Judgment — ECLI:EU:T:2016:521
Date: 2016-09-21
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded
Origin: Luxembourg

summary. Furthermore, Annex I.A to the contract, to which access was also refused in its entirety by the Commission, also consists of the successful tenderer’s price schedule. As to Annex II to the contract, to which access was also refused, it contains the successful tender. Therefore, those documents are of exactly the same type as those referred to by the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38). Contrary to the applicant’s arguments, it cannot be inferred from that judgment that it concerns only a request for access to all the tenderers’ bids, and not a request for access only to the successful tenderer’s bid. 53 It is clear that the documents referred to by the present request for access, by their nature, may contain confidential technical and economic information about the successful tenderer, in particular information on the competences and working methods, its know-how, its internal organisation, its costs and proposed prices. 54 In those circumstances, the Commission rightly considered, in the contested decisions, that the successful tenderer’s bid, including the price schedule, Annex I.A to the contract, containing the price schedule and Annex II to the contract, containing the successful tenderer’s bid, were covered by a general principle according to which their disclosure would, in principle, undermine the protection of commercial interests. 55 Furthermore, it must be stated that, specifically in order to maintain the confidentiality of that sensitive commercial information, Article 113(2) of the Financial Regulation does not provide for communication of the successful tenderer’s bid to unsuccessful tenderers, and even states that it is possible to omit the communication of certain information where it would undermine legitimate business interests or could distort fair competition. 56 Second, it must be stated that at no stage in the proceedings did the applicant put forward any argument to show that the documents requested were not covered by the abovementioned presumption. 57 As far as concerns the price schedule as a whole, the applicant submits that the disclosure of that document would not undermine the successful tenderer’s commercial interests because the award notice indicated the price level of its offer. That argument cannot be accepted as the price schedule is a much more detailed document, setting out item by item the price of the services proposed, while the award notice merely gives the overall value of the contract awarded. 58 The same is true for the summary price schedule in the Annex to the tender. It must be held that that document also contains information relating to the price of the services proposed which is more detailed than the information disclosed by the award notice. Therefore the summary price schedule is also covered by the abovementioned presumption. 59 It follows that the Commission was entitled to take the view that the documents at issue, that is the successful tenderer’s bid, the price schedule, the summary price schedule and Annexes I.A and II to the contract were covered by the exception relating to the protection of commercial interests, without carrying out a specific and individual examination, which the applicant claims it should have made. 60 As far as concerns the applicant’s arguments relating to existence of an alleged overriding public interest justifying the disclosure, they will be examined under the fourth part below. 61 Finally, as regards the applicant’s argument that the information provided to it by the Commission concerning the successful bid price do not meet the requirements of Article 113 of the Financial Regulation, even if it were admissible, it must be stated that, contrary to the applicant’s suggestion, Article 113(2) of the Financial Regulation does not lay down any obligation to notify an unsuccessful tenderer, in relation to the characteristics and relative advantages of the successful bid, of detailed information concerning the prices. 62 In view of the foregoing, the second part must be rejected. Third part of the second plea: decision-making process not undermined 63 The applicant claims that the Commission wrongly based its decision on the exception based on the protection of the decision-making process in order to refuse access to certain documents, pursuant to Article 4(3) of Regulation No 1049/2001. 64 In that regard, it must be recalled that, according to settled case-law, a single document may 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). It is clear from the foregoing that the Commission did not commit any error holding that, under Article 4(1)(b) of that regulation, the disclosure of the whole evaluation report and the text of the contract signed with the successful tenderer would undermine the protection of personal data and that the disclosure of the tenderer’s bid including the price schedule and Annexes I.A and II to the contract, would undermined the protection of commercial interests, under Article 4(2), first indent, of that regulation. 65 Those exceptions, which the Court held were well founded, covering the documents to which access was completely refused and the redacted parts of the documents requested, for reasons of procedural efficiency, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of the decision-making process are well founded as they are irrelevant (see, to that effect, order of 27 November 2012, Steinberg v Commission, T‑17/10, not published, EU:T:2012:625, paragraph 89). Fourth part: existence of an overriding reason of public interest 66 The applicant submits that, despite the risk of undermining the protection of business secrets, there is an overriding public interest justifying the disclosure, within the meaning of the last sentence of Article 4(2) of Regulation No 1049/2001. 67 As stated above, it is clear from the case-law that the application of a general presumption, like the presumption that commercial interests will be undermined in the present case, does not exclude the possibility of showing that there is an overriding public interest justifying the disclosure (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 126). 68 It is, however, for the party requesting access to refer to specific circumstances to establish 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). 69 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). 70 However, general considerations cannot be accepted in order to justify access to the documents requested (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). 71 With respect to the present case, it must be stated that, in its confirmatory requests, the applicant merely relied on the principle of transparency, adding that there is a discrepancy between the amount indicated in the award notice and the amount of the successful tenderer’s bid. According to the confirmatory requests, disclosure of the documents requested is necessary in order to enable the applicant to verify the amount for which the contract was awarded. 72 In that connection, it must be recalled that, on the date of the decision of 1 April 2014, the applicant had already brought its action for annulment against the decision rejecting its bid. In that case it argued, inter alia, that the award of the contract for an amount greater than that of the successful tenderer’s bid constituted an irregularity, as is clear from paragraph 19 of the judgment of 8 October 2015, Secolux v Commission (T‑90/14, not published, EU:T:2015:772). In those circumstances, it must be held that the interest relied on by the applicant is a private, not public, interest. 73 According to settled case-law, the fact that the documents requested may be necessary for the applicant in order to argue its case in an action constitutes a private interest. Therefore, since the applicant requested access to the documents at issue in order to enable it to present more convincing arguments in its action for annulment, that cannot constitute an overriding public interest justifying disclosure (see, to that effect, judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraphs 142 and 146, and judgment of 20 March 2014, Reagens v Commission, T‑181/10, not published, EU:T:2014:139, paragraph 142). 74 The applicant does not put forward any detailed argument in support of its reliance on the general principle of transparency. Therefore, as regard the principles of proportionality and that of equal treatment and non-discrimination, the applicant, apart from the fact that it did not rely on that principle in its confirmatory requests to justify the existence of an overriding public interest, merely mentions them without putting forward any specific arguments. 75 Having regard to the foregoing, it must be concluded that the applicant has failed to show the existence of an overriding public interest justifying the disclosure of the documents at issue under Article 4(2), final clause, of Regulation No 1049/2001. 76 Therefore, the fourth part of the second plea must be rejected. Fifth part of the second plea: refusal of partial disclosure 77 The applicant claims that the contested decisions infringe Article 4(6) of Regulation No 1049/2001, in so far as they refuse to grant partial access to certain documents requested. According to the applicant, the Commission should have carried out a specific examination, for each document, of the reasons for which partial disclosure was not possible. 78 Pursuant to Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of those exceptions, the remaining parts of the document are to be released. 79 In that connection, first, it must be held that the Commission has granted partial access to the evaluation report and the text of the contract concluded with the successful tenderer and the applicant has failed to put forward any argument from which it may be concluded that it should have given access to other parts of those documents. In that connection, it must be recalled, as stated in paragraph 38 above, that the Commission has not given access to Section 6 of the evaluation report because it concerns Lot No 2, which is not covered by the application. 80 Second, as regards the successful tenderer’s bid, including the price schedule, either in its full version or the summary form, and Annexes I.A and II to the contract, it is clear from the case-law that the general presumption referred to in paragraphs 52 to 54 of the present judgment has the effect that the documents covered by it do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect, judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133). 81 Therefore, the fifth part of the second plea must be rejected and, therefore, the second plea must be rejected in its entirety as unfounded. Third plea: infringement of Article 296 TFEU 82 By way of preliminary observation, the Court observes that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 10 September 2008, Williams v Commission, T‑42/05, EU:T:2008:325, paragraph 94; of 7 July 2011, Valero Jordana v Commission, T‑161/04, not published, EU:T:2011:337, paragraph 48, and of 15 July 2015, Dennekamp v Parliament, T‑115/13, EU:T:2015:497, paragraph 136). 83 In the case of a request for access to documents, where the institution in question refuses such access, it must demonstrate in each individual case, on the basis of the information at its disposal, that the documents to which access is sought do indeed fall within the exceptions listed in Regulation No 1049/2001 (judgments of 10 September 2008, Williams v Commission, T‑42/05, EU:T:2008:325, paragraph 94, and of 7 July 2011, Valero Jordana v Commission, T‑161/04, not published, EU:T:2011:337, paragraph 49). It is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine. 84 The present case must be examined in the light of those principles. 85 First, as regards the complaint based on the failure to state reasons concerning the protection of privacy, it must be held that the contested decisions explain, to the requisite legal standard, the reasons for which certain passages of the evaluation report and the contract signed by the successful tenderer could not be disclosed in order to protect personal data. 86 There is no factual basis for the applicant’s arguments concerning Section 6 of the evaluation report, as the Commission explained in its pleadings and as is clear from the examination of that document by the Court, that section concerns Lot No 2 which is not covered by the request for access. 87 In that connection, as stated in paragraph 38 above, even though the Commission could have done more to help the applicant to understand the contested decisions by specifying the parts of the documents covered by the protection of personal data and those concerning Lot No 2, it must be observed that it has not breached the obligation to state reasons by acting as it has in the present case. 88 The applicant’s argument concerning the successful tenderer’s bid must also be rejected, because the Commission did not base its decision on the protection of privacy in order to refuse access to that document. 89 Second, as regards the protection of commercial interests, contrary to the applicant’s submissions, the contested decisions contain sufficient reasoning concerning the application of a general presumption of non-disclosure of the successful tender, including the price schedules and Annexes I.A and II to the contract, in order to ensure that protection. 90 Third, for the same reasons as those set out in paragraphs 64 and 65 of the present judgment, it is unnecessary to examine whether the complaint based on a supposed failure to state reasons concerning the protection of the decision-making process in order to decide the present case, which is irrelevant. 91 Fourth, as far as concerns the reasoning to the effect that an overriding public interest does not exist it must be observed that, in its confirmatory requests, the applicant merely relied on the principle of transparency in general terms, mentioning incidentally its interest in being able to verify the existence of a discrepancy between the award notice and the amount of the successful tenderer’s bid. In that connection, it is clear from the contested decisions that the Commission found in a succinct but clear manner that the applicant had not put forward any argument such as to establish the existence of an overriding public interest justifying disclosure. The Commission also added that it had been unable to identify any overriding public interest justifying disclosure. Furthermore, it should be noted that, in its initial decisions, the Commission explicitly stated on that point that the applicant’s interest in disclosure was of a private nature. In those circumstances, the argument based on a failure to state reasons with respect to the existence of an overriding public interest must be dismissed. 92 Lastly, it must be added, with regard to the decision of 14 April 2014, that Annexes I.A and II to the contract contained the price schedule and the successful tenderer’s bid. For that reason, the decision of 14 April 2014 could legitimately refer to the reasoning of the decision of 1 April 2014, which had already reached a conclusion on the communication of that information. 93 Accordingly, the fourth plea, alleging infringement of the obligation to state reasons, must be rejected as unfounded. 94 The present action must therefore be dismissed in its entirety. Costs 95 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Secolux, Association pour le contrôle de la sécurité de la construction, to pay the costs. Frimodt Nielsen Collins Valančius Delivered in open court in Luxembourg on 21 September 2016. [Signatures] * Language of the case: French.