation provides:
‘3.      Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
...
4.      As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.’
Article 7(2) of Regulation No 1049/2001 provides as follows:
‘In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.’
Article 10 of that regulation, entitled ‘Access following an application’ provides in paragraph 1 thereof that the applicant is to have access to documents ‘either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant’s preference’.

Background to the dispute and the contested decision
The facts of the dispute may be summarised as follows.
By its Decision (EU) 2015/1826 of 15 October 2014 on the State aid SA.33797 — (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71), the Commission considered that that undertaking, which operates in the chemical sector, had received State aid that was unlawful and incompatible with the internal market, in the course of its bankruptcy proceedings.
AlzChem, a German company also active in the chemical sector, intervened as an interested party in the procedure that led to the adoption of that decision.
On 16 March 2015, AlzChem made an application to the Commission for access to three documents from the administrative file relating to that procedure, namely the economic analysis of the administrator of NCHZ of 23 December 2010, a document of that undertaking entitled ‘NCHZ management presentation’ and the submissions made by the Slovak Government relating to the interpretation and application of the Slovak Law on bankruptcy (‘the documents at issue’).
On 27 March 2015, the Commission rejected that application on the ground that it was covered by the exceptions provided for in the third indent of Article 4(2) of Regulation No 1049/2001 concerning protection of the institutions’ investigation activities and Article 4(3) of that regulation concerning protection of the decision-making process of the institutions.
By letter of 16 April 2015, the appellant sent the Commission a confirmatory application, in accordance with Article 7(2) of that regulation.
By the decision at issue, the Commission confirmed its refusal to grant that application and stated that its refusal was also based on the need to protect commercial information and sensitive data relating to NCHZ’s activities, by virtue of the first indent of Article 4(2) of that regulation.

The proceedings before the General Court and the judgment under appeal
By an appeal lodged on 5 August 2015, AlzChem claimed that the General Court should annul the decision at issue.
By the judgment under appeal, the General Court rejected as unfounded the first of the three pleas in law raised by the appellant, alleging an error of law and a manifest error of assessment concerning the application of the general presumption of confidentiality of documents relating to an investigation procedure under the third indent of Article 4(2) of Regulation No 1049/2001 (‘the general presumption of confidentiality’).
Given the rejection of the first plea in law in its entirety, the General Court considered that it was not necessary to examine the second plea in law raised by AlzChem, which alleged an error of law and a manifest error of assessment relating to the application of the exception concerning the protection of commercial interests provided for in the first indent of Article 4(2) of Regulation No 1049/2001.
Finally, the General Court also rejected as unfounded the third plea in law, alleging infringement of the obligation to state reasons for the refusal to grant access to documents in a non-confidential version or on the Commission’s premises.
The General Court therefore dismissed the action in its entirety and ordered AlzChem to pay the costs.

Proceedings before the Court of Justice and forms of order sought
By its appeal, AlzChem requests the Court of Justice to set aside the judgment under appeal and the decision at issue and to order the Commission to pay the costs.
The Commission contends that the Court should dismiss the appeal and order AlzChem to pay the costs of the proceedings.

The appeal

The first ground of appeal, alleging an error of law and a manifest error of assessment relating to the application of the general presumption of confidentiality

The error of law that the General Court is alleged to have made in interpreting the general presumption of confidentiality
–
Arguments of the parties
AlzChem maintains, in the first place, that the general presumption of confidentiality of documents relating to a procedure for reviewing State aid cannot concern specifically identified documents.
The appellant submits that it is not sufficient for a document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001 for the refusal to communicate it to be justified and that the Commission is obliged to explain why that access could specifically and actually  harm the interest protected.
In support of that argument, the appellant claims that it is only when the application for access concerns ‘categories’ or ‘sets’ of documents described ‘as a whole’, such as the case file, that the Commission may rely on the general presumption of confidentiality, as is apparent from paragraph 4 of the judgment of 29 June 2010,
Commission
v
Technische Glaswerke Ilmenau
(C‑139/07 P, EU:C:2010:376) and paragraph 49 of the judgment of 14 November 2013,
LPN and Finland
v
Commission
(C‑514/11 P and C‑605/11 P, EU:C:2013:738).
The appellant maintains that the judgment of 14 July 2016,
Sea Handling
v
Commission
(C‑271/15 P, not published, EU:C:2016:557), in which the Court of Justice applied that presumption to specifically identified documents can only be a
sui generis
decision, if Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’) is not to be infringed. In addition, it submits that a distinction should be made in accordance with the nature of the documents.
In the second place, AlzChem claims that the General Court erred in law, in paragraph 58 of the judgment under appeal, in rejecting its argument concerning the ‘pre-existing’ nature of two of the three documents at issue, that is to say documents that were drawn up before the investigation was opened, not necessarily by the institution concerned or for the purposes of that investigation. AlzChem submits that its analysis is confirmed by the treatment afforded to the disclosure of such documents in other areas of EU law. It refers, inter alia, in that regard, to the Opinion of Advocate General Mazák in
Pfleiderer
(C‑360/09, EU:C:2010:782) concerning the leniency procedure.
In the third place, AlzChem alleges infringement of the principle that exceptions must be interpreted strictly, in the light of which Article 4(2) of Regulation No 1049/2001 must be interpreted.
In the fourth place, AlzChem maintains that the application of the general presumption of confidentiality on the sole ground that the documents at issue form part of the administrative file purely and simply prevents an applicant from rebutting that presumption.
The Commission contends that that argument cannot succeed.
–
Findings of the Court
In the first place, as regards the application of the general presumption of confidentiality when the request for access concerns documents which have been specifically identified and are few in number, it must be recalled that it follows from the case-law of the Court of Justice that it is not only necessary to recognise the existence of a general presumption to the effect that the disclosure of the documents in the Commission’s administrative file in a State aid review procedure in principle, undermines the protection of the purpose of an investigation, audit or inspection (judgment of 29 June 2010,
Commission
v
Technische Glaswerke Ilmenau
, C‑139/07 P, EU:C:2010:376, paragraph 61), but also that that presumption applies irrespective of whether or not the application for access specifically identified the document or documents concerned (judgment of 14 July 2016,
Sea Handling
v
Commission
, C‑271/15 P, not published, EU:C:2016:557, paragraph 54).
The General Court did not therefore disregard the scope of the general presumption of confidentiality in finding, in paragraphs 25 and 26 of the judgment under appeal, that the mere fact that the documents at issue form part of the administrative file relating to a procedure for reviewing State aid was sufficient ground for the application of that presumption, even though those documents were specifically identified and few in number.
In the second place, as regards the appellant’s argument that ‘pre-existing’ documents are not covered by the general presumption of confidentiality, it must be noted that, first, it follows from the very nature of a State aid investigation that information about what may have taken place before the investigation was opened is collected, and that, secondly, it certainly does not follow from the Court’s case-law that such documents must be distinguished from the rest of the Commission’s administrative file.
Accordingly, the ‘pre-existing’ nature of certain of the documents applied for does not preclude them from being covered by the general presumption of confidentiality, because they form part of the Commission’s administrative file in an investigation procedure in the field of State aid.
In the third place, while the appellant claims that the General Court did not comply with the principle that exceptions must be interpreted strictly in taking a broad view of the general presumption of confidentiality, it appears however that, far from infringing that principle, which, moreover it points out must be complied with in paragraph 81 of the judgment under appeal, the General Court correctly applied that presumption to the documents in the Commission’s administrative file.
In the fourth place, by claiming that it was impossible, in those circumstances, for it to adduce any evidence to the contrary, the appellant disputes, in essence,  the fact that it must adduce evidence that the documents at issue are not covered by the general presumption of confidentiality.
However, as the General Court correctly recalled in paragraphs 31 and 83 of the judgment under appeal with reference to the case-law of the Court of Justice in that regard, the general presumption of confidentiality certainly does not preclude the appellant’s right to show that one or more given documents, whose disclosure it has requested, are not covered by that presumption or that there is an overriding public interest in their disclosure by virtue of Article 4(2) of Regulation No 1049/2001 (judgment of 29 June 2010,
Commission
v
Technische Glaswerke Ilmenau
, C‑139/07 P, EU:C:2010:376, paragraph 62).
In paragraph 32 of the judgment under appeal, the General Court also stated correctly that the general presumption that the disclosure of documents in an administrative file would, as a general rule, undermine the protection of the purposes of investigations is not irrebuttable and does not rule out the possibility that some of the specific documents contained in the Commission’s file relating to a procedure for reviewing State aid may be disclosed (see, to that effect, judgment of 14 July 2016,
Sea Handling
v
Commission
, C‑271/15 P, not published, EU:C:2016:557, paragraph 42).
Finally, it must be noted that the Court of Justice has previously held that the fact that it is difficult to adduce the evidence necessary to rebut a presumption does not in itself mean that that presumption is in fact irrebuttable (see, to that effect, judgment of 10 April 2014,
Areva and Others
v
Commission
, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 81).
All of the appellant’s arguments on those points must, therefore, be rejected.

The error of law allegedly committed by the General Court in finding that the general presumption of confidentiality could apply to documents relating to a closed investigation procedure
–
Arguments of the parties
AlzChem claims that, given the particular circumstances of the present case, the General Court erred in law in accepting that the general presumption of confidentiality could apply when the investigation procedure had been closed on 15 October 2014.
It maintains that the documents at issue were not of very great relevance to that investigation procedure and adds that the refusal to grant access to those documents cannot validly be based on the fact that the Commission can alter its analysis at the end of the legal action against the decision adopted at the end of the procedure, because it could, at any time, re-examine certain decisions relating to State aid. It also submits that the release of the documents at issue is not capable of adversely affecting the willingness of Member States to cooperate in State aid investigations and that two of the documents at issue pre-dated the investigation.
The Commission contends that that line of argument cannot succeed.
–
Findings of the Court
AlzChem’s arguments merely constitute repetition of the arguments previously set out in its application before the General Court, to which, moreover, that Court responded in paragraphs 36 to 61 of the judgment under appeal, and seek, in reality, to obtain no more than re-examination of the same arguments, which the Court of Justice does not have jurisdiction to undertake (see, to that effect, judgment of 14 October 2010,
Deutsche Telekom
v
Commission
, C‑280/08 P, EU:C:2010:603, paragraph 24).
As regards the only new argument contained in paragraph 54 of the application, concerning the need to interpret the concept of ‘ongoing investigations’, it is not supported by any accompanying detail to enable the merits of that submission to be assessed.
The entirety of that line of argument can only therefore be rejected as inadmissible.

The error of law that the General Court is alleged to have committed in finding that the disclosure of the documents at issue was not justified by an overriding public interest in protecting the right to an effective remedy laid down in Article 47 of the Charter and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
–
Arguments of the parties
AlzChem maintains that even if the documents at issue are covered by the general presumption of confidentiality, the right to an effective judicial remedy, which supposes that third parties have full knowledge of all the relevant facts, must take precedence.
The appellant claims that it follows from the case-law of the Court of Justice that if the judicial review is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons. It follows that the persons concerned must have full knowledge of the relevant facts underlying a decision of the Commission in order to be capable of bringing a legal action against it.
The appellant submits that it required access to the documents at issue in order to ascertain whether the Commission’s analysis was well founded and to exercise its right to an effective judicial remedy.
The appellant also claims that the existence of private interests cannot preclude recognition of the existence of a public interest and that the General Court was therefore wrong to find, in paragraph 73 of the judgment under appeal, that its application for access to the documents at issue concerned a private interest.
The appellant maintains that, contrary to what the General Court held in paragraph 70 of the judgment under appeal, the fact that it was able to bring an action against Decision 2015/1826 of 15 October 2014, referred to in paragraph 10 of the present judgment, does not justify a finding that its right to an effective remedy was fully observed.
The Commission contends that that line of argument should be rejected.
–
Findings of the Court
AlzChem claims that the General Court erred in law in finding that the disclosure of the documents at issue was not justified by an overriding public interest in protecting the right to an effective remedy laid down in Article 47 of the Charter and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
However, after noting, rightly, in paragraphs 65 to 66 of the judgment under appeal, the need, for the institution concerned to weigh, on the one hand, the particular interest to be protected by non-disclosure of the document concerned against, on the other hand, inter alia, the public interest in the document being made accessible (see, to that effect, judgment of 14 November 2013,
LPN and Finland
v
Commission
, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42), the General Court was also right to state, in paragraph 69 of the judgment under appeal, that if the judicial review is to be effective the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, so as to make it possible for him to defend his rights and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction (see, to that effect, judgment of 4 June 2013,
ZZ
, C‑300/11, EU:C:2013:363, paragraph 53).
As the Commission maintained in its response, that obligation to state reasons must not be confused with the system of access to documents of the institutions.
The General Court was therefore fully entitled to find, first, in paragraph 70 of the judgment under appeal, that the appellant had not been deprived of its right to an effective judicial remedy, since it had had access to Decision 2015/1826 of 15 October 2014, referred to in paragraph 10 of the present judgment and had been able to bring its action for annulment, and, secondly, in paragraph 73 of that judgment, in reliance on paragraph 146 of the judgment of 28 June 2012,
Commission
v
Éditions Odile Jacob
(C‑404/10 P, EU:C:2012:393), that the fact that the documents would have enabled the applicant to present more convincing arguments in its action for annulment does not constitute an overriding public interest in their disclosure, for the purposes of Article 4(2) of Regulation No 1049/2001, but rather a ‘private’ interest not covered by that article — that case-law also being applicable to the field of State aid (see, also, to that effect, judgment of 14 July 2016,
Sea Handling
v
Commission
, C‑271/15 P, not published, EU:C:2016:557, paragraphs 97 to 99).
Consequently, that part of the applicant’s line of argument must also be rejected.

The infringement of Article 15(3) TFEU and Article 42 of the Charter
–
Arguments of the parties
AlzChem claims that the General Court interpreted and applied Regulation No 1049/2001 in breach of the fundamental right of access to documents, laid down in Article 42 of the Charter and Article 15(3) TFEU.
The appellant submits that it is apparent from recital 2 of Regulation No 1049/2001 that that regulation seeks to give the fullest possible effect to the right of public access to documents and maintains that the General Court erred in law, in paragraph 80 of the judgment under appeal, in stating that the administrative activity of the Commission did not require such extensive access to documents as that required by the legislative activity of an institution. It claims that that finding, which follows from recital 6 of Regulation No 1049/2001, does not imply that it is necessary to confer ‘limited access’ with regard to documents relating to administrative procedures and adds that, contrary to what the General Court held in paragraph 88 of the judgment under appeal, the practices of the Member States in relation to access to documents must be taken into account as a constitutional and administrative tradition common to the Member States.
It submits, in that regard, that the broad interpretation of the general presumption of confidentiality applied by the General Court in the judgment under appeal, strips Article 42 of the Charter and Regulation No 1049/2001 of any substance.
The Commission contends that this line of argument should be rejected.
–
Findings of the Court
AlzChem claims that the application of the general presumption of confidentiality to the documents at issue is such as to infringe Article 42 of the Charter and Article 15(3) TFEU.
However, in paragraph 77 of the judgment under appeal, the General Court was right to find that if, by virtue of Article 15(3) TFEU, read together with Article 42 of the Charter, any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to the documents of the European Union’s institutions, bodies, offices and agencies, it is subject to the principles and conditions to be defined in accordance with that provision.
It must also be noted that the second subparagraph of Article 15(3) TFEU provides that ‘general principles and limits on grounds of public or private interest governing this right of access to documents shall be determined ... by means of regulations’ by the EU legislature.
Moreover, contrary to what the appellant appears to claim, the General Court did not consider, in paragraph 80 of the judgment under appeal, that it was necessary to confer ‘limited access’ with regard to documents linked to administrative procedures, but merely recalled that, as is apparent from the case-law of the Court of Justice, the administrative activity of the Commission does not require such extensive access to documents as that required by the legislative activity of an EU institution (see, inter alia, to that effect, judgments of 29 June 2010,
Commission
v
Technische Glaswerke Ilmenau
, C‑139/07 P, EU:C:2010:376, paragraph 60, and of 27 February 2014,
Commission
v
EnBW
, C‑365/12 P, EU:C:2014:112, paragraph 91).
Finally, the General Court was right to find, in paragraph 88 of the judgment under appeal, that the practices of the Member States in relation to access to documents can have no influence on the interpretation of Regulation No 1049/2001, which lays down a body of rules that is applicable exclusively to documents of the EU institutions and that is independent of comparable bodies of rules developed within those Member States.
It is therefore necessary to reject the entirety of that part of the appellant’s arguments and, accordingly, to reject that ground of appeal in its entirety.

The second ground of appeal, alleging infringement of the obligation to state reasons for the refusal to grant access to the documents at issue in a non-confidential version or on the Commission’s premises

Arguments of the parties
AlzChem claims, with particular reference to paragraphs 93 to 96 of the judgment under appeal, that the General Court erred in law in confirming the legality of the Commission’s rejection of its application for access to a non-confidential version of the documents at issue, when the Commission did not provide any specific justification in that regard. Nor did the Commission give sufficient justification for its refusal to grant access to those documents on its own premises.
The Commission considers that these arguments cannot succeed.

Findings of the Court
It must be held that the General Court was right to find, in paragraph 94 of the judgment under appeal, with reference to the case-law of the Court, that the documents covered by the general presumption of confidentiality do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect, judgments of 28 June 2012,
Commission
v
Éditions Odile Jacob
, C‑404/10 P, EU:C:2012:393, paragraph 133, and of 14 July 2016,
Sea Handling
v
Commission
, C‑271/15 P, not published, EU:C:2016:557, paragraph 61).
In addition, as the Commission submits, the possibility, provided for in Article 10 of Regulation No 1049/2001, of consulting documents on the spot, relied on by the appellant in its appeal, cannot apply if they are covered by that presumption.
Thus, nor did the General Court err in law in holding, in paragraphs 96 to 98 of the judgment under appeal, that the decision at issue contained sufficient reasons, since it justified the refusal to grant access to a non-confidential version of the documents at issue and the refusal to grant a request to consult those documents on the Commission’s premises, on the ground that they were covered by the general presumption of confidentiality.
It follows from the foregoing that the second ground of appeal must be rejected as inadmissible and, consequently, the appeal must be dismissed in its entirety.

Costs
In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Commission has applied for costs and AlzChem has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Court (First Chamber) hereby:
1.
Dismisses the appeal;
2.
Orders AlzChem AG to pay the costs.
Bonichot
Toader
Rosas
Bay Larsen

Safjan
Delivered in open court in Luxembourg on 13 March 2019.
A. Calot Escobar

J.-C. Bonichot
Registrar

President of the First Chamber
*
Language of the case: English.