CELEX: 62008TJ0250
Access to documents
Regulation (EC) No 1049/2001
Documents exchanged in the course of the assessment of the compatibility with Community law of measures taken with respect to television broadcasting activities
Refusal to grant access
Exception relating to the protection of the decision-making process
Exception relating to the protection of the purpose of inspections, investigations and audits

Legal context
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) defines the principles, conditions and limits governing
the right of access, laid down in Article 255 EC, to the documents of those institutions.
Under Article 4(2) to (6) of Regulation No 1049/2001:
‘2. 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.
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.
Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the
institution concerned shall be refused even after the decision has been taken 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.
5.      A Member State may request the institution not to disclose a document originating from that Member State without its prior
agreement.
6.      If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be
released.’
Under Article 8 of Regulation No 1049/2001:
‘1.      A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the
institution shall either grant access to the document requested and provide access in accordance with Article 10 within that
period or, in a written reply, state the reasons for the total or partial refusal. …
3.      Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the
applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant
provisions of the EC Treaty.’
Article 3a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation
or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p.
23), as inserted by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Directive [89/552]
(OJ 1997 L 202, p. 60), provides:
‘1. Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction
do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society
in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such
events via live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up
a list of designated events, national or non-national, which it considers to be of major importance for society. It shall
do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine
whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective
reasons in the public interest, whole or partial deferred coverage.
2.      Member States shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph 1. Within
a period of three months from the notification, the Commission shall verify that such measures are compatible with Community
law and communicate them to the other Member States. It shall seek the opinion of the Committee established pursuant to Article
23a. It shall forthwith publish the measures taken in the
Official Journal of the European Communities
and at least once a year the consolidated list of the measures taken by Member States.
3.      Member States shall ensure, by appropriate means, within the framework of their legislation that broadcasters under their
jurisdiction do not exercise the exclusive rights purchased by those broadcasters following the date of publication of this
Directive in such a way that a substantial proportion of the public in another Member State is deprived of the possibility
of following events which are designated by that other Member State in accordance with the preceding paragraphs via whole
or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial
deferred coverage on free television as determined by that other Member State in accordance with paragraph 1.’
Background to the dispute
By letter of 20 December 2005, Infront WM AG, a company governed by Swiss law which is engaged in the acquisition, management
and marketing of television broadcasting rights for sporting events, lodged a complaint with the Commission of the European
Communities concerning measures adopted by the United Kingdom of Great Britain and Northern Ireland under Article 3a of Directive 89/552
(‘the complaint’).
By letter of 18 December 2006, the applicant – Mr Edward William Batchelor – contacted the Commission, in his capacity as
legal counsel for Infront WM, and submitted observations concerning a letter which the Commission had sent to Infront WM on
27 September 2006 in the course of the examination of the complaint. In addition, the Commission was requested, in the letter
of 18 December 2006, to communicate all documents relating to the correspondence between the United Kingdom authorities and
the Commission since the submission of the complaint, together with all the statistics and data contained in the documents
communicated by the United Kingdom in that connection.
By letter of 16 January 2007, the Director of the Audiovisual, Media and Internet Directorate of Directorate General Information
Society and Media (‘DG INFSO’) replied that he understood the request for access to documents made in the letter of 18 December
2006 as referring to a letter from the Commission of 2 August 2006 and two letters from the United Kingdom authorities dated
5 September and 15 November 2006 respectively. However, according to the Director, those documents were covered by the exception
provided for in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of
inspections and investigations, since the examination of the complaint by the Commission could give rise to an action for
failure to fulfil obligations.
On 16 October 2007, the Commission adopted Decision 2007/730/EC on the compatibility with Community law of measures taken
by the United Kingdom pursuant to Article 3a(1) of Directive [89/552] (OJ 2007 L 295, p. 12). By Article 1 of Decision 2007/730,
the Commission declared the measures taken by the United Kingdom pursuant to Article 3a(1) of Directive 89/552 to be compatible
with Community law.
By letter of 7 February 2008, the Director-General of DG INFSO informed Mr Batchelor of the adoption of Decision 2007/730
and the position of his Directorate, according to which, following that decision and account being taken of the reasons set
out in the Commission’s letter of 27 September 2006, the complaint did not demonstrate an infringement of Community law by
the United Kingdom.
By letter of 21 December 2007, Mr Batchelor asked the Commission to reconsider the position set out in the letter of 16 January
2007 (see paragraph 7 above), taking account of the closure of the investigation concerning the compatibility with Community
law of the measures adopted by the United Kingdom. Furthermore, Mr Batchelor also asked the Commission, in particular, to
identify and disclose any documents submitted by the United Kingdom after 16 January 2007 and to disclose any non-confidential
information contained in correspondence concerning the content of the list of events adopted by the United Kingdom on the
basis of Article 3a of Directive 89/552.
By letter of 7 February 2008, the Director of the Audiovisual, Media and Internet Directorate of DG INFSO informed Mr Batchelor
that the documents to which he had requested access could not be disclosed to him, on the ground that they were covered by
the exception, provided for in the second indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of
court proceedings and legal advice because Case C-125/06 P
Commission
v
Infront WM
, between the Commission and Infront WM concerning the United Kingdom measures, was still pending before the Court of Justice.
By letter of 21 February 2008, Mr Batchelor lodged a confirmatory application, within the meaning of Article 7(2) of Regulation
No 1049/2001, with the Secretary General of the Commission. By letter of 14 March 2008, the Commission informed Mr Batchelor,
pursuant to Article 8(2) of Regulation No 1049/2001, that the time-limit prescribed in Article 8(1) thereof had been extended
by 15 working days.
By letter of 16 May 2008 (‘the express decision’), the Secretary General of the Commission gave his decision on Mr Batchelor’s
confirmatory application. The Secretary General explained, first, that three documents were covered by Mr Batchelor’s request:
(i) a letter from the Director General of DG INFSO to the United Kingdom Permanent Representative of 2 August 2006; (ii) a
letter from the United Kingdom authorities to the Commission of 5 September 2006; and (iii) a letter from the United Kingdom
Permanent Representative to the Commission of 19 February 2007 containing five annexes.
As regards the letters of 5 September 2006 and 19 February 2007, the Commission stated that it had consulted the United Kingdom
authorities, which relied on Article 4(5) of Regulation No 1049/2001 for their objection to the disclosure of those letters
based on the exception provided for in the second subparagraph of Article 4(3) of that regulation. Specifically, the United
Kingdom authorities argued that those documents contain the views which the United Kingdom had expressed – in confidence –
on the questions raised in the complaint. The disclosure of such views would seriously undermine the dialogue between the
Commission and the Member States with respect to the examination of the substance of a complaint, which would in turn undermine
the Commission’s decision-making process. Furthermore, the annexes to the letter of 19 February 2007 contain confidential
information concerning the commercial interests of broadcasters and other holders of television broadcasting rights for a
number of sporting activities. Accordingly, those annexes are covered by the exception provided for in the first indent of
Article 4(2) of Regulation No 1049/2001.
The Commission stated in the express decision that, given the reasoned opposition of the United Kingdom authorities to disclosure
of the letters at issue, it was obliged – as is clear from Case C-64/05 P
Sweden
v
Commission
[2007] ECR I‑11389 – to refuse the access requested by Mr Batchelor.
As regards the letter of 2 August 2006, the Commission stated that its disclosure would seriously undermine the protection
of the purpose of investigations, an exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001,
since the Commission would risk being confronted with an unwillingness to cooperate on the part of the Member States as regards
the assessment of the compatibility of the measures notified under Article 3a of Directive 89/552. According to the Commission,
the confidentiality of that document must be maintained until the General Court gives a ruling on the actions brought by the
Fédération Internationale de Football Association (FIFA) and the Union des associations européennes de football (UEFA) in
Cases T‑68/08 and T‑55/08, respectively, contesting Decision No 2007/730.
The Commission also refused to grant partial access to the letter of 2 August 2006 on the ground that that letter is covered
in its entirety by the exception under the third indent of Article 4(2) of Regulation No 1049/2001. Lastly, the Commission
found that there was no evidence to indicate the existence of an overriding public interest in the disclosure of the documents
to which Mr Batchelor had requested access.

Procedure and forms of order sought
By application lodged at the Court Registry on 18 June 2008, Mr Batchelor brought the present action.
By document lodged at the Court Registry on 30 September 2008, the United Kingdom applied for leave to intervene in the present
proceedings in support of the form of order sought by the Commission. By document lodged at the Court Registry on 2 October
2008, the Kingdom of Denmark applied for leave to intervene in the present proceedings in support of the form of order sought
by Mr Batchelor. By order of 2 December 2008, the President of the Seventh Chamber of the General Court granted those parties
leave to intervene. The United Kingdom lodged its statement in intervention, and the other parties lodged their observations
on that statement, within the prescribed time-limits.
By order of 4 August 2010, on the basis of Articles 65(b) and 66(1) and the third subparagraph of Article 67(3) of the General
Court’s Rules of Procedure, the President of the Seventh Chamber of the General Court ordered the Commission, to produce copies
of all of the documents to which it had refused access.
By letter of 6 September 2010, the Commission complied with that measure of inquiry.
Since the composition of the Chambers of the Court has been altered, the Judge‑Rapporteur has been assigned to the Second
Chamber, to which the present case has accordingly been allocated.
Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, in the context of the measures
of organisation of the procedure, put a question in writing to the Commission, to which it replied by letter of 29 October
2010.
At the hearing on 24 November 2010, the parties presented oral argument and replied to questions put by the Court.
Mr Batchelor claims that the Court should:
–        annul the implied decision of refusal of 9 April 2008 and the express decision;
–        order the Commission and the United Kingdom to pay the costs.
The Commission contends that the Court should:
–        dismiss the action against the implied negative decision as inadmissible;
–        dismiss the action against the express decision as unfounded;
–        order Mr Batchelor to pay the costs.
The United Kingdom contends that the Court should:
–        dismiss the action against the implied negative decision as inadmissible;
–        dismiss the action against the express decision as unfounded.

Law
Mr Batchelor puts forward two pleas in law: (i) breach of the duty to state reasons for a decision and (ii) infringement of
Article 255 EC, read in conjunction with Articles 1, 2 and 4 of Regulation No 1049/2001.
1.
Admissibility of the action contesting the implied decision

Arguments of the parties
The Commission, supported by the United Kingdom, contends that Mr Batchelor has no interest in bringing an action contesting
the implied decision which was deemed, in accordance with Article 8(3) of Regulation No 1049/2001, to have been taken on 9
April 2008 (‘the implied decision’). Given that the express decision was adopted before the action was brought, annulment
of the implied decision would not give Mr Batchelor any more of an advantage than he would have if the express decision were
to be annulled.
Mr Batchelor submits that the Commission’s position would lead to an absurd situation, in which the adoption of an express
decision after the expiry of the time‑limit prescribed in Article 8(1) of Regulation No 1049/2001 would make it impossible
for the Court to review an implied negative decision, which is by definition an act without a statement of reasons.

Findings of the Court
It follows from the case-law that, where an express decision of refusal is adopted after the period prescribed in Article
8(3) of Regulation No 1049/2001, the applicant no longer has an interest in bringing proceedings against an implied decision
deemed to have been adopted on account of the expiry of that period (see, to that effect, Joined Cases T-355/04 and T-446/04
Co-Frutta
v
Commission
[2010] ECR II-1, paragraph 45, and order of 17 June 2010 in Case T‑359/09
Jurašinović
v
Council
, not published in the ECR, paragraph 40). ). The legal consequences attaching to the expiry of that period, as regards access
to the documents concerned, become obsolete as soon as an express decision is adopted.
The interest relied on by Mr Batchelor at the hearing, consisting in the possibility of bringing a subsequent action for compensation
on the basis that the time-limit concerned was exceeded, does not call into question the assessment in paragraph 31 above.
The prior annulment of the implied decision is not a condition for bringing such an action.
It follows that the action must be dismissed as inadmissible in so far as it is directed against the implied decision.

2. The action contesting the express decision

The first plea: breach of the duty to state reasons
Arguments of the parties
As regards the express decision, Mr Batchelor first of all states that he is in no position to ascertain whether, in addition
to the documents identified by the Commission, there are others which are relevant to his request. Next, Mr Batchelor submits
that the reasoned opposition of a Member State, on the basis of Article 4(5) of Regulation No 1049/2001, to the disclosure
of a document does not release the Commission from its obligation to carry out a comprehensive review of the validity of the
reasons relied on by that Member State and to set out its own reasoning in that regard in accordance with Article 253 EC and
Article 8(1) of Regulation No 1049/2001. That approach is confirmed by several paragraphs in
Sweden
v
Commission
, paragraph 15 above, the Opinion of Advocate General Poiares Maduro in that case ([2007] ECR I‑11394), and the Commission’s
proposal concerning the amendment of Regulation No 1049/2001, which refers to the interpretation of Article 4(5) of that regulation
in the version in force.
Furthermore, to require the Commission to act in accordance with a reasoned refusal on the part of the Member State consulted
would be to disregard the wording of Article 4(5) of Regulation No 1049/2001, which refers to a ‘request’ by the Member State
concerned, and would amount to reintroducing the ‘authorship rule’ abolished by Regulation No 1049/2001.
The incoherence of the argument put forward by the Commission is also clear from the fact that it led the Commission to refuse
access even to documents in the public domain, such as the list of 2006 World Cup football matches, and the list of those
matches in the 1994, 1998 and 2002 World Cups which were not broadcast live on free-to-air television, and from the fact that
the Commission refused access to a document in respect of which the United Kingdom authorities had accepted disclosure.
As it is, apart from a slavish acceptance of the United Kingdom’s assessment, the express decision does not contain any reasoning
on the basis of which the Commission concluded that the reasons put forward by that Member State were valid or that there
was no overriding public interest in disclosure of the documents concerned. The situation mentioned in paragraph 36 above
also shows that the Commission did not examine the validity of the reasons put forward by the United Kingdom. Furthermore,
the express decision does not contain the reasons for refusal relied on in that regard by the United Kingdom in its statement
in intervention.
Lastly, the express decision does not contain any assessment by the Commission as to the possibility of granting partial access
to the documents requested.
Accordingly, Mr Batchelor submits, by relying exclusively on the reasoned refusal of the United Kingdom authorities concerning
his request for access to the documents and by failing to consider the possibility of granting partial access to the documents
covered by that request, the Commission acted in breach of its duty to state reasons for its decision.
As regards the Commission’s letter of 2 August 2006, Mr Batchelor claims that the assertion that its disclosure would prevent
the United Kingdom from cooperating and from providing the information necessary for the purposes of the Commission’s assessment
of the compatibility of the national measures with Community law is merely hypothetical and unsupported by any evidence. Accordingly,
it constitutes an insufficient statement of reasons.
The Commission and the United Kingdom dispute the merits of those arguments.
Findings of the Court
It is settled law that the statement of reasons required under Article 253 EC must be appropriate to the measure at issue
and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure,
in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court
to exercise its power of review. The requirement to state reasons must be evaluated according to the circumstances of each
case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees
of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is
not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement
of reasons meets the requirements of Article 253 EC must be assessed with regard not only to the wording of the measure, but
also to its context and to all the legal rules governing the matter in question (Case C-265/97 P
VBA
v
Florimex and Others
[2000] ECR I‑2061, paragraph 93).
First of all, as regards Mr Batchelor’s assertion that he is not in a position to ascertain whether other documents relevant
to his application exist which are not identified in the express decision, it must be stated that the Commission clearly identified
in that decision the documents covered by Mr Batchelor’s request. In that respect, therefore, the express decision is reasoned
to the requisite legal standard.
Next, it must be found that, as regards the documents originating from the United Kingdom authorities, the extent of the Commission’s
duty to state reasons depends on the definition of the legal consequences attaching to a Member State’s objection, on the
basis of Article 4(5) of Regulation No 1049/2001, to the disclosure of a document.
In that connection, it should be observed that to interpret Article 4(5) of Regulation No 1049/2001 as conferring on the Member
State a general and unconditional right of veto, so that it can oppose, in an entirely discretionary manner and without having
to give reasons for its decision, the disclosure of any document held by a Community institution, simply because it originates
from that Member State, is not compatible with the objective of improving transparency in the decision-making process in the
European Union. If such an interpretation were to be applied, an especially important class of documents which could form
the basis of the Community decision-making process and cast light on it would be removed from the scope of Regulation No 1049/2001.
As a consequence, the right of public access would be frustrated, to that extent, without any objective reason (see, to that
effect,
Sweden
v
Commission
, paragraph 15 above, paragraphs 58 to 60, 62 and 64).
Thus, the Member State concerned is obliged to state reasons for any objection it may have, by reference to the exceptions
listed in Article 4(1) to (3) of Regulation No 1049/2001. Where a Member State fulfils that obligation, the institution concerned
must refuse the request for access, but must discharge its own obligation to state reasons, by explaining in its decision
the reasons relied on by that Member State to show that one of the exceptions provided for under Article 4(1) to (3) of Regulation
No 1049/2001 applies (see, to that effect,
Sweden
v
Commission
, paragraph 15 above, paragraphs 87, 89 and 90).
It follows from those considerations – which are intended to safeguard the objective of Regulation No 1049/2001 while attempting
to attribute to Article 4(5) thereof a legislative content which is separate and distinct from that of Article 4(4) – that,
after stating that the objection entered by a Member State sets out the reasons for which, in the view of that State, the
documents concerned are covered by an exception to the right of access, the Commission need not set out its own assessment
of the merits of that reasoning.
In the present case, as regards the documents originating from the United Kingdom, the Commission set out, in Section 2 of
the express decision, the reasons relied on by that Member State and stated that those reasons are formulated by reference
to the exceptions listed in the first indent of Article 4(2) and the second subparagraph of Article 4(3) of Regulation No
1049/2001. The Commission has therefore fulfilled its obligation under Article 253 EC and Article 8(1) of Regulation No 1049/2001
to state reasons.
Lastly, as regards the Commission’s letter of 2 August 2006, it should be noted that the duty to provide a statement of reasons
is an essential procedural requirement, as distinct from the question whether the reasons given are sound, which goes to the
substantive legality of the contested measure (see Case T‑112/05
Akzo Nobel and Others
v
Commission
[2007] ECR II‑5049, paragraph 94).
It must be found that the arguments relied on by Mr Batchelor in that regard in order to demonstrate the lack of reasoning
in the express decision, or the insufficiency of the reasons stated, in fact concern the merits of those reasons, which will
be examined in the context of the second plea. Moreover, it should be observed that Section 3.1 of the express decision states
the reasons why the Commission took the view that disclosure of the letter at issue would undermine the purpose of the investigation
and accordingly fell to be refused, pursuant to the third indent of Article 4(2) of Regulation No 1049/2001.
The first plea must therefore be rejected.

The second plea: infringement of Article 255 EC, read in conjunction with Articles 1, 2 and 4 of Regulation No 1049/2001
The documents from the United Kingdom
–       Arguments of the parties
Mr Batchelor claims that, according to the case-law, all exceptions to the right of access to documents must be interpreted
restrictively, as the principle of access must be protected.
As regards the exception based on the second subparagraph of Article 4(3) of Regulation No 1049/2001 (see paragraph 14 above),
Mr Batchelor observes that, in the present case, a Member State has relied on a provision intended to protect the Commission’s
decision-making process in future cases. By the time both the implied and express decisions were adopted, the Commission had
already adopted Decision 2007/730 and closed the complaint file (see paragraphs 8 and 9 above). By its very essence, which
is exclusively linked to the decision-making procedure of the institutions, that exception may be relied on only by the institutions.
In that connection, the fact that the United Kingdom authorities had not sent the documents identified in the express decision
in order for them to be made public is irrelevant, as is the argument that those documents had also been examined in the context
of the complaint.
Furthermore, the consideration that disclosure of the documents at issue would affect the willingness of the Member States
to cooperate with the Commission relates to a situation which is not reasonably foreseeable, but purely hypothetical. Moreover,
the Member States are required to cooperate with the Commission pursuant to Article 10 EC and cannot disregard that obligation
on the ground that the Commission has allowed access to a document in accordance with Regulation No 1049/2001. In that connection,
Mr Batchelor recalls the position adopted by the Commission itself as regards the assessment of measures falling within the
scope of Article 3a of Directive 89/552, according to which the Commission will carry out the assessment in question only
if sufficient information is provided by the Member State as to the importance of each event for society and the procedures
followed for the choice of the events concerned. A failure on the part of the Member State to cooperate in the context of
the procedure established by Article 3a(2) of Directive 89/552 is therefore inconceivable.
Mr Batchelor points out that, under Article 3a(1) of Directive 89/552, Member States have an obligation to compile a list
of events of major importance to society in a clear and transparent manner, which means that, even after a decision has been
taken on the compatibility of the list with Community law, disclosure of the documents relating to that list which have been
submitted to the Commission cannot be refused on the ground that the Member State would withhold its future cooperation. Even
though the Commission received the documents originating from the United Kingdom authorities in response to a request for
information which it had sent to them in connection with the complaint, Decision 2007/730 was based on that information.
In that context, Mr Batchelor submits that, according to the Commission itself, the information provided by the United Kingdom
in the context of the examination of the complaint was relevant for the purposes of assessing the compatibility of the United
Kingdom measures with Community law and that, according to the letter of 7 February 2008 (see paragraph 9 above), the adoption
of Decision 2007/730 led to no further action being taken with respect to the complaint. Thus, in the express decision, the
Commission identified the documents at issue as falling within the scope of Mr Batchelor’s confirmatory request, which concerned
the documents relating to the assessment of the measures notified by the United Kingdom pursuant to Article 3a(2) of Directive
89/552. It follows that the assessment of the compatibility of those measures coincided with the examination of the complaint
and that the Commission’s arguments – set out for the first time in the defence – alleging a distinction between the two procedures,
must be dismissed. Mr Batchelor points out in that regard that, according to the express decision, the letter of 19 February
2007 offered the views of the United Kingdom authorities on the Commission’s approach to certain questions relating to Article 3a
of Directive 89/552.
Furthermore, the argument relating to the possibility of reopening the assessment procedure with respect to the measures notified
by the United Kingdom following annulment of Decision 2007/730 by the General Court cannot be accepted, because it would justify
the non-disclosure of all documents communicated to the Commission during an investigation.
Accordingly, by relying on the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001
in order to refuse access to the documents from the United Kingdom, the Commission erred in law.
Furthermore, Mr Batchelor states that, by failing to consider the possibility of granting partial access to the documents
requested, the Commission infringed Article 4(6) of Regulation No 1049/2001. Moreover, the express decision does not indicate
whether the Commission had invited the United Kingdom to state reasons for its position on the possibility of partial access
or whether such reasons were in fact provided.
For its part, the Commission contends, first of all, that in the context of the application of Article 4(5) of Regulation
No 1049/2001, its power is limited to checking that the objections made by the Member State are based on Article 4(1) to (3)
of Regulation No 1049/2001 and that they do not manifestly fall outside the scope of the exceptions under those provisions.
Concomitantly, the review exercised by the Courts of the European Union of the legality of the Commission’s assessment should
be limited to verifying that the Commission has in fact carried out that examination.
Next, as regards the exception based on the second subparagraph of Article 4(3) of Regulation No 1049/2001 (see paragraph
14 above), the Commission states that the documents provided by the United Kingdom were provided in the context of the examination
of the complaint and contain the views of the United Kingdom authorities submitted in the course of preliminary consultations
with the Commission. Supported by the United Kingdom, the Commission maintains that, contrary to the assertions made by Mr
Batchelor, a Member State participating in the decision-making process leading to the adoption of an act of an institution
is entitled to rely on the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001, which
is intended to protect the ‘time to reflect’ inherent in that process. In the present case, the risk of undermining that process
– which involves verification of a similar kind, both under Article 3a of Directive 89/552 and in infringement proceedings
– is reasonably foreseeable despite the closure of the investigation concerned, since the lawfulness of Decision 2007/730
is challenged before the General Court in Cases T-55/08
UEFA
v
Commission
and T-68/08
FIFA
v
Commission
. Those documents, which the Commission had used both for the purposes of its examination under Article 3a of Directive 89/552
and in connection with the complaint, would be of key importance in the reopening of the procedure for investigating the compatibility
with Community law of the measures adopted by the United Kingdom, if Decision 2007/730 were to be annulled on substantive
grounds. The United Kingdom authorities would once again have to be able to cooperate in full confidence with the Commission
until the case was finally closed, failing which the Commission’s decision-making process would be seriously undermined. In
those circumstances, the reasoning followed by the United Kingdom is not manifestly inappropriate.
The Commission adds that the obligation to cooperate laid down in Article 10 EC does not preclude the Member States from requesting
that certain information be kept confidential. Moreover, the Member States’ obligation to cooperate in the context of Article
3a(2) of Directive 89/552 is irrelevant in the present case, since the documents concerned were produced in the course of
the examination of a complaint and do not form part of the notification made by the United Kingdom under that provision.
The United Kingdom states that, even though some information contained in Annexes (iv) to (vi) to the letter of 19 February
2007 is not confidential, the manner of its presentation reveals certain information which cannot be disclosed without undermining
the mutual confidence which must govern communications between the Commission and a Member State in the circumstances of the
present case.
–       Findings of the Court
It should be made immediately clear that, in view of the explanations provided by the Commission in its defence and its letter
of 29 October 2010, according to which it no longer opposed disclosure of the first two annexes to the letter from the United
Kingdom’s Permanent Representative, with the exception of certain information in respect of which the exception provided for
in the first indent of Article 4(2) of Regulation No 1049/2001 was invoked (see paragraph 14 above), Mr Batchelor stated at
the hearing that he no longer challenged the assessment made in the express decision in relation to that information.
Thus, as regards the documents originating from the United Kingdom, Mr Batchelor raises, in essence, a plea alleging infringement
of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
In that connection, the position defended by the Commission and the United Kingdom as to the extent of review by the Courts
in cases where Article 4(5) of Regulation No 1049/2001 applies (see paragraph 60 above) must be rejected from the outset.
Where a Member State relies on Article 4(5) of Regulation No 1049/2001 and pleads grounds for refusal listed in Article 4(1)
to (3) thereof, it is within the jurisdiction of the Courts of the European Union to verify, where a person to whom the institution
has refused to grant access so requests, that that refusal was validly based on those exceptions, despite the fact that the
refusal results from the assessment of those exceptions made, not by the institution itself, but by the Member State concerned.
In addition, it should be pointed out that, from the point of view of the person concerned, the intervention of the Member
State does not detract from the Community nature of the decision that is subsequently addressed to him by the institution
in response to the request he has made for access to a document in its possession (see, to that effect,
Sweden
v
Commission
, paragraph 15 above, paragraph 94).
Furthermore, in view of the objectives pursued by Regulation No 1049/2001, the exceptions, listed in Article 4 thereof, to
the public’s right of access to documents of the institutions must be interpreted and applied strictly (see, to that effect,
Joined Cases C-39/05 P and C-52/05 P
Sweden and Turco
v
Council
[2008] ECR I‑4723, paragraph 36).
As regards the interpretation of the second subparagraph of Article 4(3) of Regulation No 1049/2001, it should be observed
that that provision is intended to protect certain types of documents drawn up in the course of a procedure, the disclosure
of which, even after that procedure has terminated, may undermine the decision-making process of the institution concerned.
Those documents must contain ‘opinions for internal use as part of deliberations and preliminary consultations within the
institution concerned’.
According to Section 2 of the express decision, the documents originating from the United Kingdom satisfy that definition,
since they contain the ‘opinions’ of the United Kingdom authorities ‘for internal use’ of the Commission ‘as part of preliminary
consultations between the Commission and those authorities’.
Furthermore, in response to a question put by the Court at the hearing, the Commission explained that, in its view, the second
subparagraph of Article 4(3) of Regulation No 1049/2001 also covers documents originating from bodies external to the institution
concerned since, even though they are intended to provide information, they express – albeit by implication – the opinion
of their author as to the accuracy or relevance of the information concerned.
However, the terms in which the second subparagraph of Article 4(3) of Regulation No 1049/2001 is framed cannot be so broadly
construed. First, to hold that a document is intended for internal use by an institution simply because that institution is
the addressee would render that condition meaningless, because it would be satisfied by any document received by an institution.
Secondly, the interpretation underpinning the position set out in the express decision fails to have regard for the fact that
deliberations or preliminary consultations must, according to that provision, take place ‘within the institution’. As it is,
reference is made in the express decision to consultations between the Commission and the United Kingdom authorities, which
accordingly did not take place ‘within the institution’.
Far from being the outcome of mere grammatical construction, those findings are consistent with the principle set out in paragraph
68 above, which the position defended in the express decision and expanded upon by the Commission at the hearing fails to
take into account. Furthermore, those findings preserve the effectiveness of the first subparagraph of Article 4(3) of Regulation
No 1049/2001 and, consequently, the logic dictating the need for two separate subparagraphs in that provision, the first concerning
the period up to the completion of the decision-making process and the second covering also the period after such completion.
First of all, if the second subparagraph of Article 4(3) of Regulation No 1049/2001 were construed as covering every document
sent to an institution by an external sender which contains an ‘opinion’ in the broadest sense of that word and which could
give rise to a reply, on the view that those factors combine to make up a ‘consultation’ for the purposes of that provision,
the effect would be that the second subparagraph of Article 4(3) would cover as wide a category of ‘documents’ as the first
subparagraph. Next, given that those categories of documents would be protected in identical conditions – if, that is to say,
their disclosure would seriously undermine the decision-making process – the first subparagraph would become redundant, since
the second covers the period both before and after the completion of that process.
The documents sent to an institution by an external person or body, in order to be the subject of an exchange of views with
the institution concerned, do not therefore fall within the scope of the second subparagraph of Article 4(3) of Regulation
No 1049/2001. It follows that the United Kingdom could not validly base its arguments on that provision in order to request
the Commission to refuse to give access to the letters concerned. It should be added that the fact that, in
Sweden
v
Commission
, paragraph 15 above, the Court acknowledged that a Member State may rely on the exceptions provided for in Article 4(3) of
Regulation No 1049/2001 does not in any way call that finding into question: the reference to Article 4(3) made by the Court
of Justice in that judgment can be explained by the existence of the first subparagraph of that provision, which also covers
documents received by an institution.
In any event, it must be held that the condition relating to the risk that the decision-making process of the institution
would be seriously undermined is not satisfied in the present case.
In that regard, it should be borne in mind that the examination required for the purposes of processing a request for access
to documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by
an exception is not sufficient to justify application of that exception. Such application may, as a rule, be justified only
if the institution has previously assessed whether access to the document would specifically and effectively undermine the
protected interest. On the other hand, the risk of a protected interest being undermined must, if it is to be relied upon,
be reasonably foreseeable and not purely hypothetical (see judgment of 11 March 2009 in Case T-166/05
Borax Europe
v
Commission
, not published in the ECR, paragraph 88 and the case-law cited).
It should also be recalled that the documents in question were provided by the United Kingdom in response to a letter from
the Commission of 2 August 2006, which was sent to the United Kingdom authorities following the submission of the complaint.
As emerges from the fourth paragraph of Section 2 of the express decision, the United Kingdom takes the view that the disclosure
of those letters would seriously undermine its cooperation in good faith with the Commission in the examination of a complaint
concerning an alleged infringement of Community law, as it would be prevented from responding frankly to the Commission’s
requests. That would jeopardise the Commission’s decision-making process in the case of alleged infringements of Community
law.
That argument cannot be accepted. To acknowledge a declaration, by which a Member State manifests its unwillingness to cooperate
with the institution if the latter allows access to a document, as evidence that the decision-making process would be seriously
undermined for the purposes of the second subparagraph of Article 4(3) of Regulation No 1049/2001 would amount to giving the
Member States discretionary power in that matter or would, at least, make the policy of access to documents implemented by
that regulation conditional upon the relevant national policies. That would not be compatible either with the system of access
to documents established by Regulation No 1049/2001 (see, that that effect,
Sweden
v
Commission
, paragraph 5 above, paragraphs 58 and 65) or with the Member States’ obligation under Article 10 EC to cooperate with the
Commission in good faith.
It follows that the second subparagraph of Article 4(3) and Article 4(5) of Regulation No 1049/2001 must be interpreted as
precluding a Member State from relying on its own unwillingness to cooperate with the Commission, in the event that a document
were to be disclosed under Regulation No 1049/2001, as a valid basis for the claim that the decision-making process of the
institution concerned would be seriously undermined.
The express decision must therefore be annulled in so far as it concerns the refusal of access to the letters of 5 September
2006 and 19 February 2007, except to the extent that it concerns the information contained in the first two annexes to the
letter of 19 February 2007, in respect of which the exception provided for in the first indent of Article 4(2) of Regulation
No 1049/2001 has been invoked.
The document from the Commission
–       Arguments of the parties
Mr Batchelor states that the fact that a document concerns an inspection or investigation is not enough in itself to justify
the application of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. The Commission
is required, therefore, to show in the reasons for its decision that it is reasonably foreseeable that disclosure of the document
concerned would actually undermine the protection of the purpose of the investigation or inspection.
Furthermore, the provision establishing the exception relied on by the Commission is not intended to protect the investigation
as such, but the purpose of that investigation, so the protected interest is unlikely to be undermined after the investigation
concerned has been closed.
As it is, in the present case, the Commission has not explained how disclosure of its letter of 2 August 2006 might induce
the United Kingdom authorities to withhold information in a procedure with which the Member States are required to cooperate
and which, as matters stood, had already been closed. In those circumstances, the possibility that the General Court might
annul Decision 2007/730 could only be regarded as a hypothetical, future and probably distant event.
Moreover, the Commission refers in the express decision to the information provided by the Member State, even though the letter
at issue emanated from the Commission itself. Lastly, the Commission has disregarded the existence of an overriding public
interest which justifies disclosure of the relevant document and meets the need for increased transparency and public participation
in the decision-making process. It follows that the Commission erred in relying, as regards the letter of 2 August 2006, on
the exception provided for in the third subparagraph of Article 4(2) of Regulation No 1049/2001 and that, accordingly, the
express decision should be annulled.
The Commission states that a distinction must be drawn between, on the one hand, the documents forming part of the United
Kingdom’s notification under Article 3a(2) of Directive 89/552 and, on the other, documents submitted to the Commission in
the context of the investigation opened after the complaint was lodged, which constitutes a procedure distinct from the notification
procedure. The Commission also states that the investigation in respect of which the exception in the third indent of Article
4(2) of Regulation No 1049/2001 is invoked is an investigation under Article 3a(2) of Directive 89/552. Furthermore, the Commission
carried out an individual assessment of the document by reference to the exception invoked and concluded, by means of a sufficient
and proper statement of reasons, that there was a reasonably foreseeable risk that the purpose of the investigation would
be undermined. In that regard, as the express decision states, if Decision 2007/730 were to be annulled on substantive grounds
in Cases T‑55/08
UEFA
v
Commission
and T‑68/08
FIFA
v
Commission
, then pending, the assessment procedure would have to be reopened and the information gathered prior to the adoption of the
decision would have to be re-examined, including the information in the documents to which access had been refused.
The Commission also explains that it did not rely on the exceptions provided for in the second indent of Article 4(2) and
the second subparagraph of Article 4(3) of Regulation No 1049/2001 with respect to the letter of 2 August 2006.
Lastly, the Commission rejects both Mr Batchelor’s assertion that it had failed to consider the possibility of granting partial
access, on the ground that it made an assessment of the application of the exception to the individual document concerned,
and the argument that it had disregarded the overriding public interest in disclosure of the letter of 2 August 2006.
–       Findings of the Court
As regards the content of the letter of 2 August 2006, Mr Batchelor points out an error concerning the assertion made in the
express decision that the letter in question contains information provided by the United Kingdom, whereas it is the first
letter sent by the Commission after the complaint was lodged. As is clear from Section 3.1 of the express decision, the Commission
justified the non‑disclosure of that document by reference to the risk that Member States would no longer wish to cooperate
in procedures under Article 3a of Directive 89/552 if they thought that the information they pass on might subsequently be
communicated to third parties. It is clear from the letter of 2 August 2006, which was produced by the Commission in the context
of the measures of inquiry (see paragraphs 20 and 21 above), that it does not contain any information originating from the
United Kingdom authorities. The letter in question is a summary of the complaint and its purpose is to seek the opinion of
the United Kingdom authorities about Infront WM’s allegations. The only reference to information provided by the United Kingdom
authorities concerns the audience figures, which were nevertheless criticised in the complaint and therefore already in Mr
Batchelor’s possession as legal counsel for Infront WM (see paragraphs 5 and 6 above). It follows that the reason relied on
by the Commission in the express decision in order to justify non-disclosure of the document in question is not compatible
with the content of that letter.
In any event, even leaving that fact aside, it should be observed that the facts relied on by the Commission in the express
decision are not sufficient to satisfy the conditions laid down in the third indent of Article 4(2) of Regulation No 1049/2001.
In that connection, it should be observed that, as the Commission states (see paragraph 87 above), the investigation in respect
of which the relevant exception is invoked is the procedure for the assessment of the compatibility with Community law of
the measures adopted by the United Kingdom in the context of Article 3a of Directive 89/552.
However, the purpose of the Commission’s involvement in that procedure is to verify whether the mechanism provided for under
Article 3a(3) of that directive – involving obligations for the other Member States and constituting an impediment to the
freedom to provide services – may, in the present case, be triggered. Furthermore, if, after the complaint was lodged, the
Commission requested clarification and further information from the United Kingdom authorities, it was clearly because they
were necessary for the purposes of its assessment.
In those circumstances, it must be found that, if a Member State does not wish to forward to the Commission the documents
necessary for the purposes of that assessment, on the ground that it objects to their possible disclosure by the Commission
to third parties pursuant to Regulation No 1049/2001, the only consequence will be that the Commission will not carry out,
in the context of Article 3a of Directive 89/552, the assessment of the compatibility with Community law of the measures adopted
by the Member State and primary law will apply in full. It should be added in that regard that, under Article 3a of Directive
89/552, the role of the Commission is not to implement a European Union policy on public access to events of major importance
for society, but simply to provide a mechanism to prevent the circumvention of any relevant national measures where they are
in conformity with Community law. Furthermore, as the use of the word ‘may’ in Article 3a(1) of Directive 89/552 makes clear,
Member States are free to decide whether they wish to implement a policy on events of major importance for their society.
Accordingly, the purpose of the Commission’s investigation is not to grant access, through free television, to events of major
importance for society, but to ensure that Community law is complied with where a Member State wishes to avail itself of the
mutual recognition mechanism in relation to measures which it adopts as part of a policy in that field. However, the objective
of compliance with Community law is not jeopardised if a Member State does not wish to cooperate in the assessment as to whether
the measures which it adopts or intends to adopt are compatible with Community law: in such circumstances, those measures
will not be examined by the Commission, but nor will they benefit from mutual recognition, and the freedom to provide services
guaranteed by primary law will apply in full.
It follows that, by relying on the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse disclosure to
Mr Batchelor of the letter of 2 August 2006, the Commission erred in law.
Accordingly, the express decision must be annulled, except in so far as it concerns the information contained in the first
two annexes to the letter of 19 February 2007, in respect of which the exception provided for in the first indent of Article 4(2)
of Regulation No 1049/2001 has been invoked.

Costs
Under Article 87(2) 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. Since the Commission has been essentially unsuccessful, it must be ordered
to pay the costs, since the applicant applied for costs, with the exception of the costs it incurred as a result of the intervention
of the United Kingdom. In that connection, the United Kingdom must be ordered to pay the costs incurred by the applicant on
account of its intervention in accordance with the applicant’s pleadings.
The United Kingdom and the Kingdom of Denmark should bear their own costs, pursuant to Article 87(4) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.
Dismisses as inadmissible the action against the implied decision of refusal deemed to have been adopted on 9 April 2008;
2.
Annuls the decision of the Secretary General of the European Commission of 16 May 2008, except in so far as it concerns the
information contained in the first two annexes to the letter of 19 February 2007, in respect of which the exception provided
for in the first indent of Article 4(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 has been invoked;
3.
Orders the Commission to bear its own costs and to pay those incurred by Mr Edward William Batchelor;
4.
Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs and to pay the costs incurred by Mr
Batchelor as a result of its intervention;
5.
Orders the Kingdom of Denmark to bear its own costs.
Forwood
Dehousse
Schwarcz
Delivered in open court in Luxembourg on 24 May 2011.
[Signatures]
*
Language of the case: English.