Judgment — ECLI:EU:T:2010:15
Date: 2010-01-19
Language of the case: Italian
Court formation: Second Chamber
Subject matter: Agriculture and Fisheries;Provisions governing the Institutions;Access to documents;Bananas
Procedure: Action for annulment - unfounded
Origin: Italy

summary exposition of the reasons why it considers that the exception concerning the protection of commercial interests applies, and that the Commission cannot merely invoke the exception without providing reasons. According to the applicant, the case-law requires the Commission to state, at least for each category of documents requested, specific reasons designed to enable an addressee of a decision refusing access to assess whether that decision is well founded. 97 The Commission contends that the contested decision expressly mentions the reason for refusal, in so far as it states that disclosure of the documents concerned could ‘undermine the commercial interests of operators, since they would make public the reference quantities attributed to each operator as well as the quantities actually imported by each operator’, while it was not possible to identify any public interest linked with disclosure of the documents. 98 The Commission maintains that knowledge of the quantities of bananas imported by each operator makes it possible to determine the volume of actual activity of each operator and to predict their future business performance. That type of information is considered by the Commission to concern the undertaking’s commercial relationships and is not public. The Commission contends that the applicant, which has business on the banana market, cannot reasonably claim to be unaware of the reason why the Commission referred to commercial harm to the operators concerned. The Commission relies by way of evidence on the fact that, when invoking an erroneous application of that exception, the applicant produced ample arguments on the substance. – Findings of the Court 99 According to settled case-law, the statement of reasons required under Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution responsible for authorship of the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review (judgment of 30 January 2008 in Case T‑380/04 Terezakis v Commission (not published in the ECR), paragraph 70). 100 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 Article 253 EC 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 (see Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 55 and the case-law cited, and Terezakis v Commission, paragraph 70). 101 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. However, it may be impossible to give reasons justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and thereby defeating the very purpose of the exception (Terezakis v Commission, paragraph 71). 102 In the present case, the Commission clearly indicated that, independently of the position of the Member States, the exception upon which the Commission based its refusal is that provided for in the first indent of Article 4(2) of Regulation No 1049/2001. That is in accordance with the judgment of the Court of Justice in IFAW (paragraphs 68 and 99). 103 In addition, as the applicant has correctly pointed out, the Commission actually adopted a succinct statement of reasons closely reflecting the words of the first indent of Article 4(2) of Regulation No 1049/2001. 104 However, the decision of 10 August 2004, adopted in response to the confirmatory application for access to documents, is a document of five pages which sets out a clear analysis. In point 4 of that decision, the Commission maintains that, in its decisional practice, it has consistently considered that reference quantities and the quantities actually imported by operators constitute information which cannot be disclosed, because its disclosure could undermine the commercial interests of the operators. The Commission states that that information consequently falls under the first indent of Article 4(2) of Regulation No 1049/2001. In point 5 of that decision, the Commission explains that it wished to confirm its analysis by consulting the Member States responsible for authorship of the documents concerned. Since a large majority of those Member States confirmed the Commission’s findings concerning the risk of undermining the commercial interests of the operators concerned, the Commission refused access to any of the documents requested which originated in the Member States opposed to disclosure, pursuant to Article 4(5) of Regulation No 1049/2001. The Commission moreover considered, in point 7 of the decision of 10 August 2004, that the applicant’s interest in obtaining access to the documents requested could not be regarded as constituting an overriding public interest. 105 Since the decision of 10 August 2004 clearly reveals the Commission’s reasoning, it would be excessive to require a specific statement of reasons for each of the assessments on which that reasoning is based. It should also be observed that certain information cannot be communicated without jeopardising the effective protection of the commercial interests of other operators (see, by analogy, Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I‑4777, paragraphs 108 and 109). 106 The applicant, a traditional operator on the market for the importation of bananas into the Community, asked for access to very specific documents concerning the import activities of its competitors. As is apparent from the list of operators to which the Commission granted access for the years 1999 and 2000, the applicant requested the disclosure of information concerning the imports of 622 competitor undertakings established in 15 Member States. The Commission stated, in point 4 of the decision of 10 August 2004, that disclosure of the documents concerned could ‘undermine the commercial interests of operators, since they would make public the reference quantities attributed to each operator as well as the quantities actually imported by each operator’. It is clear that the quantities imported go to the very heart of the activity of undertakings active on the market in banana imports. 107 It follows that the applicant was placed fully in a position to understand the reasons for refusal which were raised against it, as was the Court to exercise its power of review. Accordingly, the decision of 10 August 2004 is not vitiated by breach of the obligation to state reasons. 108 The first part of the third plea must therefore be rejected. The second part, concerning the erroneous application of the exception referred to in the first indent of Article 4(2) of Regulation No 1049/2001 – Arguments of the parties 109 The applicant claims that the conditions for applying Article 4(2) of Regulation No 1049/2001 are not met. 110 It points out that the general principle of granting the public the widest possible access to documents held by the Commission, recognised by the case-law of the Court, requires that any exception be interpreted restrictively. 111 The applicant considers that, in the banana sector, the Commission does not exercise the traditional role of a supervisory body protecting competition, but in fact itself determines – through review and comparison of information forwarded by the Member States – the share of the market to go to each operator. More transparency is therefore required of the Commission than in other sectors. 112 According to the applicant, disclosure of the documents requested cannot undermine the commercial interests of other operators, since the banana trade sector constitutes a strictly regulated market in the context of the common organisation of the market in bananas, which means that other operators cannot claim any loss concerning the confidentiality of business information. 113 The applicant maintains that knowledge of the information requested cannot constitute a means of obtaining an unfair competitive advantage, but merely enables it to obtain the means necessary to protect its own interests. 114 Moreover, it claims that this marks the point beyond which the exceptions to disclosure can no longer apply, given that Article 4(7) of Regulation No 1049/2007 provides that ‘[t]he exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document’. Thus, the applicant states that it could not derive a competitive advantage from the documents concerned, since they relate to a period falling 4 to 10 years prior to the date on which it made its application. 115 The applicant relies, in addition, on overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001 to justify the disclosure of documents which would otherwise be covered by the exception. That interest lies in the importance of uncovering abuse on the part of its competitors, in order to ensure the smooth operation of the common organisation of the market in bananas. 116 The applicant considers that the exception on which the Commission’s refusal is based cannot be relied on: the only operator to suffer harm is the applicant, which, if it is unable to have access to the documents requested, will be unable to establish the existence of any fraud concerning banana imports. 117 The Commission contends that the information requested by the applicant is directed linked to the activity of each operator and thus incontestably falls within the notion of commercial interests referred to in the first indent of Article 4(2) of the regulation. The fact of operating within the framework of tariff quotas does not rule out the possibility that disclosure of the commercial activities of each operator could cause them harm. 118 The Commission contends that its role is limited to establishing the conversion coefficient applicable to all the reference quantities determined by the Member States where the sum of those quantities exceeds the total of the quantities available within the framework of the tariff quotas. Accordingly, it is not under any specific obligation. 119 The Commission contends that it was not necessary to provide specific reasons for each category of documents to which access was requested, given that the grounds for refusal did not vary. 120 In addition, the Commission considers that the age of the documents requested in no way affects the extremely sensitive nature of the commercial interests protected and refers, by way of example, to the protection accorded to the Communities’ historical archives, which may be for more than 30 years. It adds that the information from 1994 to 1996 served as the basis for determining the reference quantity for traditional operators in connection with the arrangements for importing bananas currently in force and that the information from 1999 and 2000 is too recent for it not to benefit from such protection. 121 The Commission contends that it is impossible to consider disclosure of the documents requested as being in the public interest. It states that the applicant is free to initiate a civil action within the criminal proceedings brought in respect of the alleged fraudulent activities and states that, in the context of judicial proceedings, it is ready to provide the competent authorities with all the documents requested from it. – Findings of the Court 122 According to settled case-law, the exceptions to document access fall to be interpreted and applied strictly so as not to frustrate application of the general principle of giving the public the widest possible access to documents held by the institutions (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 36; see also, by analogy, Case T‑191/99 Petrie and Others v Commission [2001] ECR II‑3677, paragraph 66). 123 Moreover, the examination required for the purpose of processing a request for access to documents must be specific in nature. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify the application of that exception (see, to that effect and by analogy, Denkavit Nederland v Commission, paragraph 45). In principle, application of the exception can be justified only if the institution has previously determined, first, that access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, that there is no overriding public interest justifying disclosure of the document concerned. 124 A specific, individual examination of each document is also necessary where, even if it is clear that a request for access refers to documents covered by an exception, only such an examination can enable the institution to assess whether it is possible to grant the applicant partial access under Article 4(6) of Regulation No 1049/2001. In the context of applying the Code of conduct on public access to Council and Commission documents (OJ 1993 L 340, p. 41), the Court has moreover already rejected as insufficient an assessment relating to documents which is carried out by reference to categories rather than on the basis of the actual information contained in those documents, since the examination required of an institution must enable it to assess specifically whether an exception invoked actually applies to all the information contained in those documents (Case T‑123/99 JT’s Corporation v Commission [2000] ECR II‑3269, paragraph 46; Case T‑2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121 paragraph 73; and Franchet and Byk v Commission, paragraph 117). 125 It is in the light of those principles that it is appropriate to consider the application by the Commission of Article 4 of Regulation No 1049/2001 in order to refuse access to the documents requested. 126 In accordance with the first indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine protection of the commercial interests of a specific natural or legal person, unless there is an overriding public interest in disclosure. 127 In the present case, the Commission relied on the exception concerning the undermining of the commercial interests of the operators in order to refuse access to the lists specifying, for each operator, the quantity of bananas imported during the period 1994 to 1996 and the provisional reference quantity attributed, for the years 1999 and 2000, whilst pointing out, in the last paragraph of point 3 of the decision of 10 August 2004, that, for the purposes of Regulation No 2362/98, no list of traditional operators exists for the year 1998. 128 First of all, it should be noted that those documents contain confidential information concerning banana importing companies and their commercial activities and must accordingly be considered to fall within the scope of the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001. 129 Secondly, as regards the question whether the Commission examined whether disclosure of the documents concerned would specifically and actually undermine the protected interest – which the applicant disputes, relying on the general nature of the justification put forward in the decision of 10 August 2004 – it should be borne in mind that the Commission stated in point 4 of the decision that disclosure of the documents could ‘undermine the commercial interests of operators, since they would make public the reference quantities attributed to each operator as well as the quantities actually imported by each operator’. 130 It is, in principle, open to the Commission to base its decisions in that regard on general presumptions which apply to certain categories of document, since considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. It is nevertheless incumbent on the Commission to determine in each case whether the general considerations normally applicable to a particular type of document are in fact applicable to a specific document which it has been asked to disclose (see, by analogy, Sweden and Turco v Council, paragraph 50). 131 The documents at issue in the present case concern two specific factors in the common organisation of the market in bananas: for each traditional operator, the quantities of bananas imported and the quantities which the operator is authorised to import. That information enables the commercial activity of the undertakings importing bananas into the Community to be determined. It is difficult to imagine how the Commission could have set out a specific, individual examination of each document without presenting the figures concerned. It must be stated, moreover, that – as is apparent from the list of operators to which the Commission granted access – the applicant is seeking, for the years 1999 and 2000, disclosure of information concerning the imports made by 622 competitor undertakings established in 15 Member States. A specific, individual examination concerning each of those figures, or even concerning each list sent by each Member State, would not enable reasons to be given justifying the need for confidentiality in respect of each individual document without disclosing the content of the document and thereby defeating the very purpose of the exception (see, by analogy, WWF UK v Commission, paragraph 65). 132 With regard to the applicant’s argument that disclosure of the documents requested cannot undermine the commercial interests of other operators, since the banana trade sector does not constitute a market open to free competition, it must be held that, according to that line of argument, no document concerning the common organisation of the market would fall within the scope of the first indent of Article 4(2) of Regulation No 1049/2001. Moreover, even within a common organisation of the market, the disclosure of provisional reference quantities and their actual use can undermine the commercial interests of the undertakings concerned, since that information makes it possible to determine in the abstract the maximum volume of operators’ activities, as well as the actual volume of activity, and to assess the competitive position of those operators, together with the success of their commercial strategies. 133 Moreover, it is necessary to determine whether that risk must, as the applicant claims, be weighed against an overriding public interest (Sweden and Turco v Council, paragraph 67, and Case T‑166/05 Borax Europe v Commission [2009] ECR II‑0000, paragraph 51; see also paragraph 124 above). The aim behind the application for access to the documents is that of verifying the existence of fraudulent practices on the part of the applicant’s competitors. The applicant thus pursues, amongst other objectives, the protection of its commercial interests. However, it is not possible to categorise the applicant’s commercial interests as being an ‘overriding public interest’ which prevails over the protection of the commercial interests of traditional operators, the objective underlying the refusal of access to a part of the documents requested. In addition, the pursuit of the public interest in identifying cases of fraud in order to ensure the smooth operation of the banana market is not a matter for the operators, but for the competent Community and national public authorities, where appropriate following an application made by an operator. 134 In addition, the applicant relies on Article 4(7) of Regulation No 1049/2001 and claims that the quantities imported from 1994 to 1996 and from 1998 to 2000 should no longer benefit from protection. 135 Article 4(7) of Regulation No 1049/2001 provides: ‘The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’ 136 It follows from that provision that documents the disclosure of which would undermine commercial interests benefit from special protection, since access to them may be prohibited for a period of more than 30 years. However, such protection must, in any event, be justified in the light of the content of those documents. 137 The documents to which access is requested go to the heart of the importing business, since they indicate the market shares, commercial strategy and sales policy of the undertakings in question. The content of those documents thus justifies a period of protection. 138 It follows from Articles 3 and 4 of Regulation No 2362/98 and Article 1 of Commission Regulation (EC) No 250/2000 of 1 February 2000 on imports of bananas under the tariff quotas and of traditional ACP bananas, and fixing the indicative quantities for the second quarter of 2000 (OJ 2000 L 26, p. 6), that, for traditional operators, actual imports between 1994 and 1996 served as the basis for determining the reference quantities for the years 1999 and 2000. Thus, even imports carried out in 1994 had a direct influence on the reference quantities for the year 2000. 139 The date which must be singled out for the purposes of reviewing the lawfulness of the Commission decision is that of its adoption. On 10 August 2004, the Commission’s examination concerned documents dating from four years earlier. In that way, since the figures from 1994 influence those for 2000 and the refusal of access dates from 2004, a period of four years must be regarded as a period during which protection of the commercial interests concerned is justified. 140 The application by the Commission of the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001 must accordingly be considered to be justified. 141 The second part of the third plea must therefore be rejected. The third part, alleging that the partial refusal of access to certain documents was erroneous and contradictory – Arguments of the parties 142 The applicant claims that the decision of 10 August 2004 is also unlawful in the light of the principle of proportionality, according to which the institutions have a duty to ensure partial access to documents requested where full access is not possible. 143 The applicant also refers to Article 4(6) of Regulation No 1049/2001, which expressly provides that, if only parts of the requested document are covered by any of the exceptions, the remaining parts of the document are to be released. The applicant maintains that that principle of partial access applies also if an application concerns a number of documents. 144 The applicant infers from this that the Commission should in any event have granted it access to documents from Member States which did not raise objections to disclosure of the documents requested, namely the Republic of Austria, the Hellenic Republic, the Kingdom of Sweden, the Kingdom of Denmark and the Grand Duchy of Luxembourg. It accuses the Commission of treating the case superficially, since it was not until the stage of the defence that the Commission stated that the last two Member States were in favour of the documents being disclosed. 145 The Commission contends that its decision of 10 August 2004 in fact guaranteed the applicant partial access to the documents requested, since that decision was sent to the applicant with the list of traditional operators registered in the Community for the year 2000, which is identical to that for the year 1999. In those circumstances, the present part has now become devoid of purpose. 146 With regard to the applicant’s application for partial access to the documents from the Member States which are not opposed to disclosure, the Commission notes that those documents, as indicated in the decision of 10 August 2004, fall within the exception concerning protection of the commercial interests of operators and cannot therefore be disclosed. The fact that the Member States responsible for authorship of the documents concerned have raised no objection is not, in itself, a sufficient reason for the Commission to authorise their disclosure. – Findings of the Court 147 It should be pointed out that the Commission did in fact give the applicant access to some of the documents referred to in paragraph 14 above – that is to say, the list of traditional operators registered for the year 2000, which is identical to that for the year 1999 – without, however, specifying the quantities imported by each traditional operator between 1994 and 1996. The Commission contends that there is no list of traditional operators for the year 1998. 148 With regard to the documents from Member States which are not opposed to their disclosure, it should be borne in mind that the Commission relied, independently, on the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001. In that regard and in the light of the examination of the second plea, the decision of 10 August 2004 is explained by the fact that the nature of the information contained in the documents requested is identical, irrespective of which Member State is the origin of the document; that is to say, the information consists in the figures corresponding to the quantities imported by each operator during the period from 1994 to 1996 and to the provisional reference quantity attributed to each operator for the years 1999 and 2000. The finding that the disclosure of that information would undermine the commercial interests of the other banana importing undertakings is thus valid for all the documents from the Member States. 149 The third part of the third plea must therefore be rejected and, accordingly, the third plea must be rejected in its entirety. The fourth plea: lack of a decision concerning the licences Arguments of the parties 150 The applicant disputes point 2 of the decision of 10 August 2004, by which the Commission expressly refuses access to the documents referred to in point (c) of the initial application. 151 The applicant disputes the Commission’s contention that it was not in possession of the import licences issued to each operator during the years 1998, 1999 and 2000 or proof of their use. The applicant refers to the judgment in Co‑Frutta I, paragraphs 44 and 45, which, it claims, established that at least the documents concerning the period from 1998 to 1999 were sent to the Commission by the Member States. 152 The Commission contends that it does not have the documents referred to in point (c) of the initial application. It states that the only information sent to it by the Member States pursuant to Regulation No 2362/98 was in the form of global data on the use of import licences from the years 1998, 1999 and 2000 and not individual data for each operator. Moreover, there is no data for 1998, since the definition of traditional operator did not exist under Regulation No 1442/93, then in force. 153 The Commission contends that it cannot be inferred from the judgment in Co‑Frutta I that it was in possession of the documents referred to in point (c) of the initial application. Findings of the Court 154 The Commission has consistently stated that it was not in possession of the documents referred to in point (c) of the initial application, that is to say, the licences issued to each operator in the course of the years 1998, 1999 and 2000 and the corresponding uses. 155 In accordance with the case-law of this Court, a presumption of legality attaches to any statement made by the institutions relating to the non-existence of documents requested. That is, however, a simple presumption which the applicant may rebut in any way on the basis of relevant and consistent evidence (see Joined Cases T‑110/03, T‑150/03 and T‑405/03 Sison v Council [2005] ECR II‑1429, paragraph 29 and the case-law cited, and Terezakis v Commission, paragraph 155). That presumption must be applied by analogy where the institution declares that it is not in possession of the documents requested. 156 With regard to the only evidence relied on by the applicant, an inference from the judgment in Co‑Frutta I, it should first be stated that the information referred to in that judgment concern exclusively the years 1998 and 1999. Next, as regards the year 1998, paragraph 46 of that judgment establishes that under Article 4(4) and (5) and Article 21 of Regulation No 1442/93 the Member States are to notify to the Commission the lists of all the registered operators, as well as global data concerning the quantities relating to import licences issued and those relating to licences used, collected on a quarterly national basis, and by operator category. Accordingly, the individual data are not submitted to the Commission under those provisions. As regards the year 1999, reference is made in paragraph 46 of the judgment in Co‑Frutta I to Regulation No 2362/98. However, as regards the traditional operators, Article 28(2)(a) of Regulation No 2362/98 states that the Member States are to send the Commission the lists of operators, with the specification, for each traditional operator, of the quantity of bananas imported during the years 1994 to 1996 and of their provisional reference quantities. This means that those documents do not contain the information referred to by the applicant in point (c) of the initial application. 157 It follows that, in the absence of relevant and consistent evidence to the contrary, the Commission’s statement – to the effect that it is not in possession of the documents referred to point (c) of the initial application – must be regarded as correct (see, to that effect and by analogy, Terezakis v Commission, paragraphs 162 to 167). 158 The plea must therefore be rejected as unfounded and, accordingly, the action must be dismissed in its entirety. 159 Lastly, with regard to the measures of inquiry sought by the applicant, it follows from the documents in the case-file and from all the foregoing that those measures would serve no purpose in relation to the outcome of the dispute. Consequently, the claim that the Court should order measures of inquiry must be rejected. Costs 160 Under Article 87(2) of the Rules of Procedure of the General Court, 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, and the Commission has applied for costs, the applicant must be ordered to pay the costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Declares that there is no need to adjudicate on the action in Case T‑355/04; 2. Dismisses the action in Case T‑446/04; 3. Orders Co-Frutta Soc. coop. to pay the costs. Pelikánová Jürimäe Soldevila Fragoso Delivered in open court in Luxembourg on 19 January 2010. [Signatures] * Language of the case: Italian.