Information;Judgment — ECLI:EU:T:2020:235
Date: 2020-05-28
Language of the case: English
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - decision unnecessary

summary of the findings submitted by the authorising Member States, shall convene a meeting of the COCOM in order to examine the alleged breach and, if applicable, to discuss any appropriate measures aimed at ensuring compliance, in line with the objectives referred to in Article 1(2) of that decision. Paragraph 5 provides that, after the meeting of the COCOM, the authorising Member State which finds that there is a breach of the common conditions shall take appropriate measures aimed at ensuring compliance with the common conditions, with the exception of withdrawal or suspension of any authorisation or right of use held by that operator. In accordance with paragraph 6, where there are serious or repeated breaches of the common conditions, a Member State which, after having taken the measures referred to in paragraph 5, intends to withdraw the authorisation shall inform the Commission thereof, which shall communicate to all the other Member States the information submitted by that Member State concerning the measures taken by the operator concerned to comply with the common conditions. According to paragraph 7, a COCOM meeting shall be convened with the objective of coordinating any withdrawal of an authorisation in line with the objectives referred to in Article 1(2) of Decision 2011/667. Paragraph 8 states that following that meeting Member States may adopt appropriate decisions with a view to withdrawing the authorisation granted. 55 It is apparent from the contested decision that, following the allegations of certain Member States that authorised operators did not comply with certain common conditions, the COCOM examined the situation with the assistance of MSS WG, after having authorised the operators in question to submit their views and to provide information to the Commission and the Member States. In that context, at the COCOM meeting held on 11 July 2013, the document entitled ‘Coordinated Approach of Measures and Road-Map to Remedy Breaches to Common Conditions [laid down in] Article 7(2) of MSS Decision No 626/2008/EC’ and the annex thereto, namely the Roadmap, were drawn up by national experts from several Member States. 56 According to the third indent of Article 4(2) 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. 57 The Commission justified the application of the third indent of Article 4(2) of Regulation No 1049/2001 to the present case by stating in the contested decision that ‘disclosing the Roadmap of Measures at a moment when enforcement procedure is ongoing with the intrinsically linked process of collecting, sharing and analysing information as regards the alleged breach would undermine the purpose of ongoing investigations at Member State level and the consistent application of national enforcement rules across the European Union’. 58 As stated in the contested decision, the purpose of the Roadmap is, according to its title, to present measures to ensure that authorised operators comply with common conditions, including new intermediate steps and corresponding time limits. 59 It is also apparent from the contested decision, and is not disputed by the applicant, that the Roadmap is a ‘non-binding’ discussion document, drawn up by national experts from several Member States, which is an expression of the coordination efforts of those States to ensure implementation of the common conditions. The measures and deadlines mentioned in the Roadmap do not necessarily correspond to those decided by the various NRAs in the context of the application of their national law. It is the NRAs of the various Member States which remain responsible for the interpretation and implementation of the common conditions. 60 The Commission infers from those considerations that, since it is possible for NRAs to decide on different dates or measures, ‘the disclosure of the Roadmap of Measures would therefore be misleading by risking to be seen as the measures that must be followed by the authorised operators in all Member States. This would cause confusion in the public and might be used by Viasat, or other competitors, against NRAs at a point in time where these are investigating whether the authorised operators are compliant with the national measures and deadlines, to create external pressure on NRAs and interferences with their enforcement activities. These external pressures and interferences would undermine the serenity of investigations at national level and compromise their efficiency’. 61 According to the contested decision, the Roadmap reflects more particularly the coordination efforts of certain Member States, with the assistance of the COCOM, in the context of phase I of the implementation of the licences or authorisations granted to authorised operators pursuant to Article 1(2) of Decision 2011/667. The discussions within the COCOM and MSS WG, which led to the preparation of the Roadmap by several national experts, were intended to facilitate the common understanding of the facts supporting any alleged failure to comply with the common conditions and their seriousness in order to allow a common approach on possible measures to remedy those infringements. According to the same decision, it goes without saying that it forms part of the task of the COCOM and MSS WG to collect, share and analyse information on the alleged infringements, in so far as the collection and analysis, on the one hand, and the efforts towards a coordinated approach on appropriate enforcement measures, on the other, are intrinsically linked, as is also apparent from Article 1(2) of Decision 2011/667. 62 It is also apparent from the contested decision that, according to the Commission, ‘the disclosure of the Roadmap of Measures would therefore jeopardise a consistent enforcement of the common conditions as provided in [Decision No 2011/667 ]: as a consequence of a premature disclosure of the Roadmap of Measures, Member States would obtain less information from the authorised operators and would also restrict their sharing and analysing of information as regards the alleged breach. Therefore, the climate of mutual trust among Member States (and with the Commission) which materialised in the drafting of the Roadmap of Measures as a result of the coordination efforts, would be undermined, as would be the enforcement process. The NRAs’ capacity to take an informed, coordinated and appropriate decision in the context of ongoing enforcements would be affected. Furthermore, it would also have a negative effect on the extent to which the Commission can promote a coordinated approach on enforcement among Member States’. 63 In the contested decision, the Commission adds that ‘so far, a number of national authorities have followed up with enforcement action under phase I of enforcement of the licences or authorisations granted to the authorised operators, notably Germany, Finland, Sweden, Spain and the United Kingdom. Those Member States may need to act further under phase II of enforcement, including the possibility of imposing sanctions or even withdrawing licences. Hence, such gathering, sharing and analysing of information in the framework of the [COCOM] and [the MSS WG] as regards the alleged breach of the common conditions is for the purpose of enforcement and such work consists of investigations in the sense of Article 4(2), third indent, of Regulation 1049/2001’. 64 In the light of that statement of reasons, the applicant submits, first, that the purpose of the exception to the right of access laid down in the third indent of Article 4(2) of Regulation No 1049/2001 is to protect the purpose of investigations conducted by the EU institutions whereas the procedure which led to the adoption of the Roadmap does not fall within the scope of such an investigation. 65 In that regard, it must be noted at the outset that the concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraph 45). 66 The Court was thus led to rule that, without there being any need to identify an exhaustive definition of ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, a structured and formalised Commission procedure that had the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties had to be considered to be an investigation. That procedure need not necessarily be aimed at detecting or pursuing an offence or irregularity, so that the concept of ‘investigation’ could also cover Commission activity intended to establish facts in order to assess a given situation (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraphs 46 and 47). 67 Similarly, it has been held that, in order for a procedure to be classified as an ‘investigation’, it was not necessary for the Commission’s position in performing its functions to have taken the form of a decision within the meaning of the fourth paragraph of Article 288 TFEU. Such a position may take the form, inter alia, of a report or a recommendation (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraph 48). 68 It follows from the considerations set out in paragraphs 44 to 55 above that the Roadmap was drawn up in the context of a structured and formalised procedure, established by Article 3 of Decision 2011/667, which is intended in particular to collect and analyse information on possible breaches of the common conditions and their seriousness, for the purpose of discussing, in accordance with the objectives pursued by Article 1(2) of Decision 2011/667, the corrective measures to be adopted for the failure concerned, in particular in the form of a Roadmap with intermediate milestones and corresponding deadlines as set out in particular in recital 11 of that decision. Furthermore, as has been pointed out, inter alia, in paragraph 50 above, the monitoring of compliance with the common conditions and enforcement measures, including the final assessment of any breach of the common conditions attached to the authorisation, should be implemented at national level. Finally, it is apparent from the contested decision that a number of Member States have adopted enforcement measures in the context of phase I and are conducting investigations at national level in order to assess compliance with the common conditions and national enforcement measures and to adopt, if necessary, other appropriate measures or even, under phase II, to decide on the withdrawal of rights of use in accordance with the procedure laid down in Article 3 of Decision 2011/667. 69 The objection raised in this context by the applicant, that the application of the third indent of Article 4(2) of Regulation No 1049/2001 is precluded in the present case in so far as the exception at issue is invoked in order to protect the purpose of ‘investigations carried out at national level under the auspices of the COCOM and the MSS WG’ and not of an investigation by the Commission, must be rejected. 70 It is apparent from the case-law that the fact that an investigation is, as the case may be, conducted by public authorities of Member States and not by an EU institution does not preclude the inclusion of a document within the scope of the third indent of Article 4(2) of Regulation No 1049/2001, which is also intended to protect the interests specific to a Member State, such as the protection of inspections, investigations and audits pursued by the authorities of that Member State (see, to that effect, judgment of 12 May 2015, Unión de Almacenistas de Hierros de Espana v Commission, T‑623/13, EU:T:2015:268, paragraph 44 and the case-law cited). That is all the more so where, as in the present case, the Roadmap forms part of a coordinating procedure relating to obligations laid down by EU legislation, established by the European Union and whose purpose is the exchange and analysis of information and the coordination, at EU level, of national investigations and enforcement measures relating to possible breaches of those obligations. 71 In addition, as is apparent from the case-law cited in paragraph 67 above and as is moreover acknowledged by the parties, the alleged non-binding nature of the Roadmap is also not an obstacle to the application of the exception laid down in the third indent of Article 4(2) of that regulation. 72 Consequently, the Roadmap, which was drawn up in the context of phase I of the procedure established in Article 3 of Decision 2011/667 adopted pursuant to Article 9(3) of the MSS Decision, forms part of an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. 73 The applicant claims, secondly, that, in any event, the disclosure of the Roadmap in no way jeopardises the completion of any investigation carried out or envisaged at national level, nor does the contested decision explain how such disclosure could specifically and actually undermine the interest protected by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001. 74 It is settled case-law that the exception provided for by that provision is not designed to protect investigations as such, but the purpose of those investigations (see judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 83 and the case-law cited), namely, in the present case, as can be seen, inter alia, from paragraphs 61 and 62 above, the coordination of Member States’ efforts and the consistent enforcement of the common conditions. 75 According to that case-law, the third indent of Article 4(2) of Regulation No 1049/2001 must be interpreted in such a way that this provision applies only if disclosure of the documents in question may endanger the completion of the inspections, investigations and audits referred to (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 86). 76 Admittedly, the various acts of investigation or inspection may remain covered by the exception based on the protection of inspections, investigations and audits as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought has been completed (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 87). 77 However, to accept that the various documents relating to inspections, investigations or audits are covered by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 until the follow-up action to be taken has been decided would make access to such documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 88). 78 Such an approach would be contrary to the objective of guaranteeing the widest possible public access to documents emanating from the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 89). 79 It is also apparent from the case-law that the fact that the institution or body in question may have to resume its investigative activities may, where appropriate, make it possible to consider that the investigation in question is not definitively closed when the decision on access to a document is adopted (see, to that effect, judgments of 7 October 2014, Schenker v Commission, T‑534/11, EU:T:2014:854, paragraph 72, and of 7 September 2017, AlzChem v Commission, T‑451/15, not published, EU:T:2017:588, paragraphs 41 and 42 and the case-law cited). 80 The applicant’s argument that the Commission cannot claim in the present case that there is a need to protect an enforcement or investigation procedure within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, when the conclusion of the Roadmap appears to have been agreed as a common solution to the breaches found following various national enforcement procedures initiated by the NRAs and which have therefore been closed, must be rejected, since it has no factual basis. 81 As is apparent from paragraph 63 above, the Roadmap was adopted in the context of coordinated national investigation and enforcement measures taken under phase I of the enforcement of the licences or authorisations granted to authorised operators, which were still in progress in the various Member States at the time the contested decision was adopted. Moreover, those States would, where appropriate, be required to adopt other measures, including, following the start of phase II of enforcement, the withdrawal of rights of use in the event of persistence or repetition, in particular, of the breaches that gave rise to the Roadmap. 82 It follows that the national enforcement procedures relating to the alleged infringements which gave rise to the Roadmap were not closed by the adoption of that roadmap, although certain milestones had not been reached by the authorised operators at the time of the adoption of the contested decision, with the result that the various subsequent measures of investigation were liable to fall within the scope of the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001, in accordance with the case-law referred to in paragraphs 74 to 79 above. The argument in support of disclosure of the Roadmap, based on the time which elapsed between its adoption in 2013, which ‘closed’ the procedure, and the request for access in 2017, must therefore also be rejected. 83 With regard to the applicant’s complaint that the Commission has not shown how disclosure of the Roadmap could, in accordance with the requirements of the case-law referred to in paragraph 41 above, specifically and actually undermine the interest protected by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, this also cannot be upheld. 84 In the first place, it is apparent from paragraphs 59 and 60 above that, according to the contested decision, premature disclosure of the Roadmap would risk jeopardising the completion of the investigations at national level because of the NRAs’ ability to adopt deadlines and measures different from those agreed in the Roadmap, having regard to the way in which it is drawn up and its effects. Such premature disclosure could lead to confusion in the public as to whether or not to follow the Roadmap and that could thereby be used by the competitors of authorised operators to exert pressure on NRAs and to interfere with their enforcement activities, which would compromise the serenity and effectiveness of ongoing investigations at national level. 85 In that regard, it should be noted at the outset that it has already been held that the interest protected by that exception is the interest in allowing investigations to be conducted independently and free of pressures, whether these come from the body being audited, from another body or from the general public (see, to that effect, judgment of 12 May 2015, Technion and Technion Research & Development Foundation v Commission, T‑480/11, EU:T:2015:272, paragraph 63). 86 As was pointed out in the contested decision, Article 13 of the Rules of Procedure of the COCOM provides that ‘the committee’s discussions shall be kept confidential’ and Article 5 of the terms of reference of the MSS WG states that ‘any information received in the context of this Group will be considered as confidential and may not be disclosed subject to any indications provided by the Chair’. Although, in accordance with Article 9(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 291), the principles and conditions on public access to documents and the rules on data protection applicable to the Commission also apply to the committees, and the rights of access to the documents are guaranteed subject to the conditions and within the limits laid down by Regulation No 1049/2001, so that it is within the framework of those exceptions alone that the grounds relied upon in support of the refusal must be examined (judgment of 11 March 2009, Borax Europe v Commission, T‑166/05, not published, EU:T:2009:65, paragraph 41), the fact remains that those rules on confidentiality reflect the importance attached to the confidentiality of information and the committee’s deliberations on alleged breaches by authorised operators of the common conditions with a view to ensuring the smooth and efficient conduct of the various investigation and enforcement procedures under way, including at Member State level. 87 It must be acknowledged that, as the applicant submits, it has not been established that disclosure of the Roadmap would give rise to confusion as to the obligation on the national authorities of the various Member States, in particular the authorities of those which did not take part in drawing up the Roadmap, to follow the measures and deadlines set out therein, even though all the Member States already have access to it under the procedure established by Article 3 of Decision 2011/667. 88 However, contrary to the applicant’s allegations, the premature disclosure of the Roadmap to the public would nevertheless give rise to a real and reasonably foreseeable risk of external pressure being brought to bear on the NRAs by competitors of the authorised operators to the detriment of the smooth conduct of the investigation and enforcement activities in the course of the application of the common conditions, precisely at a time when those authorities were investigating whether the authorised operators were complying with the national measures and deadlines which were set by the various NRAs in the context of the application of their national law and which, as noted in paragraph 59 above, differed, where appropriate, from those covered by the Roadmap, which reflected a coordination effort by a few Member States without necessarily being imposed on the NRAs of the various Member States. 89 In the second place, it is apparent from paragraph 62 above that, according to the contested decision, premature disclosure of the Roadmap could jeopardise the completion of investigations at national level in so far as national authorities would obtain less information from the authorised operators and would limit the sharing and analysis of information with regard to alleged breaches, whereas an adequate and common understanding of the facts and of the seriousness of the alleged breaches is necessary for a coordinated enforcement approach by Member States as well as for effective enforcement. The climate of trust that has been built up between Member States and towards the Commission during the preparation of the Roadmap through coordination efforts would be undermined, as would the enforcement process. Such a climate of trust is necessary for the proper functioning of the enforcement process established by the MSS Decision and Article 3 of Decision 2011/667, under which the COCOM was designated as the appropriate forum for discussions on enforcement in the event of alleged breaches of common conditions and the Member States must notify specific information relating to their conclusions on the alleged infringements and the views expressed by authorised operators. 90 It should be observed in that regard that the proposed measures and the timetable for their implementation, set out in the Roadmap, are intrinsically linked to compliance with the common conditions binding the authorised operators, as the Commission rightly pointed out in the contested decision. It is therefore easy to infer from the actual content of the Roadmap the nature of the alleged breaches and their temporal aspect. 91 In those circumstances, it must be observed that, if the information contained in the Roadmap were made public, it would be likely to be exploited by the competitors of the authorised operators with a view to seeking a finding that the common conditions have not been complied with and the adoption of sanctions at a moment when the national investigation and enforcement procedures established for that purpose are still ongoing. Furthermore, the measures and time limits set out in the Roadmap necessarily reflect, as is pointed out later in the contested decision, technical and business development related aspects of the interested parties, the disclosure of which would reveal, inter alia, information about authorised operators’ business models and capabilities to competitors. 92 Furthermore, as the Commission stated in the contested decision, premature disclosure of the information contained in the Roadmap, as a discussion document which did not set out the final findings regarding alleged breaches of the common conditions, when it was for the national authorities to carry out the final assessment of breaches of the common conditions, would risk unduly damaging the reputation of the authorised operators, and also undermine the climate of trust necessary for the smooth functioning of ongoing national investigation and enforcement procedures to ensure consistent enforcement of the common conditions and the success of the Commission’s efforts to promote a coordinated approach to enforcement between Member States. 93 The applicant’s argument that the Commission wrongly found, in the contested decision, that the premature disclosure of the Roadmap could result in those operators adopting a less cooperative attitude towards the NRAs, even if it were well founded, is not, however, capable of calling into question, on its own, the considerations set out in paragraphs 84 to 92 above. 94 Finally, it is irrelevant, for the purpose of determining the obligations arising for the Commission from the application of Regulation No 1049/2001, the fact alleged by the applicant that certain information in the Roadmap was disclosed by the authorised operators themselves or by national authorities, since that institution is required to refuse access to a document on the basis of Regulation No 1049/2001 where the conditions laid down in that regulation are met, even where, as the applicant points out, published information does not correspond to the content of the Roadmap. 95 In those circumstances, it must be held that the examination which the Commission carried out in order to apply the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, as set out in the contested decision, was carried out in a concrete manner. The institution was entitled to consider that the Roadmap fell within the scope of that exception and it was entitled to take the view, at the time of the adoption of the contested decision, that the disclosure of such a document, while national enforcement procedures were ongoing, as well as the closely related process of collection, sharing and analysing the information on the alleged breach, would risk undermining the purpose of ongoing investigations at national level and the application of the national enforcement rules in the European Union in accordance with the enforcement process established by the MSS Decision and Article 3 of Decision 2011/667. 96 Consequently, the first ground must be rejected. The fourth plea in law, alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001 97 The applicant claims, in the first place, that the Commission made no serious effort to identify an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, nor has it produced sufficient reasoning to support its conclusion. The existence of such an overriding interest flows directly from the nature and purpose of the Roadmap and its relationship with the application of the common conditions. The applicant, it is claimed, clearly justified in its confirmatory application for access the reasons for the existence of an overriding public interest in the present case. 98 The applicant claims, in the second place, that it does not need the Roadmap in order to substantiate its arguments in the action for annulment which it brought before the General Court, which is registered as Case T‑245/17, or in the proceedings before the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium). In any event, the particular interest of an applicant in obtaining access to documents and its individual situation can be taken into account where they also relate to an overriding public interest. 99 The applicant claims, in the third place, that the principle of transparency is particularly pressing in the present case. There are, in the present case, specific circumstances justifying the finding of an overriding interest in the disclosure of the Roadmap to the public, which derive from the combination of the objective of the European Union’s MSS harmonisation initiative, the exclusive spectrum use rights obtained by the intervener under very precise conditions and from the intervener’s repeated failure to meet its obligations, which prevented the attainment of important public interest goals, such as the development of MSS in the European Union and ensuring a prompt and correct use of very valuable and scarce spectrum. Given the importance of the MSS initiative using the 2 GHz frequency band, which was also reflected in the relevant preparatory work, the principle of transparency would require that interested parties should be granted the right to know under which conditions the intervener had been given a second chance and should be given the opportunity to question whether this was legal when several national authorities had expressed doubts in that regard, and what direction that initiative would currently take in the European Union. According to the applicant, knowledge on the part of citizens and competitors of the administration’s activities relating to projects promised to the public, in particular where a substantial change in the manner in which they are provided is envisaged, is a guarantee of its proper functioning and in accordance with the overall objective of ensuring an open European administration. 100 The applicant submits, in the fourth place, that Regulation No 1049/2001 does not provide for any exception enabling the Commission to refuse to disclose a document where it considers that transparency has already been sufficiently provided by disclosure of some pieces of information pertaining to the requested document in the context of public consultations, or on the ground that Member States would be a better forum than the Commission in order to ensure transparency. 101 The Commission, supported by the intervener, disputes the applicant’s arguments. 102 As has been noted in paragraph 56 above, the fact that disclosure of a document undermines the protection of the purpose of investigations pursued by the institution in question does not exclude the possibility of demonstrating that there is an overriding public interest in disclosure of that document. 103 It is for the party requesting access to put forward specific circumstances that show that there is an overriding public interest which justifies the disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90). It is for the party alleging an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001 to prove that interest (judgment of 25 September 2014, Spirlea v Commission, T‑306/12, EU:T:2014:816, paragraph 97). 104 In that regard, it is true that the overriding public interest which may justify the disclosure of a document need not necessarily be distinct from the principles which underlie Regulation No 1049/2001 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 92, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 92). 105 However, general considerations cannot be accepted in order to justify access to the documents requested (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 93). 106 In response to the applicant’s request for access to the Roadmap having regard to the existence of an overriding public interest in disclosure consisting of the public right to know, first, what stage the realisation of the project in question has reached and, second, to what extent the intervener has deviated from the conditions laid down in the selection procedure, the contested decision states, first, that transparency was ensured primarily at the level of the Member States in accordance with national law, in so far as the determination of the conditions applicable to authorised MSS operators is a prerogative of the national authorities, including any adjustments thereto. For that reason, public consultations on possible adjustments of the national authorisations of authorised operators issued were organised in several Member States and published on the websites of NRAs. Second, the applicant is a direct competitor of the intervener and the request for access serves above all the applicant’s private interest. Third, the Commission has not identified any overriding public interest justifying disclosure of the requested document, with the result that the interests protected, in particular, by the first indent of Article 4(2) of Regulation No 1049/2001 would prevail. Fourth, that is all the more so since the present case concerns the administrative activity of the institution concerned. 107 In the first place, it follows from the foregoing considerations that, contrary to what the applicant claims, the contested decision satisfies the requirement to state reasons in so far as it sets out the various grounds in support of the refusal to recognise the existence of an overriding public interest justifying the disclosure of the requested document. As regards, more specifically, the complaint that the Commission made no serious effort to identify such an overriding public interest, it should be recalled that, as was pointed out in paragraph 103 above, it is for the applicant claiming the existence of an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001 to demonstrate this by invoking specific circumstances establishing such an interest. The Commission considered that that had not been the case. 108 In the second place, the applicant has failed to demonstrate that, as it claims, the principle of transparency was especially pressing in the present case. Admittedly, the existence of special or private interests in the disclosure of the Roadmap, such as those relating to the pursuit of a legal action (see, to that effect, judgment of 21 September 2016, Secolux v Commission, T‑363/14, EU:T:2016:521, paragraph 73 and the case-law cited), does not preclude the existence of a possible objective and general overriding public interest which, therefore, justifies disclosure (see, to that effect, judgments of 25 October 2013, Beninca v Commission, T‑561/12, not published, EU:T:2013:558, paragraph 58, and of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, not published, EU:T:2015:268, paragraph 90), but the Commission did not err in finding that the existence of such an overriding public interest could not be identified on the basis of the circumstances relied on by the applicant. 109 If, as the applicant claims, there is a certain public interest in the realisation of the project at issue, in that it is intended, inter alia, to enable the dissemination of mobile and high-speed communications in rural and less developed regions of the European Union, to contribute to the development of the internal market and to improve competition and to stimulate effective investment, such general allegations are not sufficient in themselves to justify access to the requested document, to the detriment of the protection of investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. Similarly, the general allegations put forward in that context, in so far as they relate to the interest of the public and of the intervener’s competitors in being informed about the progress of the MSS project and in being in a position to ascertain whether and to what extent the initial terms of award were amended and implemented, cannot provide an appropriate basis for establishing that, in the present case, the principle of transparency was in some sense especially pressing and capable, therefore, of prevailing over the reasons justifying the refusal to disclose the Roadmap (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 157 and 158). Finally, the applicant’s contentions that the control of the administration’s activities by citizens and competitors promotes effective action by the administration, engendering confidence, which is a guarantee of the proper functioning of the democratic system, are general considerations which are not capable of demonstrating that the principle of transparency was in fact of particularly pressing concern in the present case, so as to take precedence over the protection of investigations (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 91 and 93 and the case-law cited). 110 In the third place, the Commission was also right to refer in this context to the case-law according to which the public interest in transparency does not carry the same weight in relation to the administrative activity of the institution concerned, in the context of which the documents requested in the present case fall, as it does in relation to the legislative activity of that institution (see, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 60, and of 25 October 2013, Beninca v Commission, T‑561/12, not published, EU:T:2013:558, paragraph 64). 111 In the fourth place, the existence of an overriding public interest in disclosure of the requested document also does not follow from consideration of Article 3(3) of the MSS Decision, since, as the Commission and the intervener have rightly pointed out, that provision merely recalls the application of Regulation No 1049/2001 to the request for access to the document in question and cannot be interpreted as altering the scope of Regulation No 1049/2001 in such a way as to require greater transparency in the context of the call for tenders relating to pan-European systems providing MSS. 112 In the light of the foregoing considerations, and without it being necessary to rule on the merits of the ground set out in the contested decision that some public transparency was ensured at the level of the Member States, it must be concluded that the applicant has not demonstrated the existence of an overriding public interest justifying disclosure of the requested document under the last clause of Article 4(2) of Regulation No 1049/2001, so that the fourth plea must be rejected. The fifth plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001 113 The applicant claims in the alternative that the Commission infringed Article 4(6) of Regulation No 1049/2001 by refusing to grant at least partial access to the Roadmap. 114 First, the wording of the contested decision suggests that the principle of access to documents applies only to documents as such and not to the information contained in them, which is contrary to the case-law of the Court of Justice and the General Court. 115 Secondly, it is apparent from the wording and brevity of the relevant section of the contested decision that the Commission did not seriously consider the possibility of granting partial access to the information contained in the Roadmap, thereby ignoring its obligation to conduct a specific, individual examination of each document in a scrupulous manner in order to give full effect to the fundamental right of access to documents and to comply with the principle of proportionality. In addition, the Commission did not state its reasons for not making inaccessible only those parts of the Roadmap covered by the exceptions invoked, in view of the nature and content of the information in question, nor did it explain why the remaining parts of the Roadmap would be entirely deprived of their content and meaning in the event of redaction, or allege that such an operation would have entailed an excessive burden on its part. 116 According to the applicant, since the Roadmap is principally a document aiming to lay down new deadlines and milestones which authorised operators must meet in order to comply with their obligation under the regulatory framework on the use of the 2 GHz frequency band, it is, in any event, highly doubtful that all the information contained in the Roadmap would be covered by the exceptions invoked by the Commission. 117 Thirdly, Article 3(3) of the MSS Decision, because of its express reference to Regulation No 1049/2001, militates, at the very least, in favour of partial access to a document such as the Roadmap in which a tenderer appears to have made new commitments, replacing or supplementing those which it had made at the tender stage, and in which the Member States appear to have de facto extended certain of the time limits laid down in the MSS Decision for completion of the milestones and operability of the promised MSS. 118 The Commission, supported by the applicant, contests the applicant’s arguments. 119 It is apparent from the contested decision that the Commission considered the possibility of granting partial access to the Roadmap and that, to that end, it carried out a specific examination of the document at issue and concluded that the document in its entirety was covered by the exceptions relating to the protection of the purpose of investigations, the intervener’s commercial interests and court proceedings within the meaning of Article 4(2) of Regulation No 1049/2001, and that there was no overriding public interest justifying the disclosure of the information contained in the Roadmap. 120 As is apparent from paragraphs 56 to 95 and 102 to 112 above, the Commission was entitled to refuse full access to the Roadmap by relying solely on the protection of the purpose of investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. 121 Moreover, in so far as, in view of the content of the information contained in the Roadmap, it formed a homogeneous and non-dissociable content, the Commission was also correct in arguing that, in the circumstances of the present case, the exception relating to the protection of the purposes of investigations justified the rejection of any access, even partial, to the information contained in the Roadmap, failing which the proper conduct of the investigation procedures under way would be jeopardised, for the reasons set out in paragraphs 80 to 95 above. 122 It should be added in that regard that, as pointed out in paragraph 111 above, Article 3(3) of the MSS Decision cannot be interpreted as meaning that, as the applicant claims, it extends the scope of disclosure beyond the precise limits laid down in Regulation No 1049/2001 and entails, in particular, an enhanced obligation to examine the possibility of partial access to the Roadmap, in so far as that provision merely reiterates the application of that regulation without altering its scope. 123 Consequently, the Commission did not infringe Article 4(6) of Regulation No 1049/2001 by refusing partial access to the Roadmap, so that the fifth plea must also be rejected. 124 In the light of that conclusion, it is not necessary to examine the merits of the second and third pleas in law raised by the applicant, according to which the Commission wrongly relied, first, on the exception relating to the protection of commercial interests within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001 and, second, on the exception relating to the protection of court proceedings pursuant to the second indent of Article 4(2) of that regulation, in order to refuse access to the document requested. 125 Admittedly, according to the case-law, the same document may indeed be covered by one or several exceptions provided for by Regulation No 1049/2001 (judgment of 10 September 2008, Williams v Commission, T‑42/05, not published, EU:T:2008:325, paragraph 126). 126 However, it is apparent from the examination of the first, fourth and fifth pleas in law that, first, the Commission did not err in considering that disclosure of the Roadmap would undermine the protection of investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, second, the applicant has not demonstrated the existence of an overriding public interest which would nevertheless justify giving access to the requested document and, third, the Commission did not err in refusing any disclosure, even partial, of its contents pursuant to Article 4(6) of Regulation No 1049/2001 in order to protect the investigations in question. 127 As the exception based on the protection of investigations in itself justifies non-disclosure of the Roadmap, for reasons of procedural economy, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of commercial interests and the protection of court proceedings are well founded (see, to that effect, judgment of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 172 (not published and the case-law cited)). 128 In the light of all the foregoing considerations, the action must be dismissed without there being any need to rule on the Commission's head of claim seeking to exclude the documents referred to in the footnotes to the statement of modification of the application solely in the form of a link referring to a website. Costs 129 Under Article 134(1) 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. 130 According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs shall be in the discretion of the Court. 131 In the present case, it must be held that, as the applicant points out, the fact that there is no need to rule on the lawfulness of the implied decision rejecting the confirmatory application for access results from the adoption of the contested decision, which took place more than four months after the expiry of the period for replying to the confirmatory application for access laid down in Article 8(1) and (2) of Regulation No 1049/2001, and that the applicant, in order to safeguard its rights, had no choice but to bring an action for annulment of that implied decision refusing access pending a possible express decision of the Commission, the adoption of which led the applicant to submit a statement of modification of the initial application. 132 It therefore appears appropriate — and on an equitable assessment of the case the Court decides, in the circumstances of the present case — that the applicant, which has been essentially unsuccessful, should bear three quarters of the costs, including those incurred by the intervener, and that the Commission should bear one quarter of its own costs and pay one quarter of the costs incurred by the applicant and the intervener. On those grounds, THE GENERAL COURT (Tenth Chamber) hereby: 1. Declares that it is no longer necessary to rule on the legality of the European Commission’s implied decision rejecting the confirmatory application for access by ViaSat, Inc. of 31 May 2017 to the ‘Roadmap of Measures Towards the Compliance of Selected and Authorised Mobile Satellite Services (MSS) Operators with Common Conditions of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008, Including Intermediate New Steps and Corresponding Time Limits’; 2. Dismisses the action as to the remainder; 3. Orders ViaSat to pay, in addition to three quarters of its own costs, three quarters of the costs incurred by the Commission and by Inmarsat Ventures Ltd; 4. Orders the Commission to pay, in addition to one quarter of its own costs, one quarter of the costs incurred by ViaSat and by Inmarsat Ventures Ltd. Kornezov Buttigieg Kowalik-Bańczyk Delivered in open court in Luxembourg on 28 May 2020. E. Coulon M. van der Woude Registrar President * Language of the case: English.