Opinion of the Advocate General — ECLI:EU:C:2016:885
Date: 2016-11-17
Language of the case: German
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - unfounded
Origin: Sweden

Summary — Judgment of the Court (Fourth Chamber), 11 May 2017 1. Actions for failure to fulfil obligations — Right of the Commission to bring judicial proceedings — Establishment of the EU Pilot mechanism to detect possible failures to fulfil obligations under EU law — Purpose (Art. 258 TFEU) 2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Application to documents concerning an EU Pilot procedure — General presumption that the exception to the right of access applies — Lawfulness (Art. 258 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent) 3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Overriding public interest justifying the disclosure of documents — Concept — Burden of proof (European Parliament and Council Regulation No 1049/2001, Art. 4(2)) 4. Actions for annulment — Review of legality — Criteria — Account taken only of elements of fact and law existing at the date on which the contested measure was adopted (Art. 263 TFEU) 1. The EU Pilot procedure constitutes a cooperation procedure between the Commission and the Member States which makes it possible to ascertain whether EU law has been complied with and correctly applied within those States. That type of procedure seeks efficiently to resolve any infringements of EU law by avoiding, so far as possible, the formal opening of an infringement procedure under Article 258 TFEU. The function of the EU Pilot procedure is therefore to prepare or avoid a procedure for failure to fulfil obligations against a Member State. The EU Pilot procedure merely formalised or structured the exchanges of information which traditionally occurred between the Commission and the Member States during the informal stage of an inquiry into possible infringements of EU law. (see paras 38, 39, 43) 2. So long as, during the pre-litigation stage of an inquiry carried out as part of an EU Pilot procedure, there is a risk of affecting the nature of the infringement procedure, altering its progress or undermining the objectives of that procedure, the application of the general presumption of confidentiality of the documents exchanged between the Commission and the Member State concerned is justified. That risk exists until the EU Pilot procedure is closed and there is a definitive decision not to open a formal infringement procedure against the Member State. Accordingly, the Commission is able to take as its basis, when relying on the exception concerning investigations laid down in the third indent of Article 4(2) of Regulation No 1049/2001, a general presumption of confidentiality applying to certain categories of documents to refuse access to documents relating to an EU Pilot procedure, without making a specific and individual examination of the documents requested. (see paras 45, 51) 3. See the text of the decision. (see para. 56) 4. See the text of the decision. (see para. 63)