Opinion of the Advocate General — ECLI:EU:C:2009:520
Date: 2009-09-08
Language of the case: German
Subject matter: State aids;Competition;Provisions governing the Institutions;Access to documents;Procedural provisions
Procedure: Action for annulment;Action for annulment - unfounded;Appeal - successful
Origin: Germany;Finland;Sweden

Summary of the Judgment European Communities – Institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents (Art. 255 EC; European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent; Council Regulation No 659/1999, Art. 20) In order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to fall within an activity mentioned in Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. The institution concerned must also supply explanations as to how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article. However, the Court has acknowledged that it is, in principle, open to the Community institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. It is, in principle, open to the Commission to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. As regards procedures for reviewing State aid, such general presumptions may arise from Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC] and from the case-law concerning the right to consult documents on the Commission’s administrative file. Regulation No 659/1999, and, in particular, Article 20 thereof, does not lay down any right of access to documents in the Commission’s administrative file for interested parties, with the exception of the Member State which granted the aid. If those interested parties were able to obtain access, on the basis of Regulation No 1049/2001, to the documents in the Commission’s administrative file, the system for the review of State aid would be called into question. Thus, for the purposes of interpreting the exception laid down in Article 4(2), third indent, of Regulation No 1049/2001, account should be taken of the fact that interested parties other than the Member State concerned in the procedures for reviewing State aid do not have the right to consult the documents in the Commission’s administrative file, and, therefore, the existence of a general presumption should be acknowledged that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities. That general presumption does not exclude the right of those interested parties to demonstrate that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001. (see paras 53-56, 58, 61-62)