Judgment — ECLI:EU:T:2011:235
Date: 2011-05-24
Language of the case: Italian
Court formation: Fourth Chamber
Subject matter: State aids;Competition;Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Italy

summary of the pleas in law on which the application is based and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. A plea which may be regarded as amplifying a plea put forward previously – whether directly or by implication – in the originating application and which is closely connected therewith, must be held admissible. By contrast, a plea which cannot be regarded as based on matters of law or of fact which came to light in the course of the proceedings has to be held inadmissible. In those circumstances, there was nothing to prevent the applicant from raising such a plea at the stage of the application (see, to that effect, the order of the President of the Third Chamber of the Court of Justice of 13 November 2001 in Case C-430/00 P Dürbeck v Commission [2001] ECR I-8547, paragraphs 17 to 19, and Case T-75/06 Bayer CropScience and Others v Commission [2008] ECR II‑2081, paragraph 136). 150 In the present case, by alleging at the reply stage that the information is too old to be regarded as sensitive, the applicant was too late in raising a new argument to support its application for disclosure of the documents in question. It cannot be said that that complaint merely amplifies a plea put forward previously and it is therefore inadmissible. 151 The second part of the first plea must therefore be dismissed. 152 It follows from the foregoing that the first plea must be dismissed. c) Second plea: breach of the principle of non-discrimination Arguments of the parties 153 The applicant considers that it has been discriminated against in so far as, in an earlier decision on State aid, the Commission published the additional costs connected with public service obligations and the amount of the corresponding aid (Commission Decision 2001/156/EC of 19 July 2000 on the State aid implemented by Spain in favour of the maritime transport sector (new maritime public service contract) (OJ 2001 L 57, p. 32), ‘the Trasmediterranea decision’). The applicant observes that this decision publishes information concerning public service obligations, route by route, thus enabling competitors to verify its correctness. 154 The Commission replies that the discrimination complained of by the applicant does not in fact exist because, in the abovementioned decision, the total profits or losses of the undertaking were concealed and the different cost components were not published. 155 In any case, the publication of information in a decision depends on the request for confidential treatment by the Member States and/or the interested parties. According to the Commission, a mere variation in administrative practice does not necessarily mean that a decision to publish or not to publish certain information is illegal. In its rejoinder the Commission adds that the legal context of the two decisions is different. In the Trasmediterranea decision it was necessary to analyse the costs of different routes because Spain awarded the aid by reference to each of the shipping routes, whereas in the present case Italy based the system on the global costs for each operator. 156 Caremar observes that the relative approach to confidentiality was similar in the Trasmediterranea decision. It points out that in that decision the figures for each cost component and the global management profits of the undertaking were concealed. All that was published was the global estimate of the costs and earnings of an undertaking carrying out a public service contract in high season and low season. Findings of the Court 157 According to settled case-law, the principle of equal treatment, which constitutes a fundamental principle of law, prohibits comparable situations from being treated differently or different situations from being treated in the same way, unless such difference in treatment is objectively justified (Joined Cases T‑222/99, T‑327/99 and T‑329/99 Martinez and Others v Parliament [2001] ECR II‑2823, paragraph 150, and Case T-390/08 Bank Melli Iran v Council [2009] ECR II-3967, paragraph 56). 158 In the present case, the applicant considers that it has been discriminated against in so far as, in the Trasmediterranea decision the Commission disclosed the information concerning the public service obligations of each of the shipping routes. 159 Even if, as the applicant submits in essence, its situation is comparable with that of any person who wishes to know the figures for the additional costs connected with public service obligations in the Trasmediterranea decision, it must be observed that if, in the context of that decision, the Commission had presented those additional costs differently by distinguishing specifically, in comparison with Decision 2005/163, the variable costs and the fixed costs of the additional cost components connected with public service obligations, only the total costs connected with public service obligations was published in the Trasmediterranea decision and in Decision 2005/163, and not the details of each of the costs taken into account for calculating the annual compensation. 160 In view of the foregoing, it cannot be concluded that the applicant has been discriminated against. 161 Accordingly, the plea of breach of the principle of non-discrimination must be rejected. d) Third plea: breach of the principle of proportionality Arguments of the parties 162 The applicant observes that, in the first contested decision, the Commission emphasises the requirement for the protection of all information without considering the specific nature of the request for access to the additional costs connected with public service obligations for the Naples-Beverello/Capri route. According to the applicant, the Commission, by referring to the request in general terms, is infringing Article 4(6) of Regulation No 1049/2001 which provides that, if parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released. The first contested decision does not show how far disclosure of the partial information concerning the Naples-Beverello/Capri route could damage Caremar’s commercial interests. 163 The applicant submits that, in referring to the global figures published in Decision 2005/163, the Commission does not explain the precise reasons for refusing partial access, in accordance with Article 4(6) of Regulation No 1049/2001. 164 The Commission replies that the figures requested are those shown in the tables in paragraphs 128 and 140 of that decision, which do not contain the analytical costs relating to the Naples-Beverello/Capri route. 165 Caremar, like the Commission, submits that the present plea is unfounded because, in the present case, there could not be partial access to the information in accordance with Article 4(6) of Regulation No 1049/2001. Findings of the Court 166 In support of this plea, the applicant complains that the Commission ignored part of its request, namely the request for access to the additional costs connected with the public service obligations for the Naples-Beverello/Capri route. This plea does not contain any particular complaints with regard to a breach by the Commission of the principle of proportionality. 167 As the applicant’s complaints relate to an insufficient statement of reasons for the first contested decision, reference must be made to the plea of failure to fulfil the obligation to state reasons in paragraphs 81 to 93 above. 168 Therefore the fourth plea must be upheld in part, the first contested decision must be annulled in part, as stated at paragraph 93 above, and the remainder of the application in Case T-109/05 must be dismissed. B – Case T-444/05 169 In its action in Case T-444/05 the applicant raises six pleas: the first alleges infringement of Article 8(1) of Regulation No 1049/2001, the second alleges failure to fulfil the obligation to state reasons, the third alleges infringement of Article 4(4) and (5) of Regulation No 1049/2001, the fourth – abuse of process and misuse of powers, and the fifth – breach of the principle of non-discrimination and the rights of defence. In the alternative, the applicant raises a sixth plea, alleging the illegality of Article 4(5) of Regulation No 1049/2001. 170 It is appropriate, first of all, to consider the plea in law alleging infringement of Article 4(4) and (5) of Regulation No 1049/2001. 1. Arguments of the parties 171 The applicant submits that the Commission erred in three respects by consulting the Italian authorities pursuant to Article 4(4) and (5) of Regulation No 1049/2001 and using their objection in order to justify the refusal to grant access to the information requested. 172 In the first place, the applicant considers that, by consulting the Italian authorities, the Commission failed to have regard to the publication rules for additional cost components connected with public service obligations. The rules do not permit the identification, classification and reporting of State aid. With regard to the additional costs connected with public service obligations which are compensated for by State aid, disclosure of the figures is required in view of the transparency requirement imposed by the State aid rules, the Communication on professional secrecy in State aid decisions and the Altmark judgment, paragraph 79 above. 173 Secondly, the applicant, pointing out that Article 4(4) and (5) of Regulation No 1049/2001 permits consultation only of the third party originating the document in question, submits that in the present case the Commission ought to have consulted Caremar and not the Italian authorities because the documents requested originate from Caremar. Therefore the wrong legal basis was chosen. 174 The applicant also submits that a comparison of the different language versions of Article 4(5) of Regulation No 1049/2001, examination of the rules laid down by Article 9 of the regulation and the terms of the judgment in Case T-187/03 Scippacercola v Commission [2005] ECR II-1029 lead to the conclusion that the exception laid down by Article 4(5) of Regulation No 1049/2001 must be interpreted as referring to documents of which the Member State is the author. 175 According to the applicant, if Article 4(5) of Regulation No 1049/2001 had to be interpreted as meaning that a Member State has a right of veto regarding the disclosure of a document originating from that State, individuals would automatically be deprived of the right to access to documents originating from that State. 176 Third, the applicant submits that consultation of the Italian authorities is irrelevant since they and Caremar were duly consulted in the context of the procedure referred to in Article 25 of Regulation No 659/1999. 177 The Commission replies that, first, the applicant’s complaints are inadmissible and unfounded. The request by the Italian authorities not to disclose a document on the basis of Article 4(5) of Regulation No 1049/2001 is of a mandatory nature and can be challenged only before an Italian court, even if the request forms the basis of a subsequent decision. 178 Returning to the applicant’s three complaints, first, the Commission submits that the arguments concerning alleged transparency requirements in State aid matters and the Communication on professional secrecy in State aid decisions are irrelevant because the second contested decision was adopted under Regulation No 1049/2001. 179 First, regarding its previous decision-making practice, the Commission observes that the publication of certain information in a decision may depend on whether the Member State and/or the persons interested request confidential treatment or, on the contrary, authorise the publication of certain information. 180 The Commission also considers that Article 4(4) of Regulation No 1049/2001 on the consultation of third parties in general is not applicable in the present case because the documents supplied by the Member States fall within the scope of the lex specialis of Article 4(5). 181 Secondly, the Commission considers that Article 4(5) of the regulation refers not only to documents of which the Member States are the authors, but also any document originating from those States. 182 The Commission also submits that it is clear from recital 15 to Regulation No 1049/2001 and the settled case-law of the Court that the Member States’ power to veto the disclosure of documents, in accordance with Article 4(5) of Regulation No 1049/2001 is justified by the fact that that regulation has neither the object nor the effect of modifying national laws on access to documents. 183 Following a written question to the parties on 10 October 2008, asking them to submit their observations on the conclusions to be drawn from the judgment in Sweden v Commission, paragraph 33 above, the Commission enclosed with its reply a letter from the Italian authorities of 8 July 2005, from which it appears that they refused to disclose to the applicant the documents which had been requested on the ground that disclosure would undermine the protection of Caremar’s commercial interests, in accordance with Article 4(2), first indent, of Regulation No 1049/2001. According to the Commission, the Italian authorities had consequently stated their reason for opposition on the basis of one of the exceptions provided for by Article 4(1) to (3) of Regulation No 1049/2001. The Commission added that the omission of reasons had in any event no effect on the legality of the decision in the present case because the reasoned refusal of the Italian authorities was binding on the Commission and obliged it to refuse the request for access and that, in any case, it could only lead to the adoption of another decision identical in substance to the decision annulled (see, to that effect, Case T-16/02 Audi v OHIM (TDI) [2003] ECR II-5167, paragraph 97, and Joined Cases T-217/03 and T-245/03 FNCBV v Commission [2006] ECR II-4987, paragraph 263). 184 Third, regarding the complaint that consultation of the Italian authorities was pointless as they had already been consulted pursuant to Article 25 of Regulation No 659/1999, the Commission replies that it is precisely because Italy had already opposed disclosure of the analytical data in the tables in paragraphs 128 and 140 of the confidential version of Decision 2005/163 that the Commission had a duty to consult Italy before giving a decision on access to similar data by virtue of Regulation No 1049/2001. 185 Italy, the Council and Caremar support the Commission in each of its arguments. In particular, Italy and Caremar observe that in Case T‑168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR II-4135, the Court clarified the meaning of Article 4(5) of Regulation No 1049/2001 by pointing out that Article 4(5) confers on a Member State the right to request an institution not to disclose a document originating from that Member State without its prior agreement. Thus, contrary to what the applicant argues, a request made by a Member State under Article 4(5) does constitute an instruction to the institution not to disclose the document in question. 2. Findings of the Court 186 First of all, it is necessary to examine the applicant’s second complaint that the exception laid down by Article 4(5) of Regulation No 1049/2001 refers to documents of which the Member State is the author. 187 It should be noted that the Community legislature – in particular, by the adoption of Regulation No 1049/2001 – abolished the ‘authorship rule’ which had previously prevailed. As appears from Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43), Commission Decision 94/90/ECSC, EC, Euratom, of 8 February 1994 on public access to Commission documents (OJ 1994 L 46, p. 58), and Parliament Decision 97/632/EC, ECSC, Euratom, of 10 July 1997 on public access to European Parliament documents (OJ 1997 L 263, p. 27), such a rule meant that, where the author of a document held by an institution was a natural or legal person, a Member State, another Community institution or body, or any other national or international organisation, the request for access to the document had to be made directly to the author of the document (Sweden v Commission, paragraph 33 above, paragraph 56). 188 The Court of Justice added that, far from referring only to documents of which the Member States are the authors or which have been drawn up by them, Article 4(5) of Regulation No 1049/2001 potentially concerns every document ‘originating’ from a Member State, in other words, the entirety of the documents, whoever their author may be, that a Member State transmits to an institution. In this case the only relevant criterion is the origin of the document and the handing over by the Member State concerned of a document previously in its possession (Sweden v Commission, paragraph 33 above, paragraph 61). 189 In relation to that complaint, the applicant also submits that the Commission’s view that the Member State has a right of veto on the disclosure of a document originating from that Member State and transmitted to the institutions amounts to depriving any individual of the right to access to documents originating from that State. 190 It must be observed that, in the second contested decision, the Commission refused to disclose to the applicant the document concerning Caremar’s annual additional costs in discharging its public service obligations on the Naples-Beverello/Capri route on the ground that the Italian authorities had expressly objected to the disclosure of the information, in accordance with Article 4(5) of Regulation No 1049/2001. 191 In that connection, the Court of Justice has observed that to interpret Article 4(5) of Regulation No 1049/2001 as conferring on the Member State a general and unconditional right of veto, so that it can oppose, in an entirely discretionary manner and without having to give reasons for its decision, the disclosure of any document held by a Community institution, simply because it originates from that Member State, is not compatible with the objectives of Regulation No 1049/2001 (Sweden v Commission, paragraph 33 above, paragraph 58). 192 On the contrary, several factors militate in favour of an interpretation of Article 4(5) to the effect that the exercise of the power conferred by that provision on the Member State concerned is delimited by the substantive exceptions set out in Article 4(1) to (3), with the Member State merely being given in this respect a power to take part in the Community decision. Seen in that way, the prior agreement of the Member State referred to in Article 4(5) resembles not a discretionary right of veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) is present (Sweden v Commission, paragraph 33 above, paragraph 76). 193 As to the procedural implications of Article 4(5) of Regulation No 1049/2001 so interpreted, it should be noted, in the first place, that where the implementation of rules of Community law is thus entrusted jointly to the institution and the Member State which has made use of the possibility granted by that provision, and such implementation consequently depends on the dialogue to be carried on between them, they are obliged in accordance with the duty of loyal cooperation set out in Article 10 EC to act and cooperate in such a way that those rules are effectively applied (Sweden v Commission, paragraph 33 above, paragraph 85). 194 It follows, first, that an institution which receives a request for access to a document originating from a Member State and that Member State must, once that request has been notified by the institution to the Member State, commence without delay a genuine dialogue concerning the possible application of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, while paying attention in particular to the need to enable the institution to adopt a position within the time‑limits within which Articles 7 and 8 of the regulation require it to decide on the request for access (Sweden v Commission, paragraph 33 above, paragraph 86). 195 A Member State which, following such dialogue, objects to disclosure of the document in question is obliged to state reasons for that objection with reference to those exceptions. Indeed, the institution concerned cannot accept a Member State’s objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons are not put forward in terms of the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001. Where, despite an express request to that effect by the institution concerned to the Member State, the Member State still fails to provide the institution with such reasons, the institution must, if for its part it considers that none of those exceptions applies, give access to the document that has been asked for (Sweden v Commission, paragraph 33 above, paragraphs 87 and 88). 196 Finally, as is apparent in particular from Articles 7 and 8 of the regulation, the institution is itself obliged to give reasons for a decision to refuse a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document asked for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access in Article 4(1) to (3) of the regulation applies. That information will allow the person who has asked for the document to understand the origin and grounds of the refusal of his request and the competent court to exercise, if need be, its power of review (Sweden v Commission, paragraph 33 above, paragraph 89). 197 In the present case, it is clear from the second contested decision that the Commission refused access to the documents requested merely on the ground that the Italian authorities had expressly objected, without stating upon which exception under Article 4(1) to (3) of Regulation No 1049/2001 the Italian authorities had based their objection. 198 The Commission produced a letter from the Italian authorities of 8 July 2005 in reply to a written question from the Court concerning the conclusions to be drawn from the Sweden v Commission judgment, paragraph 33 above, to which the Commission replied on 30 October 2008. It appears from the Italian authorities’ letter that they refused access to the documents requested by the applicant on the ground that disclosure would undermine the protection of Caremar’s commercial interests, as laid down by Article 4(2), first indent, of Regulation No 1049/2001. 199 In the present case, it is not for the Court to assess the legality of the second contested decision by reference to additional reasons furnished by the Commission on 30 October 2008 following the judgment in Sweden v Commission, paragraph 33 above, after the closure of the written procedure. The reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account. It follows that the decision must be self-sufficient and that the reasons on which it is based may not be stated in written or oral explanations given subsequently when the decision in question is already the subject of proceedings brought before the Union judicature (Case T-349/03 Corsica Ferries France v Commission [2005] ECR II-2197, paragraph 287). 200 Likewise it cannot be accepted that the lack of a statement of reasons should in any case affect the legality of the decision because, in the present case, the reasoned refusal of the Italian authorities was binding on the Commission and it could lead only to a similar new decision on the basis of the second contested decision. 201 The case-law cited by the Commission (TDI, paragraph 183 above, paragraph 97, and FNCBV v Commission, paragraph 183 above, paragraph 263) is not relevant to the present case because the lack of reasons in the second contested decision means that the Court cannot verify whether the Commission’s refusal to disclose the documents originating from the Italian authorities is based on one of the reasons invoked by the Italian authorities in claiming that one of the exceptions to the right of access under Article 4(1) to (3) of Regulation No 1049/2001 should apply (see, to that effect, Sweden v Commission, paragraph 33 above, paragraph 89). The fact that the Commission intends to make a similar decision regarding the substance of the second contested decision by reason of the fact that it is bound by the refusal of the Italian authorities, in conformity with the judgment in Sweden v Commission, cannot however prevent the Court from examining the legality of the decision which is the subject of the present action. 202 Consequently the second contested decision must be annulled in so far as the Commission did not refer in it to the reasons put forward by the Italian authorities for claiming that one of the exceptions, provided for in Article 4(1) to (3) of Regulation No 1049/2001, to the right of access should apply. It is unnecessary to give a ruling on the other complaints in the context of the third plea or on the other five pleas raised by the applicant in support of its action. Costs A – Case T‑109/05 203 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of those rules, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared. 204 In the present case, since the action in Case T-109/05 has been partially successful, the Court considers it fair, having regard to the circumstances of the case, to order the Commission to bear one third of its own costs and one third of the costs incurred by the applicant, the latter to bear two thirds of its own costs and two thirds of the costs incurred by the Commission. 205 Under the third subparagraph of Article 87(4) of the Rules of Procedure, the Court may order an intervener to bear his own costs. Caremar, which intervened in support of the form of order sought by the Commission, must therefore be ordered to bear its own costs. B – Case T‑444/05 206 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. 207 Under the first paragraph of Article 87(4) of the Rules of Procedure, Member States intervening in the dispute are to bear their own costs. The Italian Republic must therefore be ordered to bear its own costs. The Council and Caremar, in conformity with Article 87(4) of the Rules of Procedure, are ordered to bear their own costs. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Annuls Commission Decision D(2005) 997 of 3 February 2005 in so far as it relates to the refusal of access to detailed elements of the additional costs borne annually by Caremar SpA in connection with the passenger transport services operated on the Naples-Beverello/Capri route by ferries and by high-speed connections; 2. Dismisses the application in Case T‑109/05 as to the remainder; 3. Orders the European Commission to pay one third of its own costs and one third of the costs incurred by Navigazione Libera del Golfo Srl, the latter to bear two thirds of its own costs and two thirds of the costs incurred by the Commission in Case T-109/05; 4. Orders Caremar to pay its own costs in Case T‑109/05; 5. Annuls Commission Decision D(2005) 9766 of 12 October 2005; 6. Orders the European Commission to pay the costs in Case T‑444/05; 7. Orders the Italian Republic, the Council of the European Union and Caremar each to bear their own costs. Czúcz Labucka O’Higgins Delivered in open court in Luxembourg on 24 May 2011. Table of contents Legal context Background of the case and procedure Forms of order sought by the parties Law A – Case T‑109/05 1. The subject-matter of the proceedings a) Arguments of the parties b) Findings of the Court 2. Admissibility a) Arguments of the parties b) Findings of the Court 3. The substance of the case a) The fourth plea, alleging failure to fulfil the obligation to state reasons Arguments of the parties Findings of the Court b) First plea: error of law in the application of the exception provided for under Article 4(2), first indent, of Regulation No 1049/2001 First part: error of law in the choice of legal basis – Arguments of the parties – Findings of the Court Second part: infringement of Article 4(2), first indent, of Regulation No 1049/2001 – Arguments of the parties – Findings of the Court c) Second plea: breach of the principle of non-discrimination Arguments of the parties Findings of the Court d) Third plea: breach of the principle of proportionality Arguments of the parties Findings of the Court B – Case T-444/05 1. Arguments of the parties 2. Findings of the Court Costs A – Case T‑109/05 B – Case T‑444/05 * Language of the case: Italian.