62011TJ0480_EN
Parties
Grounds
Operative part
Parties
In Case T‑480/11,
Technion — Israel Institute of Technology, established in Haifa (Israel),
Technion Research & Development Foundation Ltd, established in Haifa,
represented initially by D. Grisay and D. Piccininno, and subsequently by D. Grisay and C. Hartman, lawyers,
applicants,
v
European Commission, represented initially by P. Costa de Oliveira and C. ten Dam, then by F. Clotuche-Duvieusart, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s Decision of 30 June 2011 refusing Technion — Israel Institute of Technology access to documents taken into consideration in the context of a financial audit on the performance of certain research contracts concluded during the course of the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006),
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová and E. Buttigieg (Rapporteur), Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 14 May 2014,
gives the following
Judgment
Grounds
Background to the dispute
1. The applicants, Technion — Israel Institute of Technology and Technion Research & Development Foundation Ltd (‘TRDF’), are two bodies active in teaching and research. Specifically, Technion is a higher education institution in the field of technology, founded in 1912, whereas TRDF was founded by Technion in 1952 as its wholly owned subsidiary and is entirely funded by the latter; TRDF manages the administrative and financial aspects of the projects in which Technion is involved.
2. In December 2003 and in July 2006, Technion, as a member of various consortia of contractors, concluded four contracts with the Commission of the European Communities during the course of the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006), namely, the Terregov contract, signed on 3 December 2003 (Contract No 507749), the Cocoon contract, signed on 11 December 2003 (Contract No 507126), the Qualeg contract, signed on 17 December 2003 (Contract No 507767), and the Mosaica contract, signed on 24 July 2006 (Contract No 034984).
3. By letter of 29 April 2009, the Commission informed Technion of its decision to carry out a financial audit on the costs claimed in the context of the Mosaica, Cocoon and Qualeg contracts, pursuant to Article II.29 of the General Conditions, which appear in Annex II to these contracts. The audit was to be carried out by an external auditing company (‘the auditor’) acting as the Commission’s representative.
4. On 10 May 2010, the auditor sent a copy of the draft audit report to Technion. For each of the contracts which were ultimately audited — Terregov, Cocoon, Qualeg and Mosaica — the auditor proposed an adjustment to the costs claimed by Technion from the Commission.
5. As far as the Cocoon, Terregov and Mosaica contracts in particular were concerned, the proposed adjustments related inter alia to the staff costs claimed by Technion for services performed by Mr K., who was said to have been employed by Technion on a temporary basis for the performance of these contracts. The auditor observed that Mr K. was working for several bodies at the same time during the period audited, despite the fact that he had been hired to work full time at Technion. This situation, corroborated by other facts, meant, according to the auditor, that it was impossible to ascertain that the time and the costs claimed from the Commission by Technion for services performed by Mr K. reflected actual time and costs. Consequently, the draft audit report found that, inter alia, all Technion’s claims for staff costs for services performed by Mr K. in connection with the three contracts mentioned above should be rejected.
6. On 10 June 2010, Technion sent a letter to the auditor requesting a 15-day extension of the time-limit for submitting its comments on the draft audit report. Technion also asked the auditor to provide it with all information relating to services performed by Mr K. for bodies other than Technion while he was employed full time by the latter.
7. By letter of 19 July 2010, the Commission granted the extension requested. The Commission also explained that it was unable to provide copies of administrative or financial documents relating to the services performed by Mr K. for bodies other than Technion (‘the documents at issue’), since these documents had been received in the context of financial audits which, according to the relevant contractual provisions, had been carried out on a confidential basis. Nevertheless, the Commission confirmed that it had evidence of services performed by Mr K. for bodies other than Technion during the period under audit and for which amounts had been claimed in projects funded by the European Union.
8. By letter of 13 August 2010, Technion disputed the Commission’s refusal to send it copies of the documents at issue, contending that no exception contained in 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) could justify that refusal. It therefore stated that it was maintaining its request for access to the documents at issue. It also asked the Commission about the possibility of obtaining partial access to the documents at issue and pointed out, for the sake of completeness, that the evidence mentioned in the draft audit and in the Commission’s letter of 19 July 2010 did not prove the allegations against Mr K. to the requisite legal standard.
9. The Commission replied by letter of 4 October 2010. In that letter, the Commission stated that, in respect of the EU-funded projects in which Technion was involved and for which amounts corresponding to the services performed by Mr K. had been claimed by bodies other than Technion, it could send Technion a copy of the project management reports (‘PMRs’) on the ground that these had been drawn up by consortia of which Technion was a member and the latter was, therefore, aware of their contents. The Commission annexed copies of the PMRs relating to the Qualeg and Mosaica projects to that letter.
10. On the other hand, the Commission stated that documents obtained in the context of audits carried out on members of other consortia, relating to projects in which Technion was not participating, and documents obtained in the context of an investigation were covered by the exception provided for in Article 4 of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits. According to the Commission, as the investigation was still in progress, disclosure of the documents at issue could be detrimental to its proper conduct and affect the interests of the parties.
11. In its letter of 4 October 2010, the Commission also referred to the possibility of Technion making a confirmatory application to the Secretary-General of the Commission for access to the documents at issue.
12. By letter of 18 October 2010, Technion made a confirmatory application for access to the documents at issue. In this letter, it submitted inter alia that disclosure of the documents at issue — which it defined as ‘the documents on which the auditors based their finding that all the costs incurred in paying Mr K. should be refused’ — would not jeopardise the current and future proper conduct of the various audit procedures, but, on the contrary, would enable Technion to clarify points of information contained in these documents and would allow the Commission to be better informed as to how the different projects had been implemented. Technion again asked the Commission about the possibility of obtaining, at the very least, partial access to the documents at issue.
13. By letter of 19 October 2010 to the Commission, Technion pointed out that the Commission’s position prevented Technion from making observations regarding the content of the documents at issue on the basis of which the draft audit report had found that all claims for amounts relating to services performed by Mr K. should be rejected. Technion added that the information sent by the Commission in the letters of 19 July and 4 October 2010 did not prove the allegations against Mr K. to the requisite legal standard.
14. By letter of 26 October 2010, the Secretariat-General of the Commission acknowledged receipt of the confirmatory application for access to the documents at issue and informed Technion that a reply to its application would be sent within 15 working days.
15. By letters of 18 November and 9 December 2010, the Secretariat-General of the Commission stated that it would have to extend the time-limit provided for in Article 8(1) of Regulation No 1049/2001 in order to respond to this application for access to the documents at issue.
16. By decision of 30 June 2011 (‘the contested decision’), the Secretary-General of the Commission confirmed the refusal to grant access to the documents at issue.
17. First, the Secretary-General of the Commission clarified the scope of the application for access to the documents at issue, concluding that this application covered, inter alia, documents concerning bodies other than Technion, obtained and assembled in the context of the investigation. On this basis, the Commission had identified 52 third-party administrative documents containing financial or contractual information, which confirmed the allegations against Mr K. These documents, originating from audits of these other bodies, formed part of the evidence which had contributed to the findings of the audit of Technion.
18. Secondly, the Secretary-General of the Commission explained that it was impossible to describe the documents concerned without disclosing their contents.
19. Thirdly, the Secretary-General of the Commission stated that all the 52 documents in question were manifestly covered by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits. Disclosure of these documents would be detrimental to the proper conduct of the audits and prevent the Commission from reaching conclusions and, if necessary, taking appropriate monitoring measures.
20. Fourthly, the Secretary-General of the Commission stated that the documents requested, inasmuch as they contained personal data on Mr K. and other people, could not be disclosed, since they were also covered by the exception referred to in Article 4(1)(b) of Regulation No 1049/2001, relating to protection of privacy and the integrity of the individual.
21. Fifthly, the Secretary-General of the Commission indicated that partial access to the documents requested was not possible, given that they were covered in their entirety by the two exceptions mentioned above.
22. Finally, sixthly, the Secretary-General of the Commission noted that Technion’s interest in access to the documents at issue was a private interest and could not, therefore, be taken into account within the framework of the analysis carried out on the basis of Regulation No 1049/2001. The Commission considered that Technion had failed to show the existence of a public interest which would override the damage caused by disclosure, thereby justifying this disclosure, and nor did the Commission have any evidence demonstrating such an interest. The Secretary-General of the Commission therefore concluded that, in the present case, the predominant interest was that of protecting the audit and any possible administrative consequences.
23. By letter of 2 August 2011, the Commission informed Technion that it was confirming the findings of the audit carried out and considered the latter to be closed. It indicated, in addition, that it would adjust the costs improperly claimed and that this adjustment could affect future payments due to Technion or lead to the adoption of a recovery order against it.
Procedure and forms of order sought
24. By application lodged at the Court Registry on 9 September 2011, the applicants brought the present action.
25. By documents lodged at the Court Registry on 22 December 2011 and 9 January 2012 respectively, the Kingdom of Denmark and the Republic of Finland applied for leave to intervene in support of the form of order sought by the applicants.
26. By order of the President of the First Chamber of the General Court of 12 March 2012, leave to intervene was granted in each case.
27. By documents lodged at the Court Registry on 13 and 30 April 2012 respectively, the Kingdom of Denmark and the Republic of Finland informed the Court that they were withdrawing their interventions.
28. By order of the President of the First Chamber of 21 June 2012, the Republic of Finland and the Kingdom of Denmark were removed from the case as interveners.
29. Upon hearing the Report of the Judge-Rapporteur, the General Court (First Chamber) decided to open the oral procedure and, in respect of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put some written questions to the parties, who answered them within the prescribed period.
30. The parties presented their oral arguments and gave their replies to the questions asked by the Court at the hearing on 14 May 2014.
31. The oral procedure was closed by decision of the President of the First Chamber on 13 July 2014, after the Commission had produced, within the prescribed period, certain documents requested by the Court during the hearing, under Article 64 of the Rules of Procedure, and the applicants had submitted their observations on those documents.
32. The applicants claim that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
33. The Commission contends that the Court should:
– dismiss the action as inadmissible in relation to TRDF;
– dismiss the action as unfounded in relation to Technion;
– order the applicants to pay the costs.
Law
Admissibility of the action in relation to TRDF
34. Without formally submitting a plea of inadmissibility pursuant to Article 114 of the Rules of Procedure, the Commission contends that the action is inadmissible as regards TRDF inasmuch as the contested decision is not of direct concern to TRDF within the meaning of the fourth paragraph of Article 263 TFEU.
35. In that respect, it must be noted that it is for the General Court to assess what is required in the circumstances of the case for the proper administration of justice (judgment of 26 February 2002 in Council
v Boehringer, C‑23/00 P, ECR, EU:C:2002:118, paragraphs 50 to 52). In the present case, the General Court considers it appropriate to rule first of all on the substance of the action.
Substance
Preliminary observations
36. Four pleas in law are raised in support of the present action. The first plea in law alleges that the Commission failed to carry out a specific and individual examination of the documents at issue. The second plea in law alleges a manifest error of assessment by the Commission in the application of the two exceptions relied upon in refusing access to the documents at issue. The third plea in law alleges infringement of Article 4(6) of Regulation No 1049/2001, in that the Commission did not grant partial access to the documents at issue. The fourth plea in law alleges infringement of the principle of proportionality, in so far as the Commission failed to weigh the exceptions invoked against the public interest.
37. It is appropriate to begin by considering the pleas in so far as they seek to apply the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits.
Application of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001
38. First of all, the first three pleas for annulment relied upon should be examined together. The fourth plea will be examined subsequently.
– The first, second and third pleas in law, alleging, respectively, that the Commission failed to carry out a specific and individual examination of the documents at issue, that it made a manifest error of assessment in the application of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and that it infringed Article 4(6) of Regulation No 1049/2001
39. In connection with the first and third pleas in law, the applicants claim that the Commission did not carry out a specific and individual examination of the documents at issue. According to the applicants, the Commission, in referring to a category of documents, namely documents pertaining to an audit, rather than to the actual information contained in the documents at issue, gave inadequate reasons for the contested decision. The consequence of the failure to carry out a specific and individual examination of the documents at issue is that the Commission was unable to assess the possibility of granting Technion partial access, and thus infringed Article 4(6) of Regulation No 1049/2001.
40. In connection with the second plea in law, the applicants claim, in essence, that the considerations relied upon in the contested decision, with a view to demonstrating that disclosure of the documents at issue would undermine the purpose of inspections, investigations and audits, are marred by manifest errors of assessment.
41. The Commission challenges all the applicants’ arguments.
42. Regulation No 1049/2001 defines the principles, conditions and limits governing the right of access to documents of the EU institutions provided for in Article 15 TFEU. According to Article 4(2) and (6) of the Regulation:
‘2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
…
– the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.
…
6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.’
43. According to settled case-law, exceptions in regard to access to documents must be construed and applied strictly so as not to defeat the general principle of giving the public the widest possible access to documents held by the EU institutions (judgments of 18 December 2007 in Sweden
v Commission, C‑64/05 P, ECR, EU:C:2007:802, paragraph 66; 1 July 2008 in Sweden and Turkey
v Council, C‑39/05 P and C‑52/05 P, ECR, EU:C:2008:374, paragraph 36; and 6 July 2006 in Franchet and Byk
v Commission, T‑391/03 and T‑70/04, ECR, EU:T:2006:190, paragraph 84).
44. What is more, it has been made clear that the examination of a request for access to documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception (see judgment of 13 April 2005 in Verein für Konsumenteninformation
v Commission, T‑2/03, ECR, ‘judgment in VKI ’, EU:T:2005:125, paragraph 69 and the case-law cited). Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether 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, there is no overriding public interest in disclosure. On the other hand, the risk of a protected interest being undermined must be reasonably foreseeable and not purely hypothetical (see judgment in VKI, EU:T:2005:125, paragraph 69 and the case-law cited).
45. That specific examination must be apparent from the reasons for the decision (see judgment in VKI, cited in paragraph 44 above, EU:T:2005:125, paragraph 69 and the case-law cited).
46. That specific examination must, moreover, be carried out in respect of each document referred to in the request for access. It is apparent from Regulation No 1049/2001 that all the exceptions mentioned in Article 4(1) to (3) are specified as being applicable to ‘a document’ (judgment in VKI, cited in paragraph 44 above, EU:T:2005:125, paragraph 70).
47. 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 the possibility of granting the applicant partial access under Article 4(6) of Regulation No 1049/2001 (judgment of 7 June 2011 in Toland
v Parliament, T‑471/08, ECR, EU:T:2011:252, paragraph 30).
48. At the same time, according to case-law, there are exceptions to the obligation of the institution concerned to carry out a concrete, individual examination of the documents to which access has been requested and, therefore, to its obligation to describe them with sufficient precision and to provide a detailed statement of reasons in relation to the content of each document concerned. In particular, the General Court has repeatedly held that, since the purpose of the concrete, individual examination which the institution must in principle undertake in response to a request for access made under Regulation No 1049/2001 is to enable the institution in question to assess, on the one hand, the extent to which an exception to the right of access is applicable and, on the other, the possibility of partial access, such an examination may not be necessary where, due to the particular circumstances of the individual case, it is obvious that access must be refused or, on the contrary, granted. Such could be the case, inter alia, if certain documents were either, first, manifestly covered in their entirety by an exception to the right of access or, conversely, manifestly accessible in their entirety, or, finally, had already been the subject of a concrete and individual assessment by the Commission in similar circumstances (judgment in VKI, cited in paragraph 44 above, EU:T:2005:125, paragraph 75; judgments of 12 September 2007 in API
v Commission, T‑36/04, ECR, EU:T:2007:258, paragraph 58; and 9 September 2011 in LPN
v Commission, T‑29/08, ECR, EU:T:2011:448, paragraph 114).
49. It follows that, in considering the pleas alleging infringement of the provisions of Article 4 of Regulation No 1049/2001, it is the task of the Court to review whether the Commission has either undertaken a concrete, individual examination of each of the documents requested or shown that the documents to which access was refused were manifestly covered in their entirety by an exception (see, to that effect, judgment of 20 March 2014 in Reagens
v Commission, T‑181/10, EU:T:2014:139, paragraph 65).
50. In the present case, it should be borne in mind that the scope of the request for access to the documents at issue on the basis of Regulation No 1049/2001, as referred to in the initial reply (see paragraph 9 above) and — since it was not disputed by Technion — repeated in the contested decision (see paragraph 17 above), covered documents provided by bodies other than Technion and concerning those bodies, on which the auditor had based its provisional finding, contained in the draft audit report, that the costs claimed from the Commission by Technion for Mr K.’s services were ineligible. As is apparent from the letter of 19 October 2010 in particular, Technion has asserted that the refusal of its request for access to these documents prevented it from defending its rights in the context of the audit procedure, in which all parties could set out their views.
51. In the contested decision, the Commission stated that:
‘On [the] basis [of the request for access], we identified 52 third-party administrative documents containing contractual and/or financial information which confirmed that [Mr K.] had simultaneously participated in research projects for legal entities other than Technion, during the same periods as those in which he was contributing to projects for Technion. These documents, originating from audits of these other bodies, form part of the evidence that contributed to the findings of the Technion audit.’
52. Next, the Commission stated that it was impossible, in the present case, to describe the documents at issue without disclosing their contents. It explained that, in so far as Technion’s request concerned access to documents which pertained to audits, identifying them and describing them in detail in the contested decision in order to substantiate the confidentiality of their contents could undermine the audits and, consequently, deprive the relevant exceptions of their essential purpose.
53. The Commission then confirmed that the documents at issue were, at that stage, manifestly covered, in their entirety, by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001. Thus, the Commission considered that disclosure of these documents, which, in their entirety, formed part of the administrative file of the audits, would be detrimental to the proper conduct of these audits and prevent the Commission from reaching conclusions and taking appropriate monitoring measures, if necessary.
54. The Commission stated, more specifically, that disclosure of the documents at issue might enable the persons concerned to act in such a way as to hinder the proper conduct of the audits in question and the taking of appropriate monitoring measures. It indicated, in addition, that this disclosure would reveal the Commission’s strategy to the public, as well as to the bodies concerned, thus rendering not only ongoing audits but also other investigations and possible monitoring measures ineffective. Finally, the Commission pointed out that its departments must be able to conduct audits independently, without being exposed to outside pressures.
55. The Commission’s conclusion that the documents at issue, of which — the Commission’s examination showed — there were 52, were manifestly covered, in their entirety, by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 must be upheld.
56. First, it must be noted that Technion made a general and comprehensive request for access, under Regulation No 1049/2001, to documents provided by bodies other than Technion and concerning those bodies — that is, the documents on which the auditor based its provisional findings, in the draft audit report, about the true situation relating to the costs claimed from the Commission by Technion for Mr K.’s services. Thus, it is clear from the actual wording of the request for access that this request manifestly related to documents which all formed part of the administrative file of the Technion audit and which, as a consequence, fell within the scope of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001.
57. Secondly, in respect of the merits of applying the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, it must be noted that the Technion audit was still in progress at the time when the contested decision was adopted. This situation increased the foreseeable risk that disclosure of the documents at issue to the public would undermine the purpose of the audit, which was, in this instance, to check that the costs claimed by Technion had been incurred of necessity and were eligible and, ultimately, to protect the European Union’s financial interests. As the Commission noted in the contested decision, this disclosure would expose the auditor and the relevant Commission departments to the foreseeable risk of coming under outside pressures, which might undermine the effectiveness of the Technion audit. This disclosure might also restrict the Commission’s freedom to carry out audits and further investigations on the basis of the findings of the Technion audit, once the latter was finalised and closed.
58. In addition, under Article II.29 of the General Conditions, which appear in Annex II to the Mosaica, Cocoon and Qualeg contracts, the audit undertaken on behalf of the Commission must be carried out on a confidential basis, which means, as the parties confirmed in their replies to a written question from the Court, that, pursuant to that clause, the documents and information made available to the auditor cannot be disclosed or released to persons not party to the contract. Therefore disclosure of the documents on the basis of Regulation No 1049/2001 would undermine the very existence of that clause of the contract, inasmuch as it would allow persons not party to the contract, namely the general public, access to the abovementioned documents.
59. It follows from the foregoing considerations that, in the circumstances of the present case as they relate to the wording of the request for access, to the fact that this request concerned documents that belonged to the administrative file of the Technion audit and to the fact that this audit was still in progress at the time when the contested decision was adopted, the Commission was entitled to take the view, without it being necessary to carry out a specific and individual examination of each of the documents at issue, that, manifestly, access to those documents had to be refused on the basis of the third indent of Article 4(2) of Regulation No 1049/2001.
60. Furthermore, inasmuch as the Commission was justified in the present case in not carrying out a specific and individual examination of the documents at issue, it was therefore equally justified in taking the view that, manifestly, these documents were covered in their entirety by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, so that no partial access could have been granted (see, to that effect and by analogy, judgment in LPN
v Commission, cited in paragraph 48 above, EU:T:2011:448, paragraph 127).
61. The arguments put forward by the applicants before the Court do not call into question the Commission’s conclusion that the documents at issue were manifestly covered in their entirety by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001.
62. First, the applicants have submitted that disclosure of the documents at issue would not jeopardise the proper conduct of the audit procedure nor the latter’s purpose, since the information contained in these documents amounted to no more than findings of pure fact. Consequently, no pressure, influence or bargaining could result from disclosure.
63. That argument must be rejected, since the nature of the documents at issue does not preclude the possibility that pressures could be brought to bear on the auditor and the Commission departments or that attempts could be made to influence their actions. As the Commission correctly notes, if the applicants’ argument were accepted, the exception relating to audits would lose its purpose, since audits, by their very nature, involve checking factual data. The interest protected by that exception is the interest in allowing audits to be conducted independently and free of pressures, whether these come from the body being audited, from other interested bodies or from the general public.
64. Secondly, the applicants have claimed, basing their arguments on the judgments in Franchet and Byk
v Commission, cited in paragraph 43 above (EU:T:2006:190, paragraphs 111 and 112), and Toland
v Parliament, cited in paragraph 47 above (EU:T:2011:252, paragraph 45), that the Commission’s defence, according to which disclosure of the documents at issue would hinder the proper conduct of future audits, has the effect of making access to these documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities. That solution would be contrary to the objective of access to documents, which is to give citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers.
65. Nevertheless, unlike the cases which gave rise to the judgments in Franchet and Byk
v Commission, cited in paragraph 43 above (EU:T:2006:190), and Toland
v Parliament, cited in paragraph 47 above (EU:T:2011:252), in which the investigations and audits in question had been closed by the date on which the decision to refuse access to the documents was adopted, in the present case, the Technion audit was still in progress at the date on which the contested decision was adopted. Disclosure of the documents at issue could, therefore, not only under mine any possible action to be taken on the final report on the Technion audit, but also the ongoing audit.
66. Thirdly, the applicants’ argument that the Technion audit could not be jeopardised by disclosure of the documents at issue, since it was approaching completion at the date on which the contested decision was adopted, also cannot be accepted. It is true that the audit was closed one month and a few days after the contested decision was adopted and that the Commission itself states, in the contested decision, that the audit was in the course of being finalised. Nevertheless, it is also true that, at the date on which the contested decision was adopted, the final report on the audit procedure had not yet been adopted and that additional investigations concerning this audit remained possible and could have been contemplated. Therefore it must be held that disclosure of the documents at issue to the public under Regulation No 1049/2001 would have created a genuine, foreseeable risk of undermining the effectiveness of the ongoing Technion audit and would limit the Commission’s freedom to decide what action should be taken on the final report adopted.
67. In the light of the above explanations, the first three pleas for annulment raised should be dismissed.
– The fourth plea in law, alleging infringement of the principle of proportionality resulting from failure to weigh the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 against the public interest
68. The applicants claim that the Commission failed to weigh the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 against the public interest in disclosure of the documents at issue, thus infringing the principle of proportionality.
69. The applicants maintain that not only does Technion have an individual interest in the opportunity to submit its observations in the context of an audit procedure in which all parties could set out their views, but other bodies which participated in the projects concerned also have an interest in determining whether the audits in which they were involved and any possible repayments claimed by the Commission were lawful.
70. According to the applicants, there is also a public interest in disclosure of the documents at issue, relating to the transparency of audits. Thus, there is a public interest in investigating the way in which the Commission conducts its audit procedures, in order to determine whether measures taken to correct alleged deficiencies are adequate and appropriate. Transparency is also desirable in order to enable the other parties to contracts with the Commission to establish the procedures needed to meet the requirements imposed by the latter.
71. The Commission maintains that this plea is unfounded.
72. It should be recalled that, under the final part of Article 4(2) of Regulation No 1049/2001, the institutions must refuse access to a document where disclosure would undermine the protection, inter alia, of the purpose of inspections, investigations and audits, ‘unless there is an overriding public interest in disclosure’.
73. In the light of the applicants’ arguments and of the content of the final part of the third indent of Article 4(2) of Regulation No 1049/2001, it is for the Court to review the merits of the contested decision, which found that there was no overriding public interest within the meaning of the abovementioned provision.
74. Under Article 2(1) of Regulation No 1049/2001, the beneficiaries of the right of access to documents of the institutions are ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. That provision makes it clear that the purpose of the regulation is to guarantee access for everyone to public documents and not merely access for the requesting party to documents concerning him (judgment in Franchet and Byk
v Commission, cited in paragraph 43 above, EU:T:2006:190, paragraph 136).
75. Consequently, the individual interest which may be asserted by a requesting party in obtaining access to a document concerning him personally cannot be taken into account for the purposes of the assessment of the existence of an overriding public interest within the meaning of the final part of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment in Franchet and Byk
v Commission, cited in paragraph 43 above, EU:T:2006:190, paragraph 137; see also, to that effect and by analogy, judgment in Reagens
v Commission, cited in paragraph 49 above, EU:T:2014:139, paragraph 144).
76. In the present case, the applicants plead, repeatedly, that Technion needs access to the documents at issue in order to be able to assert its rights effectively in the context of the audit procedure, in which all parties could set out their views. However, this interest, relied on by the applicants, amounts to a private interest of Technion and is, therefore, irrelevant to the weighing up of interests provided for by the final part of Article 4(2) of Regulation No 1049/2001 (see paragraph 75 above). Even assuming that Technion has, as the applicants maintain, a right to access to the documents at issue, it is thus sufficient to point out that such a right could not be exercised by having recourse to the mechanisms for public access to documents implemented by Regulation No 1049/2001 (see, by analogy, judgment of 1 February 2007 in Sison
v Council, C‑266/05 P, ECR, EU:C:2007:75, paragraph 48). Moreover, it should be noted that, by its letter of 4 October 2010 (see paragraph 9 above), the Commission sent Technion, on an individual basis and not on the basis of Regulation No 1049/2001, copies of the PMRs relating to the Qualeg and Mosaica projects, thus providing it — according to the Commission — with evidence of Mr K.’s alleged offending conduct.
77. On the basis of the considerations set out in paragraph 76 above, it must be held that the interest of the other bodies which participated in the projects concerned, invoked by the applicants (see paragraph 69 above), also amounts to a private interest.
78. Finally, as regards the interest of the general public and of the Commission’s contractors in the transparency of audits, which is the final point on which the applicants rely (see paragraph 70 above), it is true that this constitutes a public interest, to the extent that it is objective and general in nature (see, to that effect, judgment in Reagens
v Commission, cited in paragraph 49 above, EU:T:2014:139, paragraph 142). Nevertheless, in the circumstances of the present case, the interest in transparency of audits is not so pressing that it should outweigh the interest in protecting the purpose of inspections, investigations and audits.
79. In that respect, first, it must be noted that the European Union judicature has previously had occasion to find that the interest of the public in obtaining access to a document pursuant to the principle of transparency, which seeks to ensure greater participation by citizens in the decision-making process and to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system, does not, where the document relates to an administrative procedure, have the same weight as where the document relates to a procedure in which the institution in question acts in its capacity as legislator (see, to that effect, judgment of 29 June 2010 in Commission
v Technische Glaswerke Ilmenau, C‑139/07 P, ECR, EU:C:2010:376, paragraph 60, and judgment in Reagens
v Commission, cited in paragraph 49 above, EU:T:2014:139, paragraph 140).
80. In the present case, the documents at issue manifestly form part of an administrative procedure, namely an audit procedure.
81. Secondly, the relevance of the applicants’ arguments relating to the public interest in investigating the way in which the Commission conducts its audit procedures (see paragraph 70 above) presupposes that the documents at issue reflect the Commission’s policy and general methods with regard to audits and do not relate specifically to an individual undertaking. However, that does not apply in the present case, since the documents at issue are — as set out in the request for access — documents which would show that the staff costs claimed by Technion for services performed by Mr K. do not correspond to the contractual eligibility conditions.
82. Finally, in respect of the interest of the Commission’s contractors in the transparency of audits (see paragraph 70 above), it is appropriate to note that, as the Commission has rightly pointed out, these contractors have, under their binding contractual relationship with the Commission, means of obtaining the necessary information from the Commission to enable them to meet the requirements imposed by the latter.
83. Having regard to the three considerations mentioned above, it must be held that, in the present case, the interest in the transparency of audits, invoked by the applicants, does not amount to an ‘overriding public interest’ within the meaning of the final part of Article 4(2) of Regulation No 1049/2001.
84. In the light of the above explanations, the fourth plea for annulment must be dismissed.
85. It must be held, therefore, that the Commission’s application of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits, is not marred by error. Accordingly, any possible errors of law or assessment committed by the Commission as regards the application of the exception referred to in Article 4(1)(b) of Regulation No 1049/2001, relating to protection of privacy and the integrity of the individual, would in any event have no effect on the legality of the contested decision, and the pleas relied upon must be dismissed as misplaced in so far as they relate to the application of that other exception.
86. In consequence, the action must be dismissed in its entirety, without there being any need to examine the plea of inadmissibility raised in defence by the Commission.
Costs
87. 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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders Technion — Israel Institute of Technology and Technion Research & Development Foundation Ltd to pay the costs.