Judgment — ECLI:EU:T:2008:19
Date: 2008-01-30
Language of the case: English
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Access to documents
Concepts: General
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Belgium

summary of the contract price broken down by works item. Therefore, inasmuch as the ‘specific cost components related to the project’ must be understood to mean, in particular, such a breakdown of the contract price, the decision is vitiated by a clear contradiction since, on the one hand, it rejects the request for full access to the main contract on the ground that the contract contains information on the specific cost components related to the project and, on the other, it rules out the possibility of partial access on the ground that that information appears in the application for financial assistance that was sent to the applicant. 103 In that respect, it must be noted that, when called upon by the Court at the hearing to specify the passages of the contract which relate to the contracting parties’ commercial interests, within the meaning of Regulation No 1049/2001, not only did the Commission not claim that the whole contract was covered by the protection required to be given to the contracting parties’ commercial interests but moreover it included in the various matters which it regarded as being confidential the prices stated in the contract and the whole of appendix 7, which are actually included in the application for financial assistance which the Commission sent to the applicant. On being questioned by the Court in that regard, the Commission merely maintained that the main contract contains clauses relating to the detailed arrangements for determining costs and for the reduction of certain costs, and that it is not only the amounts in question which are relevant, but also the whole of the system set up in respect of those amounts. 104 Therefore, neither the contested decision nor the contradictory and imprecise explanations provided by the Commission during the proceedings enable the ‘specific cost components related to the project’ – the disclosure of which was considered by the Commission to be capable of undermining the commercial interests of the contracting parties – to be specifically identified with the requisite precision. 105 It follows from all the foregoing that it cannot be concluded from the reasons given in the contested decision that the disclosure of the main contract would have specifically and actually undermined the contracting parties’ commercial interests. Since it is not for the Court to substitute its assessment for that of the Commission, the contested decision must be annulled in so far as it refuses access, even partially, to the main contract. 2. Access to the invoices and final report First plea in law, alleging infringement of Article 4(2), third indent, and Article 1(a) of Regulation No 1049/2001, and of Annex V to Decision E (96) 1356 Arguments of the parties 106 The applicant claims that the Commission infringed Article 4(2) of Regulation No 1049/2001 and committed a manifest error of assessment of the facts in so far as it wrongly took the view that the audit relating to the contract at issue was one that was covered by the exceptions referred to in Regulation No 1049/2001. The Commission also infringed the principle of giving the widest possible access to documents held by the Commission, and Annex V to Decision E (96) 1356. 107 The applicant observes that the Secretary General did not respond in the contested decision to the questions which the applicant had raised in respect of the audit. He submits that the external experts carrying out the audit are not financial auditors and that, since he has been denied information concerning the purpose and duration of the audit, he considers the audit to be a non-specific audit that is not covered by Article 4(2) of Regulation No 1049/2001. 108 He claims that, in respect of the inspections, investigations and audits mentioned in Article 4(2) of Regulation No 1049/2001, the European Anti-Fraud Office (OLAF) should also have cooperated in the process. In the present case, the applicant was informed that OLAF had not decided to open an investigation. The College of Commissioners had not taken a decision to open an investigation either. 109 He submits that it would be contrary to the purpose of Regulation No 1049/2001 if, in the framework of an audit or investigation carried out at Directorate or Directorate-General level, the Commission had the unrestricted right to refuse public access to documents without a decision from the responsible Commissioner or the College of Commissioners. 110 Furthermore, Annex V to Decision E (96) 1356 clearly provides that the Member State concerned is required to ensure open and easy access to relevant information requested by the public. The applicant takes the view that the invoices and the report on the completion of the airport constitute relevant information for the purposes of Annex V. Consequently, by refusing to grant access to those documents, the Commission infringed Decision E (96) 1356. 111 The applicant reiterates that the Commission did not provide information about the purpose of the audit and its approxiamte duration. Consequently, he claims that it is wrongly invoking Article 4(2) of Regulation No 1049/2001 solely in order not to authorise access to the documents requested. 112 The Commission considers those complaints to be unfounded. Findings of the Court 113 First of all, the applicant submits, in essence, that the audit commissioned by the Regional Policy DG and carried out by external experts is not covered by Article 4(2), third indent, of Regulation No 1049/2001 on the grounds that it was not approved by the College of Commissioners and that OLAF decided not to open an investigation. 114 According to Article 4(2), third indent, of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure. 115 Regulation No 1049/2001 does not therefore lay down any formal or procedural requirement for audits whose protection may justify a refusal of access. In particular, the applicability of the exception provided for in Article 4(2), third indent, of the regulation does not depend on whether the College of Commissioners has approved the audit in question, whether OLAF has decided to open an investigation, or whether the audit is carried out by external experts. 116 Furthermore, according to Article 12(4) of Regulation No 1164/94, without prejudice to checks carried out by Member States in accordance with national laws, regulations and administrative provisions and to the provisions of Article 246 EC or to any inspection arranged on the basis of Article 279(c) EC, the Commission may, through its officials or agents, carry out on-the-spot checks, including sample checks, in respect of projects financed by the Cohesion Fund, and may examine the control arrangements and measures established by the national authorities, which are to inform it of measures taken to that end. It follows that the Commission is empowered to carry out financial checks in respect of projects financed by the Cohesion Fund without being under a prior obligation to obtain a formal decision by OLAF. 117 Second, as regards the applicant’s assertion that, by refusing to grant access to those documents, the Commission infringed Annex V to Decision E (96) 1356, which provides that the Member State concerned is required to ensure open and easy access to relevant information requested by the public, it is sufficient to note that Decision E (96) 1356 is addressed to the beneficiary Member State and does not impose any obligation on the Commission as regards informing the public about the co-financed project. 118 Third, and finally, as regards the applicant’s assertion that the Commission did not provide him with sufficient information about the purpose and duration of the audit, it must be observed that, in his letter of 5 February 2004 to the applicant and produced by the applicant as evidence, the Director-General of the Regional Policy DG stated that the Directorate-General had decided in June 2003 to carry out a supplementary audit of the project in order to ‘deepen’ the examination undertaken on the occasion of a previous audit mission which lasted from 4 to 8 March 2002. He went on to state that the Regional Policy DG was seeking, in this way, to respond to certain points raised by members of the European Parliament, by European citizens and in press articles. Moreover, in the reply of 29 April 2004 to the applicant’s request for access of 5 April 2004, the Commission stated, in conclusion, that he would be informed of the conclusions of the audit when these were available. It follows that the Commission cannot be regarded as having failed to provide the applicant with any information about the audit being carried out. 119 In any event, it must be noted that, even on the assumption that the Commission did not provide information about the purpose and duration of the audit, that cannot in itself affect the legality of the contested decision. In the context of a decision refusing access to a document on the basis of Regulation No 1049/2001, the Commission is required to set out the reasons justifying the application to the particular case of one of the exceptions to the right of access provided for by the Regulation, but is nevertheless not required to provide more information than is necessary in order for the person requesting access to understand the reasons for its decision and for the Court to review the legality of that decision. It must be held, however, that the contested decision satisfies those requirements. 120 As regards, in particular, the alleged lack of information about the purpose and duration of the audit, there is no dispute about the fact that an audit was underway at the date of the contested decision and that it concerned the project in particular. Nor, moreover, does the applicant allege that the Commission infringed Article 4(7) of Regulation No 1049/2001, according to which the exceptions as laid down in Article 4(1) to (3) only apply for the period during which protection is justified on the basis of the content of the document. 121 It follows from the foregoing that the applicant’s claim that the absence of that information shows that the Commission wrongly invokes the existence of an ongoing audit solely in order to justify its refusal of access has no valid legal or factual basis and must therefore be rejected as being purely speculative. 122 It follows from the foregoing that the first plea in law must be rejected as unfounded. Second plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001 Arguments of the parties 123 The applicant submits that the Commission infringed Article 4(6) of Regulation No 1049/2001 by failing to assess the purpose of the audit and to decide to grant partial access to the parts of the final report which identify the entity that submitted the report to the Commission, the company responsible for properly executing the construction of the airport, the defects liability certificates issued by the main contractor to the subcontractors, and other relevant information. As far as the invoices are concerned, the Commission could have allowed partial access by communicating to the applicant the names of the companies which issued the invoices to Athens International Airport and a brief description of the works carried out. The refusal to disclose the abovementioned parts of the final report and the list of invoices held by the Commission infringes Article 4(6) since that information does not constitute parts of the requested document which are covered by any of the exceptions referred to in Article 4 of Regulation No 1049/2001. 124 The applicant observes that he was expecting the Commission to indicate at least the name of the entity which submitted the final report to it, the identity of the entity responsible for properly executing the construction of the airport and the names of the companies which made out the invoices to Athens International Airport. By invoking the fact that its audit was ongoing, the Commission precluded any possibility of the applicant ever having access to the documents. In his view, the Commission could have completed inspection of the invoices within a few weeks. In view of the time that has passed, he believes the Commission to be on the point of trying to hide the fact that invoice(s) were made out by Hochtief Hellas SA, as he explains in his complaint of 27 November 2003. The applicant requests that the Commission state which are the invoices to Athens International Airport that were drawn up by Hochtief Hellas between 26 July 2000 and 31 December 2001. 125 The Commission contends that there is no part of the final report to which the exception relating to the existence of an audit is not pertinent, and that the nature of the list of invoices and the invoices themselves preclude partial disclosure while an audit is underway. Findings of the Court 126 The applicant claims, in essence, that the Commission infringed Article 4(6) of Regulation No 1049/2001 by refusing to grant partial access to the final report and to the invoices. 127 Under Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released. 128 It must be borne in mind that, according to the contested decision, access to the final report was refused on the ground that it was a key element of the audit being carried out. The final report could not be disclosed until completion of that audit, to avoid interference with the investigation and with the exchange of views between the Commission and the Greek authorities. Furthermore, since all parts of the final report were interrelated and no section of the report could be disclosed without affecting the audit, partial access to that document was not possible. 129 The Commission has stated that, when the contested decision was adopted, the Regional Policy DG had carried out an audit on the basis of Article 12(4) of Regulation No 1164/94 in which, inter alia, the final report and the invoices to which the applicant requests access were examined. That too had been brought to the applicant’s attention in the letter of 5 February 2004 from the Director-General of the Regional Policy DG, as described in paragraph 118 above. 130 The applicant does not dispute that statement but maintains that partial access should have been granted to those parts of the final report which would not undermine the audit, namely those concerning the entity which submitted the final report to the Commission, the company responsible for properly executing the construction of the airport, the defects liability certificates issued by the main contractor to the subcontractors, and other relevant information. 131 In that respect, it must be noted that the final report to which the applicant seeks access is a document relating to the completion of the project, which was submitted to the Commission for the purpose of closing the financial assistance from the Cohesion Fund. 132 As the Commission has correctly pointed out, that document therefore constitutes an essential element of the audit which was underway in respect of the Cohesion Fund’s financing of the project, the disclosure of which, even partial, might have damaged the Commission’s investigation and its discussions with the Greek authorities responsible for the project. 133 Similarly, the disclosure of information which the applicant believes should have been subject to partial access entails a reasonably foreseeable likelihood that the Commission or the auditors would be subject to external pressure, with the result that the Commission was entitled to take the view, without committing a manifest error of assessment, that access to the final report as a whole should not be granted to the applicant as long as the audit was ongoing. 134 It is relevant, in that regard, to note that the Commission indicated in its letter of 29 April 2004 that the applicant would be informed of the conclusions of the audit when these were available. It follows that the Commission cannot be criticised for having infringed the principle of proportionality; on the contrary, its attitude demonstrates a willingness to protect the audit only in so far as it was still ongoing. 135 As to the list of invoices and the sample invoices drawn up by the Hochtief consortium and Hochtief Hellas, which the Commission obtained during the audit carried out by the Regional Policy DG, their disclosure must be regarded similarly as entailing a risk of the Commission or its auditors being subject to external pressure to the detriment of their ongoing activities. Furthermore, as the Commission has essentially pointed out, those documents, which contain only a limited amount of similar information, do not, by their nature, lend themselves to partial access. 136 It follows from the foregoing that the Commission did not infringe Article 4(6) of Regulation No 1049/2001 by refusing access to the final report or to the invoices. The second plea in law must therefore be rejected. 3. Access to the costs of the construction items Arguments of the parties 137 In a single plea alleging an error of law, a manifest error of assessment and infringement of Articles 7 and 8 of Regulation No 1049/2001, the applicant claims that the Commission committed an error of law and a manifest error of assessment in so far as it took the view, wrongly, that the applicant’s request for access to the costs of the construction items did not constitute an application for access to documents under Regulation No 1049/2001, and that it infringed Articles 7 and 8 of that regulation. 138 The applicant observes that, in his initial request for access to documents, he stated clearly that, in accordance with Article 6 of Regulation No 1049/2001, he was applying for access to the document on the presentation of the work items for the amount of construction costs of EUR 1 824 000 000 mentioned by the Commission in its reply to question H‑0059/03 from the Parliament. 139 The applicant states that, in his confirmatory application of 26 May 2004, he requested information about the audit mentioned by the Regional Policy DG. According to the applicant, that information would have enabled him to assess whether the audit was indeed one that was covered by the exceptions laid down in Article 4(2), third indent, of Regulation No 1049/2001. Therefore, it was not the applicant’s intention to limit his interest to simple information and withdraw his initial application. Furthermore, he did not state in his confirmatory application that he was withdrawing his application in that regard. 140 The Commission was therefore wrong to conclude in the contested decision that the applicant’s request was not an application for access to documents under Regulation No 1049/2001, thereby infringing Articles 7 and 8 of the regulation. 141 In addition, the applicant claims that the fact that the Commission does not possess any document containing the breakdown by construction item of the sum of EUR 1 824 000 000 may constitute a clear case of maladministration. Moreover, in so far as the Commission knew of the European Investment Bank (EIB) loan which, together with the private participation, exceeded the total construction cost of EUR 1 347 664 120, the applicant wonders for what purpose the Commission decided to grant EUR 250 000 000 to Athens International Airport, given that the project also received a grant from the Greek State. 142 Finally, the applicant requests the Court to order the Commission to present the breakdown of the sum of EUR 1 831 000 000 mentioned in the defence and which results from the audit procedure initiated by the Commission and is in its auditors’ possession. 143 The Commission takes the view that that line of argument is unfounded. 144 It states that the project involved approximately 100 construction items, of which the Cohesion Fund co-financed 35. As it was a project partly co-financed by the Cohesion Fund, the Commission was not required to know the detailed final cost of each item of the airport’s construction, but only the final total cost of those 35 parts of the project that were co-financed by the Cohesion Fund. It does not possess any document providing a breakdown by construction item of the amount of EUR 1 824 000 000. The only document in its possession which refers to that figure is a fax from the Greek authorities which was sent when the Commission was drafting the reply to question H‑0059/03 from the Parliament. That document contains a global estimate of the final cost of the airport’s construction, but does not contain a breakdown by construction item. 145 The Commission further submits that, by contrast, appendix 7 to the application for financial assistance from the Cohesion Fund does contain a breakdown of the estimated cost by construction item for the entire project, that is, not only for the 35 items co-financed by the Cohesion Fund. The applicant has a copy of that application, which was sent to him by the Commission. Furthermore, at the end of the audit procedure, the auditors concluded that the cost of the airport was EUR 1 831 000 000, and the applicant was informed of that by the Commission in its letter of 29 April 2004. The breakdown of that figure was known to the auditors and appeared in the audit report. However, that report cannot be disclosed because the audit procedure has not been completed. 146 The Commission concludes that there is no document corresponding to that requested by the applicant when he refers to a list of the cost of construction items amounting in total to EUR 1 824 000 000. Similarly, since no list or breakdown of the cost of construction items amounting in total to EUR 1 824 000 000 appears in the main contract, it is not possible for him to obtain that information through partial access to the main contract. Moreover, in view of the terms in which the applicant requested the costs of the construction items in his letter of 26 May 2004, the Commission correctly took the view in the contested decision that he had requested information about the cost breakdown, rather than access to a document. 147 As regards the applicant’s assertion that the fact that the Commission does not have a document containing a breakdown by construction item of the amount of EUR 1 824 000 000 may constitute maladministration, the Commission recalls, first, the presumption of veracity which attaches to its statement that the document in question does not exist (Sison v Council, cited in paragraph 71 above). It goes on to reject, in any event, the allegation of maladministration. There is no legal provision or administrative guidance requiring the Commission to keep a breakdown of the cost by item of the whole of a construction project where only part of it is co-financed by the Cohesion Fund. Last, even if the Commission were subject to such a requirement, the contested decision could still not be impugned as being unlawful, since the Commission cannot give access to a document which it does not have in its possession. 148 As regards the applicant’s assertion that the financial assistance granted to the project by the Cohesion Fund was questionable in the light of the levels of national funding, private participation and EIB loans, the Commission observes that the purpose of the present proceedings is to examine the legality of the contested decision refusing access to documents. None of those factors has any bearing on that decision; rather, they relate to a decision granting financial assistance from the Cohesion Fund, the legality of which is not at issue here. 149 As regards the applicant’s request that the Court order the Commission to present the breakdown of the costs of the construction items and information about the date of completion of the audit, the Commission notes that it has already dealt with the applicant’s attempt to subvert the subject-matter of the annulment proceedings in respect of the contested decision so as to transform them into an unlimited information-gathering exercise. Moreover, the Commission claims, first, that it has never denied being required to show that the requisite circumstances do exist for Article 4(2), third indent, of Regulation No 1049/2001 to apply. Next, it submits that the contested decision states that an audit of the project was underway – which has not been disputed by the applicant – and that, as a result, some of the documents which he had requested could not be disclosed. That position is perfectly correct in law. According to the Commission, the purpose of an audit is to allow the auditors to establish a full and accurate picture of what has occurred, and confidentiality is inherent in that process. The duration of the audit is therefore not relevant to establishing whether the refusal to grant access to documents is lawful. What is relevant is whether an audit was underway at that time. Similarly, when the Community judicature is called on to review the legality of a refusal to grant access to those documents, the goal of a particular audit is not relevant to determining whether, at the date on which the Commission replied to that request, it was possible to grant access to certain documents forming part of the file being audited. Moreover, the question of the duration of the audit or its purpose cannot be transformed from a request for information into a request to obtain a document. 150 Finally, as regards the applicant’s assertion that the request for a breakdown by construction item constitutes an application for access to documents, not a request for information, the Commission observes that that qualification by the applicant of his request does not mean that the document sought is in the Commission’s possession; that a request for access to a document does not mean that it exists; and that, in the present case, the document in question does not exist. Findings of the Court 151 The applicant claims, in essence, that the Commission infringed Articles 7 and 8 of Regulation No 1049/2001 by treating his request concerning the costs of the construction items amounting in total to EUR 1 824 000 000 as a request for information and not as an application for access to a document. 152 It must be observed that the Commission has maintained, in that respect, that, although it had a fax that was sent by the Greek authorities in connection with the drafting of the reply to question H‑0059/03 from the Parliament, which refers to a total amount of EUR 1 824 000 000, the Commission did not have any document containing a breakdown of that amount. 153 In that respect, it is necessary to bear in mind the scope of Regulation No 1049/2001 which, according to Article 2(3) of the regulation, applies only to ‘documents held by an institution, that is to say, documents drawn up or received by it and in its possession’. 154 Furthermore, according to the case-law, the concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual (see, by analogy, the order in Case T‑106/99 Meyer v Commission [1999] ECR II‑3273, paragraphs 35 and 36). It is true that it is apparent from the judgment in Council v Hautala, cited in paragraph 75 above, that Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43), which preceded Regulation No 1049/2001 covered not only documents held by the institutions as such but also information contained within those documents (paragraph 23 of the judgment). However, access to information – within the meaning of that judgment – may be granted only if that information is contained within documents, which presupposes that such documents exist (Case T‑264/04 WWF European Policy Programme v Council [2007] ECR II‑0000, paragraph 76). 155 Furthermore, it has consistently been held that a presumption of legality attaches to any statement of the institutions relating to the nonexistence of documents requested. Consequently, a presumption of veracity also attaches to such a statement. That is, however, a simple presumption which the applicant may rebut in any way by relevant and consistent evidence (see Sison v Council, cited in paragraph 71 above, paragraph 29, and the case-law cited). 156 In the present case, the applicant has been unable to refer to any evidence of that nature and has made no mention of even the slightest matter that would put that presumption into doubt. He has merely maintained that, if the Commission does not have a document referring to the breakdown of EUR 1 824 000 000, that would amount to maladministration. However, it must be observed that any failure by the Commission in that regard has no bearing on the presumption of veracity attached to the Commission’s statement that it does not possess a document describing the breakdown of the total amount and, on the contrary, presupposes that the Commission did not in fact have such a document in its possession. 157 In those circumstances, it must be held that the applicant is unable to rebut the presumption of veracity which attaches to the Commission’s statement that it does not have a document containing the breakdown of the amount of EUR 1 824 000 000 and, accordingly, it must be concluded that the Commission was entitled to take the view that the applicant’s request regarding that breakdown could not be interpreted as an application for access to documents, but was a request for information. 158 Finally, as regards the request that the Court order the Commission to present the breakdown of the sum of EUR 1 831 000 000 mentioned in the defence, which results from the audit procedure initiated by the Commission, it must be held that, since the applicant has not made an application to the Commission for access in respect of such a document or in respect of a document containing that information under Regulation No 1049/2001, it is clearly outside the scope of the present proccedings. Furthermore, in the context of its judicial review of the lawfulness of measures, the Community judicature may not issue directions to the Community institutions. Consequently, the applicant’s application must be dismissed as inadmissible. 159 It follows from the foregoing that the plea must be rejected in its entirety. 4. Access to the subcontracts Arguments of the parties 160 In a single plea alleging a manifest lack of good faith on the part of the Commission and infringement of the principle of good administration, the applicant claims that the contested decision demonstrates a manifest lack of good faith on the part of the Commission in that it failed to indicate to him when it would be in possession of the document requested, since the Commission informed him in the contested decision that the subcontracts would be analysed in the framework of a planned audit without explaining to him the proposed timetable or purpose of that audit. In the contested decision, the Commission failed to state whether the planned audit is connected with the audit decided upon by the Regional Policy DG in June 2003 which followed an earlier audit, as mentioned in the note sent to the applicant on 5 February 2004 by the Director-General of the Regional Policy DG. The Secretary General did not provide an indication as to when the results of the analysis of the contracts and subcontracts were expected to be communicated to the European Parliament. The applicant submits that the Commission should have stated whether the analysis of the contracts and subcontracts was in progress, whether the Commission was in possession of the requested documents and when it would examine his request. 161 The Commission maintains that it is not in possession of the subcontracts and that there is nothing in the file to demonstrate any bad faith on its part. Findings of the Court 162 It must be noted, first of all, that the Commission stated in the contested decision that it was not in possession of the subcontracts. It went on to indicate, in respect of the applicant’s argument that that assertion contradicts the letter of 4 July 2003 sent by the Director-General of the Regional Policy DG to three members of the European Parliament, that that letter merely states that an analysis of the contracts and subcontracts would be carried out in the framework of a planned audit. 163 According to the case-law cited in paragraph 155 above, a presumpton of legality attaches to any statement of the institutions relating to the nonexistence of documents requested. Consequently, a presumption of veracity also attaches to such a statement. That is, however, a simple presumption which the applicant may rebut in any way by relevant and consistent evidence. 164 However, it must be held that the applicant has not adduced such relevant and consistent evidence. 165 It must be noted, first, that, contrary to the applicant’s allegations, the Director-General of the Regional Policy DG does not claim in the letter of 4 July 2003 to be in possession of the subcontracts, but merely announces that he has decided to launch an analysis of the contracts and subcontracts for the construction of Athens airport. Second, in response to the written question put by the Court, the Commission explained that, following the letter of 4 July 2003, an audit procedure was launched in respect of the project, the objectives of which were achieved without the subcontracts having been made available to the auditors. The Commission thus explained that, even without the subcontracts at their disposal, the auditors concluded that the evaluation of the construction costs was carried out correctly by means of the analysis of the actual costs incurred and variations of the original orders. 166 It follows that, in the absence of relevant and consistent evidence to the contrary, the Commission’s assertion that it was not in possession of the subcontracts must be regarded as being accurate. 167 Accordingly, the plea must be rejected as unfounded. Costs 168 Under Article 87(3) of the Rules of Procedure, the Court of First Instance may order that the costs be shared or that the parties bear their own costs if each party succeeds on some and fails on other heads of claim. As the action has been successful in part, the Court will make an equitable assessment of the case in holding that the applicant is to bear one half of his own costs, and that the Commission is to bear its own costs and pay one half of the costs incurred by the applicant. On those grounds, THE COURT OF FIRST INSTANCE hereby: 1. Annuls the Commission’s decision of 12 July 2004 in so far as it concerns the refusal of access to the contract of 14 June 1996 signed between Athens International Airport SA and a consortium of companies led by Hochtief AG; 2. Dismisses the remainder of the action; 3. Orders Mr Ioannis Terezakis to bear one half of his own costs; 4. Orders the Commission to bear its own costs and pay one half of the costs incurred by Mr Terezakis. Jaeger Azizi Cremona Delivered in open court in Luxembourg on 30 January 2008. E. Coulon M. Jaeger Table of contents Legal context Facts Procedure Forms of order sought by the parties Law 1. Access to the main contract First plea in law, alleging, first, an error of law and manifest error of assessment in the definition of the status of the author of the document, and, second, an error of law in the application of Article 4(4) of Regulation No 1049/2001 and of Article 5(3) and (4) of Decision 2001/937 First part: error of law and manifest error of assessement in the definition of the status of the author of the document – Arguments of the parties – Findings of the Court Second part: error of law in the application of Article 4(4) of Regulation No 1049/2001 and of Article 5(3) and (4) of Decision 2001/937 – Arguments of the parties – Findings of the Court Second plea in law, alleging infringement of Article 1(a) and Article 4(2) and (6) of Regulation No 1049/2001, and of the principle of proportionality Arguments of the parties Findings of the Court 2. Access to the invoices and final report First plea in law, alleging infringement of Article 4(2), third indent, and Article 1(a) of Regulation No 1049/2001, and of Annex V to Decision E (96) 1356 Arguments of the parties Findings of the Court Second plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001 Arguments of the parties Findings of the Court 3. Access to the costs of the construction items Arguments of the parties Findings of the Court 4. Access to the subcontracts Arguments of the parties Findings of the Court Costs * Language of the case: English.