JUDGMENT OF THE GENERAL COURT (Second Chamber)
26 March 2020 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Mobile satellite system operator — Documents provided to the Commission by a candidate selected in a call for tenders — Implied and express refusal of access — Exception relating to the protection of the commercial interests of a third party — Overriding public interest — Refusal of partial access)
In Case T–734/17,
ViaSat, Inc., established in Carlsbad, California (United States), represented by J. Ruiz Calzado, L. Marco Perpiñà, P. de Bandt and M. Gherghinaru, lawyers,
applicant,
v
European Commission, represented by S. Delaude and C. Ehrbar, acting as Agents,
defendant,
supported by
Inmarsat Ventures Ltd, established in London (United Kingdom), represented by C. Spontoni, B. Amory, É. Barbier de La Serre, lawyers, and A. Howard, Barrister,
intervener,
APPLICATION under Article 263 TFEU, first, for annulment of the Commission’s implied decision rejecting the applicant’s confirmatory application of 10 July 2017 for access to any information provided by Inmarsat plc, Inmarsat Ventures or its subsidiaries on the occasion of their participation in the European Union call for tenders which led to the adoption of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65) and to any exchange of information in that regard between Inmarsat and the Commission, and, secondly, for annulment of Commission Decision C(2018) 180 final of 11 January 2018 refusing access to that information,
THE GENERAL COURT (Second Chamber),
composed, at the time of deliberation, of E. Buttigieg (Rapporteur), acting as President, B. Berke and M.J. Costeira, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        On 2 May 2017, the applicant, ViaSat, Inc., which is a technology company providing communication solutions for businesses, individuals and governments, submitted, on the basis of Article 7(1) 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), to the European Commission’s Directorate-General (DG) for Communications Networks, Content and Technology a request for access (‘the initial request for access’) to ‘any information submitted by Inmarsat plc, [Inmarsat Ventures Ltd] and/or any of its affiliates, at the occasion of its participation in the EU tender completed on 13 May 2009 by Commission Decision 2009/449/EC on the selection of operators of pan-European systems providing mobile satellite services (MSS) [(OJ 2009 L 149, p. 65)], and [to] any exchange of information between Inmarsat and the [Commission] during the tender following the initial bid and until the final award decision, and [to] any post-award communications’ (‘the documents requested’). Inmarsat, considered by the applicant to be ‘a direct competitor’, is amongst the operator’s selected.
2        By email of 2 May 2017, the DG concerned acknowledged receipt of the initial request for access, which was registered that day under reference GESTDEM No 2017/2592. By letter of 23 May 2017, the DG informed the applicant that, pursuant to Article 7(3) of Regulation No 1049/2001, the time limit for reply had to be extended until 19 June 2017.
3        By letter of 22 June 2017, the DG concerned informed the applicant, first, that it had identified two sets of documents in response to the request at issue, namely ‘Inmarsat’s response to the call for applications for Pan European systems providing [MSS], Volume I (application)’ and ‘Inmarsat’s response to the call for applications for Pan European systems providing [MSS], Volume II (attachments)’, and, secondly, that it refused the request concerned in its entirety on the ground that the disclosure of those documents would undermine the protection of the commercial interests of a natural or legal person, including concerning intellectual property, and the protection of court proceedings and legal advice. Accordingly, the documents requested were, in the DG’s view, covered in their entirety by the exceptions provided for in the first and second indents of Article 4(2) of Regulation No 1049/2001. In the absence of an overriding public interest justifying waiver of those exceptions, it finally refused access, even partial, to the documents in question.
4        On 10 July 2017, the applicant submitted to the Commission, on the basis of Article 8(3) of Regulation No 1049/2001, a confirmatory application for access to the documents requested (‘the confirmatory application for access’).  By letter of 1 August 2017, the Secretariat-General of the Commission informed the applicant that, pursuant to Article 8(2) of Regulation No 1049/2001, the time limit for reply had to be extended by 15 working days, that is, to 24 August 2017. By letter of 24 August 2017, which was served on the applicant by email on the same day, the Secretariat-General informed the applicant that it was not able to reply within the extended time limit for reply. It assured that it would do ‘its utmost’ to provide the applicant with a final reply ‘as soon as possible’.
5        In the absence of an express reply to the confirmatory application for access, the applicant brought an action, on 3 November 2017, for the annulment of the implied decision rejecting that application, pursuant to Article 8(3) of Regulation No 1049/2001.
6        On 11 January 2018, the Secretary-General of the Commission adopted an express decision rejecting the confirmatory application for access (‘the contested decision’), which was notified to the applicant on 15 January 2018 and which is the subject of the present action, as modified following the adoption of the contested decision.
7        First, the contested decision identifies an additional document in response to the request for access, namely an ‘e-mail exchange between DG [“Information Society and Media”] and Inmarsat, October/November 2008 (Ares(2017) 439857)’, relating to a request for additional information sent by the Commission to Inmarsat on 24 October 2008 regarding the fulfilment of admissibility requirements made in the call for applications and Inmarsat’s reply of 6 November 2008. Next, it confirms the initial refusal to grant access to the documents requested on the basis of the exceptions set out in the first and second indents of Article 4(2) of Regulation No 1049/2001. The Commission also relies, in the contested decision, on a third exception, relating to the protection of the privacy and integrity of the individual, enshrined in Article 4(1)(b) of Regulation No 1049/2001. Finally, according to the contested decision, there is no overriding public interest justifying disclosure of the documents requested and no meaningful partial access is possible without undermining the protected interests.
Procedure and forms of order sought
8        By application lodged at the Court Registry on 3 November 2017, the applicant brought the present action. By separate document lodged at the Court Registry on 22 January 2018, the Commission brought an application for a declaration that there is no need to adjudicate following the adoption of the contested decision.
9        On 30 January 2018, the applicant informed the General Court of its intention to exercise its right to submit a statement of modification of the application in accordance with Article 86 of the Rules of Procedure of the General Court, so that the present action was thereafter to be regarded as seeking the annulment of the contested decision of 11 January 2018. The statement of modification was lodged at the Court Registry on 22 March 2018.
10      By order of 30 May 2018, the General Court decided to join the examination of the application for a declaration that there is no need to adjudicate on the merits to the ruling on the substance, in accordance with Article 130(7) of the Rules of Procedure.
11      By order of 4 September 2018, Inmarsat Ventures Ltd was granted leave to intervene in support of the form of order sought by the Commission.
12      Following the modification of the application, by document lodged at the Court Registry on 22 March 2018, the applicant claims that the Court should:
–        ‘declare that this Modified Application is admissible and replaces the initial Application in this case’;
–        annul the contested decision;
–        order the Commission to bear, in any event, its own costs and to pay those incurred by the applicant in relation to the application for annulment of the implied decision rejecting the confirmatory application for access;
–        order the Commission to bear its own costs and to pay those incurred by the applicant in connection with the application for annulment of the contested decision;
–        order the intervener to bear its own costs.
13      The Commission contends that the Court should:
–        disregard the references presented in the footnotes in the form of a link to a website;
–        declare that the initial action for annulment has become devoid of purpose and that there is no need to adjudicate on it;
–        dismiss the modified action for annulment as unfounded;
–        order the applicant to pay the costs.
14      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred by the intervener.
15      By order of 4 June 2018, the General Court adopted a measure of inquiry, in accordance with Article 91(c) and Article 104 of the Rules of Procedure, in which it ordered the Commission to produce a copy of the following documents: ‘Document 1: the application submitted by Inmarsat in response to the call for applications for Pan European Systems providing MMS, Volume 1 (application); Document 2: the application submitted by Inmarsat in response to the call for applications for Pan European Systems providing MMS, Volume II (annexes); Document 3: email exchange between [DG “Information Society and Media”] and Inmarsat, October — November 2008 (Ares(2017) 439857)’. By letter dated 20 June 2018, the Commission produced the documents in question.
Law
Subject matter of the action
16      First, it is common ground that the contested decision, by which the Commission expressly rejected the confirmatory application for access, replaced the implied decision rejecting that application, so that, in accordance with the Commission’s application for a declaration that there is no need to adjudicate, which was not contested by the applicant, there is no longer any need to rule on that implied decision.
17      Even though Regulation No 1049/2001 does not provide for the possibility of derogating from the time limits laid down in Articles 7 and 8 thereof, the implied rejection decision was nevertheless withdrawn as a result of the adoption, albeit late, of the express rejection decision, with the consequence that there is no longer any need to adjudicate on the action, as it is directed against the implied decision (see, to that effect, judgment of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 56 (not published) and the case-law cited).
18      Secondly, the subject matter of the present action is now an application for annulment of the contested decision since that subject matter was validly extended to the contested decision, notified to the applicant on 11 January 2018, by the modification of the application made by separate document lodged at the Court Registry on 22 March 2018.
19      Although the forms of order sought by the parties may not, in principle, be altered, Article 86 of the Rules of Procedure, which is a codification of pre-existing case-law on the admissible exceptions to the principle that the forms of order sought by the parties are unalterable (judgment of 9 November 2017, HX v Council, C‑423/16 P, EU:C:2017:848, paragraph 18), provides for an exception to that principle. Thus, in accordance with Article 86(1) and (2) of the Rules of Procedure, where a measure the annulment of which is sought is replaced by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor, by submitting that modification by separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which annulment of the measure justifying the modification of the application may be sought.
20      Since those conditions are fulfilled in the present case, it must be held that the action now seeks annulment of the contested decision.
Substance
21      Following the modification of the form of order sought and pleas in law, the applicant puts forward five pleas in law in support of its action, alleging, first, infringement of the first indent of Article 4(2) of Regulation No 1049/2001, secondly, infringement of the second indent of Article 4(2) of that regulation, thirdly, infringement of Article 4(1)(b) of that regulation, fourthly, infringement of the last clause of Article 4(2) of that regulation and, fifthly, infringement of Article 4(6) of that regulation.
Preliminary remarks
22      As a preliminary point, the applicant observes, inter alia, that the Commission interpreted the scope of its request for access narrowly and unreasonably in so far as it refers to ‘post-award communications’ by limiting it to the correspondence exchanged between that institution and Inmarsat relating to the period between the adoption of the selection decision on 13 May 2009 and its publication on 12 June 2009, whereas the request referred to all correspondence relating to the selection procedure at issue which had been exchanged between the Commission and Inmarsat from the date of the contested decision until ‘today’. In accordance with the principle of sound administration and Article 6(2) of Regulation No 1049/2001, the Commission should have contacted the applicant with a view to defining as precisely as possible the documents to which access was requested.
23      The Commission submits that the request for access to ‘post-award communications’ was sufficiently precise in that it concerned documents relating to the selection procedure at issue and that it could not reasonably concern all communications until ‘today’, in particular since that procedure ended in 2009 with the publication of the selection decision. Any other interpretation would be unreasonable and inconsistent, especially since, from March and May 2017, the applicant had specifically requested access to other documents which were drawn up after June 2009 and in which Inmarsat participated as a selected operator of mobile satellite services (MSS).
24      In that regard, it should be noted that it is clear from the wording of Article 6(2) of Regulation No 1049/2001, and in particular from the use of the verbs ‘ask’ and ‘assist’, that the mere finding that the application for access was insufficiently precise, whatever the reasons, must lead the addressee institution to make contact with the applicant in order to define as closely as possible the documents requested. It is thus a provision which, in the area of public access to documents, constitutes the formal transcription of the principle of sound administration, which is one of the guarantees afforded by the EU legal order in administrative procedures. The duty of assistance is thus fundamental to ensure the effectiveness of the right of access defined by Regulation No 1049/2001 (judgment of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 84).
25      However, it does not appear that the Commission’s interpretation of the scope of the request for access in the present case is vitiated by an error of assessment, is unreasonable or that the wording of that request obliged the Commission to contact the applicant prior to the adoption of the contested decision in order to define more precisely the documents requested in both the initial request for access and the confirmatory application for access. Furthermore, it is clear that none of the five pleas in law put forward by the applicant in support of its claims alleges infringement of Article 6(2) of Regulation No 1049/2001, or of the principle of sound administration, or an error of assessment as to the scope of the request for access to the documents requested.
The first plea, alleging infringement of the first indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests
26      The applicant points out at the outset that the fact that the call for applications, which is not a legislative act, contains express provisions guaranteeing the confidentiality of the applications submitted cannot justify protection against disclosure of the documents requested that goes beyond what is laid down in Article 4 of Regulation No 1049/2001 and does not create a subjective right to such protection in favour of the tenderer.
27      According to the applicant, the Commission wrongly invoked a general presumption of confidentiality to justify refusing access to the documents at issue.
28      First, it follows from Article 3(3) of Decision 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15) (‘the MSS Decision’) that the legislature clearly considered that the integrity of the invitation to tender would not be undermined in the absence of a general presumption of confidentiality.
29      Secondly, the judgment of 29 January 2013, Cosepuri v EFSA
(T‑339/10 and T‑532/10, EU:T:2013:38), relied on in the contested decision in support of the application of a general presumption of confidentiality, is not relevant in the present case.
30      In the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38), the General Court took into account the fact that the institution in question had disclosed some of the relevant information concerning the award decision in respect of the call for tenders. More specifically, the call for tenders at issue was governed by Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the Financial Regulation’), under which partial access was obtained to the information provided in the tender documents.
31      On the other hand, the facts at issue in the present case and in the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38), are not comparable, in that, unlike in Cosepuri, the applicant did not participate in the tender in question and, consequently, did not obtain any information, not even general or contextual, about Inmarsat’s application for the tender, even almost 10 years after the award of the tender and approximately 4 years after the fundamental modification of the project decided by Inmarsat, when it launched its new project in 2014. Furthermore, the request for access to information concerning the call for tenders did not have anything to do with a potential improvement of the chances of an unsuccessful tenderer of winning the tender against the successful tenderer in a comparable tender launched in the future by the same authority or institution. Finally, the judgments to which the General Court referred in the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38), also do not support the argument put forward by the Commission in the present case.
32      Thirdly, the case-law appears, in any event, to limit the application of the presumption of confidentiality in question to financial offers and price lists, pursuant to the principle that any derogation from the principle of transparency should be interpreted restrictively and does not therefore extend to the essential characteristics and relative advantages of the successful tender.
33      Fourthly, the Commission should have shown that the documents at issue contain information the disclosure of which could ‘seriously’ harm the commercial interests of the person concerned. To that end, it should have assessed how the disclosure of each of those pieces of information in the tender documents could, in the present factual circumstances, materially and effectively undermine the protection of Inmarsat’s commercial interests and demonstrate that each of those pieces of information still merited protection. The risk of such undermining should also be reasonably foreseeable and not purely hypothetical.
34      Fifthly, the passage of time, that is more than 10 years since the request for access was made, and the change in Inmarsat’s business plan made it clear that most of the information contained in the documents requested, which could have been classified as commercially sensitive for Inmarsat in 2008 or 2009 before it replaced its original project, was no longer sensitive, because that information had lost any objective reason to be protected under a general presumption of confidentiality which should be construed narrowly. The data thus disclosed did not permit Inmarsat’s competitors to know how Inmarsat intended to implement its commercial strategy with regard to the project launched in 2014 and the new use of the 2 GHz frequency band.
35      Sixthly, the Commission’s concern that disclosure of the information contained in the tender documents would allow ‘other potential applicants in possible future calls to copy from Inmarsat’s application and use it to support their own application’ was also unfounded.
36      Finally, the argument that Article 339 TFEU subjects the staff of the EU institutions to obligations of professional secrecy cannot frustrate the review of the legality of the contested decision solely on the basis of Regulation No 1049/2001.
37      The Commission, supported by the intervener, disputes the applicant’s arguments.
38      It should be noted that, in order to reject the confirmatory application for access, the contested decision relies in particular on the first indent of Article 4(2) of Regulation No 1049/2001, in accordance with which the institution concerned is to refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property.
39      According to settled case-law, Regulation No 1049/2001 is intended to give the fullest possible effect to the right of public access to documents of the institutions (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 87 and the case-law cited).
40      That right is nonetheless subject to certain limitations based on grounds of public or private interest. However, since they derogate from the principle of the widest possible public access to documents of the EU institutions, those exceptions must be interpreted and applied strictly (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraphs 88 and 89).
41      It is also settled case-law that, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical. However, it is, in principle, open to that institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (see judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 90 and the case-law cited).
42      It is also clear from the case-law that the bids submitted by tenderers in a call for tenders may fall within the scope of the exception relating to the protection of commercial interests, on account of the economic and technical information that they contain (see, to that effect, judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 95).
43      Thus, it is because of the nature of the documents concerned that the case-law has established that there is a general presumption that access to the bids of tenderers in the context of the performance of public contracts would, in principle, undermine the protection of commercial interests (see, to that effect, judgments of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 101; of 21 September 2016, Secolux v Commission, T‑363/14, EU:T:2016:521, paragraph 49; and of 14 December 2017, Evropaïki Dynamiki v Parliament, T‑136/15, EU:T:2017:915, paragraph 62).
44      However, it must be stated that the general presumption referred to in paragraph 43 above does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is a higher public interest justifying the disclosure of the document concerned by virtue of Article 4(2) of Regulation No 1049/2001 (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 126).
45      However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission must examine individually each document requested in the case. Such a requirement would deprive that general presumption of its proper effect, which is to permit the Commission to reply to a global request for access in a manner equally global (see judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 105 and the case-law cited).
46      It is in the light of those principles that the first plea should be examined.
47      First of all, it should be borne in mind that the applicant was refused access to the tender submitted by Inmarsat following the call for applications which gave rise to the selection decision of 13 May 2009 and to an exchange of emails between the Commission and Inmarsat concerning a request for additional information sent by the Commission to Inmarsat on 24 October 2008 for the purposes of the call for applications in question and Inmarsat’s reply of 6 November 2008 to that request.
48      The contested decision states, in that regard, that the ‘[documents requested] describe in detail Inmarsat’s business model and capabilities and reflect specific technological know-how in the area of MSS’, that ‘[those documents] contain detailed operational aspects concerning the provision of MSS, including timetables, descriptions of actions and milestones’, and that ‘[those documents] in particular set out how Inmarsat plans to use a pan-European S-band spectrum allocation with a view to providing MSS commercially within the [European Union]’. The contested decision goes on to state that that information ‘is of commercial value to and reflect[s] inside knowledge of Inmarsat, reflecting specific know-how and business models of Inmarsat’ and that ‘the disclosure of such information would undermine the commercial interests of Inmarsat as it would not only reveal information about business models and capabilities to competitors, but also allow other potential applicants in possible future calls to copy from Inmarsat’s application and use it to support their own application’.
49      However, it should be noted that the same type of document was at issue in the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38), which concerned an application for annulment of the decision refusing access to the bid of the successful tenderer for the award of a public service contract and in which the General Court held, in paragraph 101 of the judgment concerned, that there was a general presumption that access to the bids submitted by the other tenderers would, in principle, undermine the interest protected.
50      In that regard, the General Court held, inter alia, that the tender submitted by the applicant in the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38) was structured in such a way as to respond specifically to the call for tenders, was based on a specific presentation and contained information particular to the undertaking which enabled it to exhibit its expertise. The General Court observed, in that context, that it had to be found that, as a result of their specific terms, the presentation used and the expertise exhibited, the tenders in question bore witness to the specific skills of the tenderers and contributed to the individual nature and appeal of the tenderers’ bids in procedures such as that which was at issue, the purpose of which was to select a bid at the conclusion, inter alia, of a comparative examination of the bids submitted. Moreover, the possibility could not therefore be ruled out that the applicant might once again be in competition with the other tenderers, in particular the successful tenderer, in connection with a new call for tenders relating to similar services. According to the General Court, the tenderers’ bids, in particular that of the successful tenderer, could not therefore be disclosed to actual or potential competitors.
51      The same type of document was also at issue in the case which gave rise to the judgment of 21 September 2016, Secolux v Commission (T‑363/14, EU:T:2016:521, paragraph 52). In that regard, the General Court observed, in paragraphs 53 and 54 of that judgment, that it was clear that the documents referred to by the application for access in question, by their nature, might contain confidential technical and economic information about the successful tenderer for the award of a public service contract, in particular information on its competencies and working methods, its know-how, its internal organisation, its costs and proposed prices, and that the Commission therefore considered correctly that the documents in question were covered by a general presumption that their disclosure would, in principle, undermine the protection of commercial interests.
52      Contrary to what the applicant claims, it cannot be inferred from the case-law referred to in paragraphs 49 to 51 above that that presumption is applicable only in respect of requests for access submitted by an unsuccessful tenderer and therefore does not apply where the request for access comes, as in the present case, from a third party which did not participate in the call for tenders in question.
53      Apart from the fact that the applicant’s argument seems inconsistent in that it results in wider access being granted to documents relating to the successful tenderer’s bid to third parties rather than to unsuccessful tenderers, nothing in the judgments referred to in paragraphs 49 to 51 above provides a basis for a similarly restrictive interpretation of the scope of the general presumption of confidentiality at issue, whereas it is, moreover, common ground that the purpose of Regulation No 1049/2001 is to make documents of the institutions accessible to the public at large and that documents disclosed under the regulation enter the public domain (see judgment of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 128 and the case-law cited), so that access granted to a document requested by a third party, as is the case in respect of the applicant, applies in principle, automatically, with regard to every natural or legal person, whether a successful tenderer, unsuccessful tenderer or third party.
54      The fact, to which the applicant draws attention, that, in the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA, (T‑339/10 and T‑532/10, EU:T:2013:38), the General Court took into account that the institution had disclosed certain relevant information concerning the decision to award the tender in accordance with the Financial Regulation, such as the reasons for the rejection of the tender, the characteristics and advantages of the successful tenderer’s bid and the name of the successful tenderer, is also not such as to call into question the application of that case-law to the present case.
55      Indeed, as is apparent in particular from paragraph 84 of the judgment of 29 January 2013, Cosepuri v EFSA, (T‑339/10 and T‑532/10, EU:T:2013:38), the information referred to in paragraph 54 above was communicated only to participants in the tendering procedure at issue in accordance with the Financial Regulation and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), which applied in the context of that procedure, unlike in the present case, whereas it is common ground that the procedures set out in Regulation No 1049/2001 on public access to documents and by the Financial Regulation on public procurement are autonomous in nature (judgment of 13 December 2013, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑165/12, EU:T:2013:646, paragraph 43). Such communication therefore has no bearing on the general presumption of confidentiality vis-à-vis the public which tenderers’ bids enjoy under Regulation No 1049/2001, whether or not they are subject to the Financial Regulation. Nor, therefore, can it be relied on, in particular, to show that, as the applicant contends, where the Financial Regulation, which lays down restrictions on access to information provided for certain interested parties, is not applicable, the disclosure to the public of documents relating to the submission of the tender other than those covered by those restrictions would, in principle, be possible under Regulation No 1049/2001. Moreover, as the General Court, in essence, underlined in its judgments of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 100), and of 21 September 2016, Secolux v Commission (T‑363/14, EU:T:2016:52, paragraph 48), the protection of tenderers’ bids vis-à-vis other tenderers in particular is consistent with the relevant provisions of the Financial Regulation, in particular Article 100(2) thereof, which does not provide for the public disclosure of the tenders submitted, even after application by the unsuccessful tenderers.
56      The applicant’s argument that it is apparent from Article 3(3) of the MSS decision, according to which ‘access to documents relating to the comparative selection procedure, including applications, shall be granted in accordance with Regulation … No 1049/2001’, that the bids submitted by the tenderers must be made accessible to third parties must also be rejected. As the Commission and the intervener have rightly pointed out, that provision merely reiterates that the request for access to those documents is examined on the basis of Regulation No 1049/2001, without having the objective or effect of altering the scope of the latter.
57      Furthermore, the applicant’s claim that the general presumption of confidentiality is, in any event, limited to actual financial offers and to the price schedule, even though it does not apply to the characteristics and essential advantages of the successful tender, is not supported by the case-law referred to in paragraph 43 above, as is apparent, inter alia, from paragraphs 53 and 54 of the judgment of 21 September 2016, Secolux v Commission, (T‑363/14, EU:T:2016:521), which generally and rightly states, on the contrary, that there is a general presumption that access to tenderers’ bids would, in principle, harm the protected interest in that those tenders contain in particular confidential ‘technical and economic information’ about the successful tenderer, which goes far beyond mere pricing information extending, inter alia, to information concerning future business plans, know-how, research and development and also to information on costs.
58      Finally, the applicant’s argument that as the selection procedure was completed in 2009, so that more than five years have elapsed since its closure, the documents requested no longer merit protection, also cannot be accepted.
59      As noted in particular in paragraph 51 above, it is clear that the documents requested are, by their nature, likely to contain confidential technical and economic information about the successful tenderer, in particular information on that tenderer’s competencies and working methods, know-how, internal organisation, costs and proposed prices. Therefore, the disclosure of information relating to working methods, know-how, specific prices or any other information of commercial value reflected in the offer, even more than five years after the closure of the selection procedure, would be likely to undermine the protection of Inmarsat’s expertise, strategy and creativity, and therefore its commercial strength. This is all the more so in the present case as Inmarsat had still not launched in-flight connectivity services in 2017 and as the spectrum allocation in question in its favour is valid until at least 2027.
60      Such disclosure would also be likely to reveal Inmarsat’s strategy and plans to provide new and innovative services to customers in the aeronautical sector by weakening competition between direct competitors. Furthermore, the possibility remains that a new selection procedure for the allocation of the S-band spectrum will be launched in the future in which the applicant will be listed as a tenderer together with Inmarsat.
61      Moreover, it is settled case-law that the conclusion that commercial interests have been harmed may, in view of the nature of the interests protected in the context of a given procedure, be binding irrespective of whether the request for access concerns a procedure which is already closed or a pending procedure. For example, it has been held, in particular, in relation to the control of a merger, that the publication of sensitive information concerning the economic activities of the undertakings involved was likely to harm their commercial interests, regardless of whether there are pending proceedings. Furthermore, the prospect of such publication after a control procedure is closed ran the risk of adversely affecting the willingness of undertakings to cooperate when such a procedure is pending. The Court of Justice noted in that context that, under Article 4(7) of Regulation No 1049/2001, the exceptions relating to commercial interests or sensitive documents may apply for a period of 30 years, and may, if necessary, continue to apply after that period (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraphs 124 and 125). Similar considerations are valid with regard to a selection procedure such as the one in question, as can be seen in particular from paragraph 59 above, and the disclosure of the information concerned would be likely to break the relationship of trust which should exist between contracting authorities and economic operators participating in such procedures and would similarly risk dissuading potential tenderers from participating in tendering procedures if sensitive information concerning their economic activities were accessible to competitors and to the public in general.
62      The contested decision also rightly refers in that context to Article 339 TFEU, in so far as that provision and the first indent of Article 4(2) of Regulation No 1049/2001 protect professional secrecy and the commercial interests of a particular natural or legal person (judgment of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C‑673/13 P, EU:C:2016:889, paragraph 50).
63      Consequently, the Commission rightly took the view in the contested decision that all the documents identified in that decision as responding to the request for access were, in principle, covered by a general presumption that their disclosure would in principle undermine the protection of commercial interests despite the fact that the selection procedure had ended in 2009.
64      Finally, it is clear that the applicant did not put forward any specific submission capable of supporting the argument that, by way of exception, some of the documents requested were not covered by the presumption of confidentiality based on the nature of the proceedings and the information concerned.
65      In the light of the foregoing considerations, it must be concluded that the Commission was entitled to consider that all the documents concerned relating to the tender submitted by Inmarsat were covered by the exception relating to the protection of commercial interests, without carrying out a concrete and individual examination of those documents in order to establish that their disclosure could seriously harm Inmarsat’s commercial interests, contrary to the applicant’s submission.
66      Consequently, the first plea in law must be rejected.
The fourth plea, alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001
67      The applicant submits, first, that the Commission did not make serious efforts to identify an overriding public interest and did not give adequate reasons for the conclusion that there was no such interest. In its view, the public consultations organised at the level of certain Member States, and referred to in the contested decision, concerned the new project launched by Inmarsat in 2014 and therefore did not enable the public to understand the essential characteristics of the mobile satellite system for which Inmarsat was awarded access to the 2 GHz frequency band in 2009, nor the extent of the commitments that were made by Inmarsat in that context.
68      Secondly, the documents requested are not, and were not, necessary to support the actions brought by the applicant before the General Court in ViaSat v Commission, lodged under number (T‑245/17), and before the Court of Appeal of Brussels (Belgium). In any event, the existence of a private interest does not preclude the existence of an overriding public interest in the disclosure of the documents requested.
69      Thirdly, it is clear from the wording itself of Article 3(3) of the MSS Decision that the public has a legitimate interest and the right to ‘know about the selection process’.
70      Fourthly, even if a general presumption of confidentiality were to exist, it would not exclude the right of an interested party to contend that there was an overriding public interest justifying the disclosure of the document concerned pursuant to Article 4(2) of Regulation No 1049/2001.
71      Fifthly, the principle of transparency is of particularly pressing concern in the present case, as is apparent, in particular, from the preparatory work on the regulatory framework for the use of the 2 GHz frequency band and, contrary to what is claimed by the intervener, the overriding public interest demonstrated by the applicant is not vague or general.
72      In particular, in the present case, there are specific circumstances supporting the existence of an overriding interest justifying the disclosure to the public of certain information contained in the tender documents, which derive from the combination of the objective of the MSS harmonisation initiative and the exclusive rights of use of the 2 GHz frequency band granted to Inmarsat, the very precise conditions of the MSS tender and the applicable legislation and the repeated failure of Inmarsat to fulfil its obligations, which prevented the attainment of important public interest objectives, such as the development of MSS in the European Union, in particular in rural areas, and the prompt and correct use of very valuable and scarce frequencies.
73      According to the applicant, the public has the right to be informed about important issues of EU law such as those relating to the implementation of the MSS project, which are of great public interest given the issues at stake and the promises made to the public. The fact that citizens and competitors are aware of the administration’s activities in respect of projects promised to the public, in particular when a material change in the way they are provided is envisaged, is a guarantee of the proper functioning of the administration. Transparency towards, and supervision by, those who confer legitimacy on public authorities encourages those authorities to be effective in adhering to the initial will of the citizens and can thereby inspire their confidence, which is a guarantee of public contentment and the proper functioning of the democratic system. All those objectives are in line with the overall objective of ensuring an open European administration, which the EU legislature has made a priority in the architecture of the Treaties, and they do not, as the intervener wrongly submits, in any way impinge on the Commission’s task of monitoring the application of EU law through the infringement procedure.
74      Finally, the Commission’s assertion that transparency was assured at Member State level in accordance with national laws is irrelevant for the purposes of the application of Regulation No 1049/2001, as it would unlawfully add a condition to those provided for in that regulation.
75      The Commission, supported by the intervener, disputes the applicant’s arguments.
76      As stated in paragraph 44 above, it is clear from the case-law that the application of a general presumption, like the presumption, in the present case, that commercial interests will be undermined, does not exclude the possibility of demonstrating that there is an overriding public interest justifying the disclosure of one or more documents (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 126).
77      It is 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). Indeed, it is for the party alleging an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, to prove that interest (judgment of 25 September 2014, Spirlea v Commission, T‑306/12, EU:T:2014:816, paragraph 97).
78      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).
79      However, general considerations cannot be accepted in order to justify access to the documents requested (see, to that effect, 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).
80      In response to the applicant’s request for access to the documents requested in view of the existence of an overriding public interest consisting in the right of the public to know, on the one hand, what stage the realisation of the project in question has reached and, on the other hand, to what extent Inmarsat has deviated from the conditions laid down in the selection procedure, the contested decision states, first, that transparency was ensured primarily at the level of the Member States, in accordance with national legislation, in so far as the determination of the conditions applicable to authorised MSS operators is a prerogative of the national authorities, including any adjustments to those conditions. Secondly, the applicant is a direct competitor of Inmarsat and the request for access primarily serves the applicant’s private interest. Thirdly, the Commission has not identified any overriding public interest justifying disclosure of the documents requested, so that the interests protected, in particular, by the first indent of Article 4(2) of Regulation No 1049/2001 prevail. Fourthly, that is particularly so as the case in point concerns the administrative activity of the institution concerned. Fifthly, contrary to what is submitted by the applicant, Article 3(3) of the MSS Decision does not seek to grant increased transparency with regard to the applications submitted in the call for tenders in question.
81      In the first place, it follows from the foregoing considerations that, contrary to what is submitted by the applicant, the contested decision satisfies the requirement to state reasons by setting out the various grounds in support of the refusal to recognise the existence of an overriding public interest justifying the disclosure of the documents requested. In particular, as regards the criticism that the Commission has not made a serious effort to identify such an overriding public interest, it should be recalled that, as noted in paragraph 77 above, it is for the applicant who claims the existence of an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001 to prove this by referring to the specific circumstances on which such an interest is based. However, the Commission considered that was not the case.
82      In the second place, the applicant has failed to show, as it submits, that the principle of transparency was of particularly pressing concern in the present case. The existence of a private interest in the disclosure of commercially sensitive information concerning a direct competitor, as is the case here, does not preclude the existence of a possible objective and general overriding public interest which, therefore, justifies disclosure (see, to that effect, judgments of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, not published, EU:T:2015:268, paragraph 90, and of 25 October 2013, Beninca v Commission, T‑561/12, not published, EU:T:2013:558, paragraph 58), but the Commission did not err in finding that the existence of such an overriding public interest could not be identified on the basis of the circumstances invoked by the applicant.
83      If, as the applicant claims, there is a definite public interest in the realisation of the project at issue, in that it is intended, in particular, to enable the dissemination of mobile and high-speed communications in rural and less developed regions of the European Union, to contribute to the development of the internal market and to improve competition and stimulate efficient investment, such general claims are not sufficient in themselves to justify access to the documents requested to the detriment of the protection of the commercial interests of the successful tenderers. Similarly, the general claims made in that context, in so far as they relate to the interest of the public and Inmarsat’s competitors in being informed about the status of the MSS project, to see that that project, the implementation of which is in the public interest, is brought to a successful conclusion and to be in a position to ascertain whether and to what extent the initial conditions for the award of the contract were amended and implemented, are not such as to establish in practice that the principle of transparency is particularly pressing in the present case and capable, therefore, of prevailing over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 157 and 158). Finally, the applicant’s contentions that the control of the administration’s activities by citizens and competitors promotes effective action by the administration, engendering confidence, which is a guarantee of the proper functioning of the democratic system, are general considerations which are not capable of demonstrating that the principle of transparency was in fact of particularly pressing concern in the present case, so as to take precedence over the protection of Inmarsat’s commercial interests (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 91 and 93).
84      In the third place, the Commission was also right to recall, in that context, the case-law according to which the general interest in transparency does not carry the same weight in the case of the administrative activity of the institution concerned, within the context of which the documents requested form part in the present case, as where the institution’s legislative activity is concerned (see, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 60, and of 25 October 2013, Beninca v Commission, T‑561/12, not published, EU:T:2013:558, paragraph 64).
85      In the fourth place, the existence of an overriding public interest in the disclosure of the documents requested also does not follow from taking into account Article 3(3) of the MSS Decision, since, as noted in paragraph 56 above, that provision merely reiterates that Regulation No 1049/2001 applies to the documents relating to the comparative selection procedure, ‘including applications’, and cannot be interpreted as changing the scope of that regulation in such a way as to require greater transparency in the tendering procedure for pan-European systems providing MSS.
86      In the light of the foregoing considerations, and without it being necessary to rule on the merits of the ground set out in the contested decision that a degree of transparency towards the public has been ensured at the level of the Member States, it must be concluded that the applicant has not demonstrated the existence of an overriding public interest justifying disclosure of the documents requested under the last clause of Article 4(2) of Regulation No 1049/2001, so that the fourth plea in law must be rejected.
The fifth plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001
87      The applicant submits, first, that the Commission could not validly rely on the general presumption of confidentiality recognised in the case which gave rise to the judgment of 29 January 2013, Cosepuri v EFSA (T‑339/10 and T‑532/10, EU:T:2013:38), since, in so doing, it did not carry out a specific and individual examination of each document in order to assess the possibility of granting the applicant partial access, at least, in particular, to the essential characteristics of the project submitted by Inmarsat in the call for tenders relating to MSS and the commitments made by Inmarsat in that regard.
88      Secondly, the existence of obvious overriding public interests justifying the disclosure of the documents requested should, in any event, have led the Commission to seriously consider the possibility of granting partial access to those documents, as is apparent from a combined reading of the final clause of Article 4(2) and Article 4(6) of Regulation No 1049/2001, and from the case-law of the Court of Justice and the General Court.
89      Thirdly, Article 3(3) of the MSS Decision at the very least militates in favour of partial access to the documents in question.
90      Fourthly, any serious assessment of the request for access would necessarily have revealed that partial access to the documents requested was possible and the Commission should have appropriately redacted those documents for the purposes of providing the public with such partial access. The Commission did not provide any reasons for not being able to make only those parts covered by the exceptions invoked inaccessible to the public, nor did it explain to what extent the other parts of the documents requested would be completely deprived of their content or meaning if the information covered by the exception were redacted. Nor did it submit that the obligation to provide partial access to the documents requested would have entailed an excessive workload for its services.
91      The Commission, supported by the intervener, disputes the applicant’s arguments.
92      It is apparent from the contested decision that the Commission considered the possibility of granting partial access to the documents requested whilst protecting Inmarsat’s commercial interests in order to conclude, in accordance with the Court of Justice’s case-law (see, to that effect, judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133), that, in so far as all the documents at issue were covered by a general presumption of confidentiality, they did not fall within an obligation of disclosure, in full or in part, of their content, so that, contrary to what the applicant submits, the Commission was not under any obligation to examine each document individually with a view to possible partial access to the information contained in those documents, so as not to render that presumption redundant.
93      Furthermore, as noted in paragraph 85 above, Article 3(3) of the MSS Decision cannot be interpreted as meaning, as the applicant submits, that it extends the scope of disclosure beyond the specific limits laid down in Regulation No 1049/2001 and includes in particular an enhanced obligation to examine the possibility of partial access to the documents requested, since that provision merely reiterates the application of that regulation in respect also of the ‘applications’ submitted, without altering its scope.
94      Consequently, the Commission did not infringe Article 4(6) of Regulation No 1049/2001 by refusing partial access to the documents requested, so that the fifth plea in law must also be rejected.
95      In the light of that conclusion, it is not necessary to examine the merits of the second and third pleas put forward by the applicant, according to which the Commission wrongly relied, first, on the exception relating to the protection of court proceedings under the second indent of Article 4(2) of Regulation No 1049/2001 and, secondly, on the exception relating to the protection of privacy within the meaning of Article 4(2)(b) of that regulation, in order to refuse access to the documents requested.
96      It is true that, according to the case-law, a single document may fall within the scope of one or more of the 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).
97      However, it is apparent from the examination of the first, fourth and fifth pleas in law that, first, the Commission did not err in finding that the disclosure of the various documents relating to the successful tenderer’s bid would undermine the protection of commercial interests, under the first indent of Article 4(2) of Regulation No 1049/2001, and, secondly, the applicant has not demonstrated the existence of an overriding public interest which would nevertheless justify giving access to the documents requested and, thirdly, the general presumption of non-disclosure implies that the documents covered by that presumption are not subject to the obligation of even partial disclosure of their content, pursuant to Article 4(6) of that regulation.
98      As the exception based on the undermining of commercial interests in itself justifies non-disclosure of the documents requested in their entirety for reasons of procedural economy, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of court proceedings and protection of privacy are well founded (see, to that effect, judgment of 26 April 2016, Strack v Commission, T‑221/08, EU:T:2016:242, paragraph 172 (not published) and the case-law cited).
99      In the light of all the foregoing considerations, the action must be dismissed without it being necessary to rule on the Commission’s head of claim which seeks that the documents referred to in the footnotes in the statement modifying the application in the form merely of a link to a website be disregarded.
Costs
100    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.
101    According to Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs shall be in the discretion of the Court.
102    In the present case, it must be held that, as the applicant notes, the fact that there is no need to rule on the lawfulness of the implied decision rejecting the confirmatory application for access results from the adoption of the contested decision, which took place more than four months after the expiry of the time limit for replying to the confirmatory application for access laid down in Article 8(1) and (2) of Regulation No 1049/2001, and that the applicant had no choice, in order to safeguard its rights, other than to bring an action for annulment of that implied decision pending a possible express decision of the Commission, the adoption of which led the applicant to submit a statement modifying its initial application.
103    It therefore appears appropriate — and it is fair to decide in the circumstances of the present case — that the applicant, who has essentially been unsuccessful, should bear three quarters of the costs, including those incurred by the intervener, and that the Commission should bear one quarter of its own costs and one quarter of the costs incurred by the applicant and the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Declares that there is no need to rule on the lawfulness of the European Commission’s implied decision rejecting the applicant’s confirmatory application of 10 July 2017 for access to all the information provided by Inmarsat plc, Inmarsat Ventures Ltd or its subsidiaries on the occasion of their participation in the European Union call for tenders which led to the adoption of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) and to any exchange of information in that regard between Inmarsat and the Commission;
2.      Dismisses the action as to the remainder;
3.      Orders ViaSat, Inc., to bear three quarters of its own costs and to pay three quarters of the costs incurred by the Commission and by Inmarsat Ventures;
4.      Orders the Commission to bear a quarter of its own costs and to pay a quarter of the costs incurred by ViaSat and by Inmarsat Ventures.
Buttigieg
Berke
Costeira
Delivered in open court in Luxembourg on 26 March 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.