# C_2015311EN.01001701.xml

| 21.9.2015 | EN | Official Journal of the European Union | C 311/17 |
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21.9.2015

EN

Official Journal of the European Union

C 311/17

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Appeal brought on 8 June 2015 by Sea Handling SpA, in liquidation, formerly Sea Handling SpA against the judgment of the General Court (Fourth Chamber) of 25 March 2015 in Case T-456/13, Sea Handling v Commission

(Case C-271/15 P)

(2015/C 311/22)

Language of the case: Italian

Parties

Parties

Appellant: Sea Handling SpA, in liquidation, formerly Sea Handling SpA (represented by: B. Nascimbene and M. Merola, avvocati)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| 1. | set aside the judgment of the General Court of the European Union of 25 March 2015 in Case T-456/13; |
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1.

set aside the judgment of the General Court of the European Union of 25 March 2015 in Case T-456/13;

| 2. | annul European Commission Decision Ref. Ares (2013) 2028929 of 12 June 2013 refusing SEA Handling’s request for access to certain documents concerning Case SA.21420 — Italy/SEA Handling; |
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2.

annul European Commission Decision Ref. Ares (2013) 2028929 of 12 June 2013 refusing SEA Handling’s request for access to certain documents concerning Case SA.21420 — Italy/SEA Handling;

| 3. | order the European Commission to pay the costs, including those relating to the proceedings before the General Court. |
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3.

order the European Commission to pay the costs, including those relating to the proceedings before the General Court.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| 1. | First ground alleging that the General Court erred in law and provided contradictory and insufficient reasoning in the judgment under appeal, in the assessment of the exception relating to the protection of the purpose of investigations as referred to in the third indent of Article 4(2) of Regulation No 1049/2001 (1).
  The General Court erred in law in so far as it upheld the Commission’s use to the general presumption of confidentiality in respect of a request for access to specific documents. The General Court’s interpretation of the exception relating to protection of the purpose of investigations under the third indent of Article 4(2) of Regulation No 1049/2001 introduces a restriction on the right of access to documents which (i) is disproportionate to the purposes of Article 4 of Regulation No 1049/2001 and (ii) lacks an adequate statement of reasons.
  With regard to the first objection, the appellant complains that the General Court cannot allow the Commission to oppose the general presumption in favour of a request for access to documents of a state aid procedure which identifies, in a precise and timely manner, the documents requested. This is all the more so when, in a context like the present case, characterised by deplorable procedural infringements attributable to the Commission, such an action ends up transforming the general presumption of confidentiality into an irrebuttable presumption, which cannot be challenged by the party seeking access to the measures, in breach of the provisions of Article 4 of Regulation No 1049/2001.
  With regard to the second objection, the appellant complains that, in the judgment under appeal, the General Court failed to provide adequate reasons for considering that it was possible to apply the legal principle set out by the Court of Justice in its judgment of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C-139/07 P, ECR, EU:C:2010:376, to cases concerning a request for access not to the entire file but to specifically identified documents. |
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1.

First ground alleging that the General Court erred in law and provided contradictory and insufficient reasoning in the judgment under appeal, in the assessment of the exception relating to the protection of the purpose of investigations as referred to in the third indent of Article 4(2) of Regulation No 1049/2001 (1).

1

The General Court erred in law in so far as it upheld the Commission’s use to the general presumption of confidentiality in respect of a request for access to specific documents. The General Court’s interpretation of the exception relating to protection of the purpose of investigations under the third indent of Article 4(2) of Regulation No 1049/2001 introduces a restriction on the right of access to documents which (i) is disproportionate to the purposes of Article 4 of Regulation No 1049/2001 and (ii) lacks an adequate statement of reasons.

With regard to the first objection, the appellant complains that the General Court cannot allow the Commission to oppose the general presumption in favour of a request for access to documents of a state aid procedure which identifies, in a precise and timely manner, the documents requested. This is all the more so when, in a context like the present case, characterised by deplorable procedural infringements attributable to the Commission, such an action ends up transforming the general presumption of confidentiality into an irrebuttable presumption, which cannot be challenged by the party seeking access to the measures, in breach of the provisions of Article 4 of Regulation No 1049/2001.

With regard to the second objection, the appellant complains that, in the judgment under appeal, the General Court failed to provide adequate reasons for considering that it was possible to apply the legal principle set out by the Court of Justice in its judgment of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C-139/07 P, ECR, EU:C:2010:376, to cases concerning a request for access not to the entire file but to specifically identified documents.

Commission

Technische Glaswerke Ilmenau

| 2. | Second ground alleging error of law in the judgment under appeal in so far as the General Court rejects the possibility of partial access to the documents.
  The General Court erred in holding that the application of the general presumption justified the refusal to disclose the requested documents, approving the Commission’s refusal to grant partial access to them. In the present case, there was a failure to meet the conditions which previously have led the General Court to deny partial access to files covered by the general presumption of confidentiality; the Commission therefore could not be entitled to refuse partial access solely on the ground that the documents requested were contained in the administrative file concerning a procedure for reviewing State aid. |
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2.

Second ground alleging error of law in the judgment under appeal in so far as the General Court rejects the possibility of partial access to the documents.

The General Court erred in holding that the application of the general presumption justified the refusal to disclose the requested documents, approving the Commission’s refusal to grant partial access to them. In the present case, there was a failure to meet the conditions which previously have led the General Court to deny partial access to files covered by the general presumption of confidentiality; the Commission therefore could not be entitled to refuse partial access solely on the ground that the documents requested were contained in the administrative file concerning a procedure for reviewing State aid.

| 3. | Third ground alleging error of law in the judgment under appeal in so far as the General Court failed to fulfil its obligation to examine the documents affected by the refusal of access.
  The General Court erred in law in so far as it failed to fulfil its obligation to examine the documents affected by the refusal of access, stating that it could review the Commission’s actions without examining the documentation in question. |
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3.

Third ground alleging error of law in the judgment under appeal in so far as the General Court failed to fulfil its obligation to examine the documents affected by the refusal of access.

The General Court erred in law in so far as it failed to fulfil its obligation to examine the documents affected by the refusal of access, stating that it could review the Commission’s actions without examining the documentation in question.

| 4. | Fourth ground alleging that the General Court contradicted itself and erred in law in so far as it failed to take sufficient account of the procedural defects committed when adopting the contested decision.
  The judgment under appeal is vitiated by an error of law in so far as the General Court did not accept that the procedural defects committed by the Commission had an impact on the ability of the applicant to put forward its point of view as to the applicability of the presumption of confidentiality in the case at issue. The General Court failed to consider that the errors in question nullified the applicant’s procedural rights and, thereby, transformed the general presumption of harm to the investigative activities from a rebuttable presumption to an irrebuttable one. |
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4.

Fourth ground alleging that the General Court contradicted itself and erred in law in so far as it failed to take sufficient account of the procedural defects committed when adopting the contested decision.

The judgment under appeal is vitiated by an error of law in so far as the General Court did not accept that the procedural defects committed by the Commission had an impact on the ability of the applicant to put forward its point of view as to the applicability of the presumption of confidentiality in the case at issue. The General Court failed to consider that the errors in question nullified the applicant’s procedural rights and, thereby, transformed the general presumption of harm to the investigative activities from a rebuttable presumption to an irrebuttable one.

| 5. | Fifth ground alleging error of law in so far as the General Court denied the existence of an overriding public interest.
  The General Court erred in law by holding that there was no overriding public interest that can prevail against the exceptions in Article 4(2) of Regulation No 1049/2001 without taking into account the arguments put forward by the appellant in that regard. |
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5.

Fifth ground alleging error of law in so far as the General Court denied the existence of an overriding public interest.

The General Court erred in law by holding that there was no overriding public interest that can prevail against the exceptions in Article 4(2) of Regulation No 1049/2001 without taking into account the arguments put forward by the appellant in that regard.

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(1)  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).

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