62021TJ0377_RES
Case T‑377/21
Eurecna SpA
v
European Commission
Judgment of the General Court (Ninth Chamber), 12 July 2023
(Access to documents – Regulation (EC) No 1049/2001 – Final report of the investigation by OLAF into the performance of a service contract financed by the EDF – Refusal to grant access – Exception relating to the protection of the decision-making process – Exception relating to protection of the purpose of inspections, investigations and audits – General presumption – Obligation to state reasons)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Requirement that the institution should examine the documents specifically and individually – None – Possibility of relying on general presumptions applicable to certain categories of documents – Obligation to state reasons – Scope – Statement of reasons limited to reliance on the exception concerned
(European Parliament and Council Regulation No 1049/2001, Art. 4(2))
(see paragraphs 26-28, 40, 60, 61, 84)
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 relating to an investigation by the European Anti-Fraud Office (OLAF) – General presumption that disclosure of the said documents will undermine protection of the interests involved in such an investigation – Application after the closure of those activities – Conditions
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent)
(see paragraphs 32-36, 43, 50-53, 57)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Protection of documents drawn up under a procedure already closed – Scope – Refusal to grant access – Obligation to state reasons – Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), second subpara.)
(see paragraphs 64-66, 68, 69)
Résumé
The applicant is a company active in the provision of IT-related services. In 2014, the Association of Overseas Countries and Territories of the European Union (OCTA) signed a service contract with it, financed by the European Development Fund (EDF), which was aimed at strengthening sustainable development and economic diversification and improving the competitiveness of overseas countries and territories.
In 2020, in response to a request from the European Commission for review of possible irregularities in the performance of that contract, the European Anti-Fraud Office (OLAF) opened an investigation.
By letter of 4 December 2020, OLAF informed the applicant that the final report on the investigation had been sent to the Venice Public Prosecutor’s Office (Italy) and to the Commission’s Directorate-General for International Cooperation and Development. That report was accompanied by recommendations concerning follow-up measures involving, inter alia, the opening of a criminal investigation for fraud and the recovery of sums paid and found to be ineligible on account of missing invoices and unjustified costs on the part of the applicant. In 2021, the applicant requested access to OLAF’s final report and the annexes thereto. Shortly after that request was made, it received a pre-information letter from the Commission informing it of the commencement of the recovery procedure. By its decision of 26 April 2021, OLAF refused access to the requested documents, relying on the application of the general presumption of confidentiality recognised for documents relating to its investigations (‘the contested decision’).
Hearing an action for annulment of that decision, the General Court analyses the relationship between the principles stemming from the case-law relating to the obligation to state reasons and those concerning the general presumption of confidentiality recognised for documents relating to OLAF investigations, under the exception relating to the protection of the purpose of inspections. (
1
) Drawing inspiration from the case-law according to which the protection of such investigations extends to their follow-up in so far as it is carried out within a reasonable period, the Court observes that the statement of reasons for a decision refusing access must contain information demonstrating OLAF’s reasoning as to the temporal application of that general presumption of confidentiality. (
2
) Finding, in the present case, that the statement of reasons for the contested decision is inadequate on that point, the Court accordingly annuls it.
Findings of the Court
In the first place, the Court finds that the statement of reasons for the contested decision enabled the applicant to understand that OLAF relied on the general presumption of confidentiality in order to refuse disclosure of the requested documents. It is apparent from the contested decision that OLAF considered that the documents requested fell within the exception relating to the protection of the purpose of inspections, by reason of a general presumption of non-accessibility to documents relating to its investigations.
In the second place, the Court notes that, in the absence of the necessary information, the applicant was not, however, in a position to understand the reasons why, on the date of adoption of the contested decision, OLAF considered that the requested documents were covered by that general presumption of confidentiality.
Although the contested decision states that those documents form part of OLAF’s investigation file, OLAF merely states, in that decision, that that investigation was closed and that its final report was sent to the Commission and the Venice Public Prosecutor’s Office, accompanied by recommendations on possible follow-up actions. However, the reasons given in the contested decision do not mention the fact that, prior to its adoption, which occurred after the transmission of the OLAF report, the Commission sent a pre-information letter to the applicant with a view to recovering most of the sums paid and found to be ineligible. According to the Court, that undertaking by the Commission of the recovery procedure may be considered a follow-up action in respect of one of the recommendations of the OLAF report and, therefore, as a decision marking the closure of the investigation. Given the silence of the contested decision on that point, it may be presumed that OLAF considered that the pre-information letter from the Commission had neither the object nor the effect of closing the investigation and that, on the date of adoption of the contested decision, the authorities to which its final report was addressed had not yet decided, within a reasonable period, on the action to be taken following that report.
In that context, the Court observes that, in the statement of reasons in the contested decision, OLAF ought to have taken a position on whether the period which elapsed between the date of transmission of its report to the authorities to which it was addressed and the date of adoption of that decision was to be regarded as reasonable. It points out in that regard that, although documents relating to an OLAF investigation which has just been closed benefit from the general presumption of confidentiality where the competent authorities have not yet decided on the action to be taken on the corresponding investigation report, that is on the condition that, on the date of adoption of the decision refusing disclosure of those documents, the period which elapsed since the transmission of the OLAF report to the competent authorities cannot be regarded as unreasonable. (
3
) In the present case, although it may be presumed that OLAF considered that the period which had elapsed was not unreasonable, the reasons for such an interpretation are not apparent from the contested decision.
In the third and last place, the Court finds that, in view of the incomplete nature of the reasoning contained in the contested decision, that decision does not enable the Court to assess the merits of the applicant’s second plea, according to which OLAF had not established the existence of a presumption of confidentiality of the documents requested on the basis of the exception relating to the protection of the purpose of inspections, investigations and audits and nor, therefore, to exercise its power of review of legality.
In that regard, the Court observes that there is neither a right of the EU institutions to remedy before the EU Courts their insufficiently reasoned decisions, nor an obligation on the part of the latter to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied. Such a state of law would risk blurring the division of powers between the administration and the EU Courts, weakening the review of legality and jeopardising the exercise of the right of appeal. (
4
)
Furthermore, even if it is accepted that the additional explanations provided by the Commission in the course of the proceedings may be regarded not as supplementary reasons for the contested decision, but as clarifications necessary to fully understand the analysis underpinning OLAF’s reasoning, the Court finds that, in the context of judicial proceedings, the Commission neither adopted a position on whether the pre-information letter constituted a follow-up action entailing the closure of the investigation nor, if so, set out the reasons why the transmission of the OLAF report to the Venice Public Prosecutor’s Office had the effect of extending the general presumption of confidentiality. Lastly, the Commission did not adopt a position on the question whether, on the date of adoption of the contested decision, a reasonable period had elapsed since the documents requested were sent to the Commission and the Venice Public Prosecutor’s Office.
(
1
)	Pursuant to the third indent of Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
(
2
)	See, to that effect, judgments of 19 December 2019, ECB v Espírito Santo Financial(Portugal) (C‑442/18 P, EU:C:2019:1117, paragraph 55), and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group (C‑396/19 P, not published, EU:C:2020:845, paragraph 62).
(
3
)	See judgment of 1 September 2021, Homoki v Commission (T‑517/19, not published, EU:T:2021:529, paragraph 63 and the case-law cited).
(
4
)	See judgment of 11 June 2020, Commission v Di Bernardo (C-114/19 P, EU:C:2020:457, paragraph 58).