JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
28 May 2020 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Document on measures required to ensure compliance by authorised operators of mobile satellite systems with the common conditions referred to in Decision No 626/2008/EC — Implied and express refusal of access — Exception relating to the protection of the purpose of inspections, investigations and audits — Overriding public interest — Partial refusal of access)
In Case T‑649/17,
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 C. Ehrbar and S. Delaude, 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 for annulment of the Commission’s implied decision rejecting the applicant’s confirmatory application of 31 May 2017 for access to the ‘Roadmap of Measures Toward the Compliance of Selected and Authorised Mobile Satellite Services (MSS) Operators with Common Conditions of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008, Including Intermediate New Steps and Corresponding Time Limits’, and, subsequently, an application for the annulment of Commission Decision C(2017) 8219 final of 1 December 2017 refusing access to that roadmap,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, E. Buttigieg (Rapporteur) and K. Kowalik-Bańczyk, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        On 20 March 2017, the applicant, Viasat, Inc., which is an undertaking in the technology sector and provides communication solutions for undertakings, 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 Directorate-General (DG) for Communications Networks, Content and Technology a request for access to the ‘Roadmap of Measures Towards the Compliance of Selected and Authorised MSS Operators with Common Conditions of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008, Including Intermediate New Steps and Corresponding Time Limits’ (‘the Roadmap’) (‘the initial request for access’) which was presented at the Communications Committee (‘COCOM’) meeting held on 11 July 2013, established under Article 22 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (OJ 2002 L 108, p. 33). As is apparent from 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), the ‘selected and authorised operators’ referred to in the Roadmap includes the intervener, Inmarsat Ventures Ltd, described by the applicant as a ‘direct competitor’.
2        By email of 20 March 2017, the DG concerned acknowledged receipt of the initial access request which was registered on the same day under the reference GESTDEM No 2017/1725. By letter of the following 10 April, the DG informed the applicant that, in accordance with Article 7(3) of Regulation No 1049/2001, the time limit for responding was to be extended by 15 working days, that is to say, until 5 May 2017.
3        By letter of 5 May 2017, the DG concerned informed the applicant of the complete rejection of the application at issue (‘the initial rejection decision’), claiming that the disclosure of the Roadmap, first, in so far as it referred to ‘a number of technical and business development related aspects’ ‘could potentially damage the commercial interests of the selected MSS operators’ and, second, ‘would undermine the protection of the purpose of inspections and investigations’, in the context of ‘the coordinated application of Member States’ rules on enforcement applicable to an authorised operator of mobile satellite systems in the event of an alleged breach of the common conditions attached to its authorisation, in application of Commission Decision 2011/667/EU [of 10 October 2011 on modalities for coordinated application of the rules on enforcement with regard to mobile satellite services (MSS) pursuant to Article 9(3) of Decision No 626/2008/EC of the European Parliament and of the Council (OJ 2011 L 265, p. 25)]’. Consequently, the requested document was, in its view, covered in its entirety by the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001. In the absence of an overriding public interest justifying derogation from those exceptions, the DG concerned therefore refused access, even in part, to the Roadmap.
4        On 31 May 2017, on the basis of Article 8(3) of Regulation No 1049/2001, the applicant submitted to the European Commission a confirmatory application for access to the Roadmap (‘the confirmatory application for access’).  By letter of 20 June 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 replying had to be extended by 15 working days, that is, until 13 July 2017. By letter of 12 July 2012, which was notified to the applicant by email on 13 July 2017, it informed the applicant that it had not been able to reply within the extended reply period, since it had not been able to finalise all the internal consultations at that stage. It assured the applicant that it would do ‘its utmost’ in order to provide the applicant with a final answer ‘as soon as possible’.
5        In the absence of an express reply to the confirmatory application for access, the applicant brought an action on 25 September 2017 for annulment of the implied decision to reject the request, in accordance with Article 8(3) of Regulation No 1049/2001.
6        On 1 December 2017, 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 5 December 2017 and which is the subject of the present action as amended following the adoption of the contested decision.
7        The contested decision states that ‘the Roadmap of Measures is not a stand-alone document, but an annex to a confidential and protected document entitled “Coordinated Approach of Measures and Road-Map to Remedy Breaches to Common Conditions [laid down in] Article 7(2) of MSS Decision No 626/2008/EC”’. In addition, that decision confirms the initial refusal to grant access to the Roadmap on account of the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001. The Commission also relies on a third exception, relating to the protection of court proceedings, laid down in the second indent of Article 4(2) of Regulation No 1049/2001. Finally, according to the contested decision, there is no overriding public interest justifying the disclosure of the Roadmap and useful partial access is not possible without undermining the interests protected.
Procedure and forms of order sought
8        By application lodged at the Court Registry on 25 September 2017, the applicant brought the present action. By separate document lodged at the Court Registry on 8 December 2017, the Commission applied for a declaration that there was no need to adjudicate following the adoption of the contested decision.
9        On 22 December 2017, the applicant informed the 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 would then be considered as seeking annulment of the express decision, of 1 December 2017, rejecting the confirmatory application for access. The statement of modification was lodged at the Court Registry on 14 February 2018.
10      By order of 30 May 2018, the Court decided to join the examination of the application for a declaration that there is no need to adjudicate on the merits in accordance with Article 130(7) of the Rules of Procedure.
11      By order of 4 September 2018, the intervener 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 14 February 2018, the applicant claims that the Court should:
–        ‘declare that the modified application is admissible and replaces the initial application in this case’;
–        annul the contested decision;
–        in any event, order the Commission to bear its own costs and 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 the costs incurred by the applicant in relation to 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 in footnotes in the form of a link referring to a website;
–        declare that the initial action for annulment has become devoid of purpose and that there is no need to adjudicate thereon;
–        dismiss the action for annulment as unfounded;
–        order the applicant to pay the costs.
14      The intervener submits that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs, including those incurred by the intervener.
15      By order of 16 May 2018, the Court adopted a measure of inquiry in accordance with Article 91(c) and Article 104 of the Rules of Procedure, by which it ordered the Commission to produce a copy of the Roadmap, stating that that document would not be communicated to the applicant. By letter of 25 May 2018, the Commission produced a copy of the Roadmap.
Law
Subject matter of the action
16      First, it is common ground that the contested decision, by which the Commission expressly refused the confirmatory application for access, replaced the implied decision refusing that request, with the result that, in accordance with the request for a declaration that there is no need to adjudicate, made by the Commission and not disputed by the applicant, there is no longer any need to adjudicate on the application for annulment of 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 decision rejecting the application was nevertheless withdrawn by reason of the adoption, albeit late, of the express decision rejecting it, with the result that there is no longer any need to adjudicate on the action in so far as it is directed against that 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 in so far as that subject matter was validly extended to that decision, notified to the applicant on 5 December 2017, by the modification of the application made by separate document lodged at the Court Registry on 14 February 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 a derogation from 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 introducing that modification by a separate document and within the time limit down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.
20      Since those conditions are met in the present case, it must be held that the action now seeks the annulment of the contested decision.
Substance
21      Following the modification of its form of order and pleas in law, the applicant raises five pleas in law in support of its application for annulment of the contested decision, alleging (i) infringement of the third indent of Article 4(2) of Regulation No 1049/2001, (ii) infringement of the first indent of Article 4(2) of that regulation, (iii) infringement of the second indent of Article 4(2) of that regulation (iv) infringement of the last clause of Article 4(2) of that regulation and, (v) infringement of Article 4(6) of that regulation.
Preliminary remarks
22      As a preliminary point, the applicant observes, inter alia, that, in accordance with the principle of sound administration, the Commission should have indicated to it, in its reply to the initial request for access, that the Roadmap was not a stand-alone document, but that it was the annex to a document entitled ‘Coordinated approach to measures and roadmap to remedy breaches of the common conditions set out in Article 7(2) of MSS Decision No 626/2008/EC’, which would have enabled it to extend its request for access to the latter document.
23      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 request 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. The provision is one which, in the field of public access to documents, formally translates the principle of sound administration, which is one of the guarantees afforded by the legal order of the European Union in administrative procedures. The duty to provide assistance is therefore 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).
24      However, as the Commission and the intervener have rightly pointed out, neither the principle of sound administration nor Article 6(2) of Regulation No 1049/2001 implies that that institution, when faced with a request for access to a document specifically identified by its date and title, such as the Roadmap in the present case, must inform the applicant that that document constitutes the annex to another document to which access has not been requested. Furthermore, it should be noted that none of the five pleas in law put forward by the applicant in support of its claim alleges infringement of Article 6(2) of Regulation No 1049/2001 or of the principle of sound administration or a manifest error of assessment as regards the scope of the request for access in question.
The first plea in law, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits
25      As a preliminary point, the applicant observes (i) that any exception to the right of access to documents must be interpreted and applied strictly, more particularly in the context of the application of Decision No 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’); (ii) that, contrary to the intervener’s allegations, COCOM’s rules of procedure and those provided for in the mandate of the COCOM Working Group on the implementation of the framework for pan-European systems providing mobile satellite services (‘the MSS WG’), which relate to the ‘confidentiality’ of the discussions and information exchanged in the context of the work of COCOM and the MSS WG, do not restrict the scope of the right of access guaranteed by primary and secondary EU law, (iii) that the Commission must, in any event, explain how access to the document in question could ‘specifically and actually’ harm the interest protected by an exception provided for under Article 4 of Regulation No 1049/2001 and, (iv) that the risk of harm to such an interest must, moreover, be reasonably foreseeable and not purely hypothetical.
26      More specifically, as regards the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, the Commission wrongly relies on it for the following reasons.
27      In the first place, the Commission cannot rely on that exception in order to protect the purpose of investigations carried out at ‘national’ level under the auspices of COCOM and MSS WG, since the sole purpose of that exception is to protect the purpose of investigations carried out by the EU institutions.
28      In the second place, the fact, noted in the contested decision, that the Roadmap is not a ‘binding’ document is in itself irrelevant for the purposes of the application of Regulation No 1049/2001.
29      In the third place, the Commission has not demonstrated to the requisite legal standard that disclosure of the Roadmap ‘would jeopardise’ the completion of any of the investigations carried out, or envisaged, at national level, or that such disclosure could ‘specifically and actually’ undermine the interest protected by the third indent of Article 4(2) of Regulation No 1049/2001. According to the applicant, the Roadmap appears to have been agreed as a common solution by the national regulatory authorities (‘NRAs’), some of which had previously initiated enforcement procedures in order to respond to the intervener’s failure to comply with the stages and other common conditions set out in Article 7(2) of the MSS Decision (‘the common conditions’). It is therefore difficult to understand how access to the new milestones, deadlines and other conditions which would henceforth apply to the intervener could undermine any ‘investigation procedure’, whereas, in accordance with the case-law of the Court, the Commission cannot invoke in that context the need to protect a potential future enforcement or supplementary investigation.
30      In the fourth place, the Commission refers in excessively vague and general terms to the risk that disclosure of the Roadmap more than four years after its conclusion, which reflects the coordination efforts of certain Member States, although its content and scope are known to the Member States and to the NRAs, would make it possible to exert ‘external pressure’ on the NRAs which could jeopardise the serenity of the investigations carried out at national level, without providing proof of the reality of such a risk. It is also significant that the intervener and several NRAs disclosed selected parts of what they claimed to be the content of the Roadmap.
31      In the fifth place, the argument that the Member States would obtain less information from authorised operators because of the premature disclosure of the Roadmap is also incorrect. First, it is unlikely that those operators would provide commercially sensitive information concerning them. Next, the intervener had, on several occasions, itself sent parts of the Roadmap to its investors. Furthermore, the intervener would in any event have an interest in continuing its full cooperation with the NRAs in the context of enforcement procedures by demonstrating that each particular step set out in the Roadmap was complied with.
32      In the sixth place, the Commission also failed to demonstrate how disclosure of the Roadmap would affect the atmosphere of ‘mutual trust’ between the Member States, on the one hand, and between the Member States and the Commission, on the other, and would have a negative effect on the extent to which the Roadmap could promote a coordinated approach to enforcement between the Member States.
33      The Commission, supported by the intervener, disputes the applicant’s arguments.
34      As a preliminary point, it should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ‘ever closer union among the peoples of Europe’, in which decisions are taken as openly as possible and as closely as possible to the citizen (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 51 and the case-law cited).
35      That core EU objective is also reflected in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and in the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 52 and the case-law cited).
36      It is apparent from recital 2 of Regulation No 1049/2001 that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 53 and the case-law cited).
37      To those ends, Article 1 of Regulation No 1049/2001 provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 54 and the case-law cited).
38      It is also apparent from Article 4 of that regulation, which introduces a system of exceptions in that regard, that that right is, nevertheless, subject to certain limits based on reasons of public or private interest (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 55 and the case-law cited).
39      As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 56 and the case-law cited).
40      Thus, in accordance with settled case-law, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) and (3) of Regulation No 1049/2001 (see judgment of 7 September 2017, AlzChem v Commission, T‑451/15, not published, EU:T:2017:588, paragraph 19 and the case-law cited).
41      Where an EU institution, body, office or agency that has received a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception, and the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 57 and the case-law cited).
42      Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a specific manner and must be apparent from the reasons for the decision (judgment of 5 December 2018, Falcon Technologies International v Commission, T‑875/16, not published, EU:T:2018:877, paragraph 61).
43      In order to respond to the first plea, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001, it is also necessary to recall certain elements of the legislation applicable to MSS and the origins of the Roadmap.
44      As is apparent from recital 3 of Commission Decision 2007/98/EC of 14 February 2007 on the harmonised use of radio spectrum in the 2 GHz frequency bands for the implementation of systems providing mobile satellite services (MSS) (OJ 2007 L 43, p. 32), MSS provides a new platform for offering various types of pan-European telecommunications and broadcasting or multicasting services that can improve coverage of rural areas in the European Union and thus reduce the digital divide in geographical terms. The introduction of new systems providing MSS would potentially contribute to the development of the internal market and enhance competition by increasing the offering and availability of pan-European services and end-to-end connectivity as well as encouraging efficient investments.
45      Pursuant to Article 3 of Decision 2007/98, Member States had to designate and make available the frequency bands 1980-2010 MHz (Earth-to-space) and 2170-2200 MHz (space-to-Earth) for systems providing MSS from 1 July 2007.
46      Recitals 11 and 12 of the MSS Decision state that, in order to ensure that the Member States do not take decisions which could lead to fragmentation of the internal market, the selection criteria for MSS should be harmonised and a common selection system should be established in order to achieve a coordinated result for all Member States. At the end of the selection procedure put in place in accordance with Title II of the MSS Decision, the Commission, by decision of 13 May 2009, selected the intervener and Solaris Mobile as authorised operators, as noted in paragraph 1 above.
47      The MSS Decision makes the right to use the frequency bands in question for the implementation of the systems supplying MSS subject to compliance with the common conditions set out in Article 7(2) of the MSS Decision and specified in the annex thereto. In particular, authorised operators must use the radio frequencies assigned for the provision of MSS, have respected milestones six to nine listed in the annex to that decision by 13 May 2011 and must comply with all commitments made in their application (see also recital 5 of Decision 2011/667).
48      Recitals 21 and 22 of the MSS Decision state, first, that decisions on the withdrawal of authorisations granted in relation to MSS or complementary ground components due to the non-fulfilment of obligations should be enforced at national level and, second, that, while monitoring of the use of radio spectrum by authorised operators and any required enforcement action is undertaken at national level, it should remain possible for the Commission to define the modalities of a coordinated monitoring and/or enforcement procedure. Wherever necessary, the Commission should have the right to raise enforcement issues relating to the fulfilment by operators of common authorisation conditions, in particular coverage requirements.
49      Accordingly, under the first and second subparagraphs of Article 9(2) of the MSS Decision, Member States are to ensure that the rules on enforcement, including those concerning penalties applicable to infringements of the common conditions, comply with EU law and it is for Member States to ensure that compliance with common conditions is monitored and that appropriate measures are taken in the event of non-compliance. Under the third subparagraph of Article 9(2) of that decision, the Commission may, with the assistance of the COCOM, examine any alleged specific breach of the common conditions and where a Member State informs the Commission of a particular breach, it is to examine it with the assistance of the COCOM. Article 9(3) of the MSS Decision specifies the procedure under which the measures are to be adopted which are to define all appropriate procedures for the coordinated application of rules on enforcement referred to in the abovementioned paragraph 2, including rules for the coordinated suspension or withdrawal of authorisations for breaches of the common conditions.
50      The definition of the modalities for coordinated application of the rules on enforcement of the Member States concerning an authorised operator of MSS in the event of an alleged breach of the common conditions attached to its authorisation is the subject of Commission Decision 2011/667 of 10 October 2011 on modalities for coordinated application of the rules on enforcement with regard to mobile satellite services (MSS) pursuant to Article 9(3) of Decision No 626/2008 (OJ 2011 L 265, p. 25), recitals 5 to 8 of which respectively recall that the right to use specific radio frequencies and the right to operate an MSS are subject to common conditions, that monitoring of compliance with these common conditions and enforcement should be undertaken at national level, including the final assessment of any breach of common conditions, that national rules on enforcement should be in accordance with EU law, and that the cross-border nature of the common conditions requires coordination, at Union level, of the national procedures leading to enforcement by Member States. Inconsistencies in the application of national enforcement procedures, in particular regarding the investigation, the timing and the nature of any measures taken, would result in a patchwork of enforcement measures in contradiction to the pan-European nature of MSS.
51      Recital 14 of Decision 2011/667 states in that regard that the monitoring of compliance in each Member State, and in particular the analysis of the facts underlying any alleged breach of those common conditions, requires knowledge of all the factual elements of a cross-border nature and effects, and may require information on the provision of the service in other Member States. Sharing the findings of the various competent national authorities and the views stated by the authorised operators concerned would help achieve more consistent and effective enforcement throughout the Union. In addition, a coordinated timescale for enforcement should increase legal certainty for the authorised operators concerned.
52      Accordingly, under Article 1(2) of Decision 2011/667, taking into account the cross-border nature of MSS, coordination with the assistance of the COCOM is aimed in particular at facilitating a common understanding of the facts underlying any alleged breach and its gravity, leading to consistent application of national enforcement rules across the European Union, including coordinated timing of any measures taken, in particular where breaches are similar in nature.
53      In that regard, it is stated in recital 11 of Decision 2011/667 that Article 10 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), which covers the electronic communications services at issue, provides for a graduated approach to enforcement, envisaging a first phase (phase I) where the alleged breach is investigated and measures aimed at ensuring compliance are adopted, if applicable. In particular, where the launch of a satellite would be necessary to achieve compliance with any of the common conditions concerned, measures adopted may provide for a roadmap including intermediate steps and corresponding time limits. A second phase (phase II) triggered by the failure to address serious and repeated breaches can then lead to withdrawal of the rights of use.
54      It is Article 3(1) to (8) of Decision 2011/667 which defines the modalities for coordinated application of the national rules on enforcement. Paragraph 1 provides that the Member State which finds that an authorised operator does not comply with common conditions is to inform that operator and the Commission, which is to inform the other Member States thereof. According to paragraph 2, authorising Member States, other than the one which has found that an authorised operator was not complying with one or more of the common conditions, are to investigate whether there is a breach of the relevant common conditions within their jurisdiction and give the authorised operator concerned the opportunity to state its views. Paragraph 3 provides that the Commission is to notify the Member States of the summary of the findings submitted by the authorising Member States, shall convene a meeting of the COCOM in order to examine the alleged breach and, if applicable, to discuss any appropriate measures aimed at ensuring compliance, in line with the objectives referred to in Article 1(2) of that decision. Paragraph 5 provides that, after the meeting of the COCOM, the authorising Member State which finds that there is a breach of the common conditions shall take appropriate measures aimed at ensuring compliance with the common conditions, with the exception of withdrawal or suspension of any authorisation or right of use held by that operator. In accordance with paragraph 6, where there are serious or repeated breaches of the common conditions, a Member State which, after having taken the measures referred to in paragraph 5, intends to withdraw the authorisation shall inform the Commission thereof, which shall communicate to all the other Member States the information submitted by that Member State concerning the measures taken by the operator concerned to comply with the common conditions. According to paragraph 7, a COCOM meeting shall be convened with the objective of coordinating any withdrawal of an authorisation in line with the objectives referred to in Article 1(2) of Decision 2011/667. Paragraph 8 states that following that meeting Member States may adopt appropriate decisions with a view to withdrawing the authorisation granted.
55      It is apparent from the contested decision that, following the allegations of certain Member States that authorised operators did not comply with certain common conditions, the COCOM examined the situation with the assistance of MSS WG, after having authorised the operators in question to submit their views and to provide information to the Commission and the Member States. In that context, at the COCOM meeting held on 11 July 2013, the document entitled ‘Coordinated Approach of Measures and Road-Map to Remedy Breaches to Common Conditions [laid down in] Article 7(2) of MSS Decision No 626/2008/EC’ and the annex thereto, namely the Roadmap, were drawn up by national experts from several Member States.
56      According to the third indent of Article 4(2) of Regulation No 1049/2001, the institutions are to 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.
57      The Commission justified the application of the third indent of Article 4(2) of Regulation No 1049/2001 to the present case by stating in the contested decision that ‘disclosing the Roadmap of Measures at a moment when enforcement procedure is ongoing with the intrinsically linked process of collecting, sharing and analysing information as regards the alleged breach would undermine the purpose of ongoing investigations at Member State level and the consistent application of national enforcement rules across the European Union’.
58      As stated in the contested decision, the purpose of the Roadmap is, according to its title, to present measures to ensure that authorised operators comply with common conditions, including new intermediate steps and corresponding time limits.
59      It is also apparent from the contested decision, and is not disputed by the applicant, that the Roadmap is a ‘non-binding’ discussion document, drawn up by national experts from several Member States, which is an expression of the coordination efforts of those States to ensure implementation of the common conditions. The measures and deadlines mentioned in the Roadmap do not necessarily correspond to those decided by the various NRAs in the context of the application of their national law. It is the NRAs of the various Member States which remain responsible for the interpretation and implementation of the common conditions.
60      The Commission infers from those considerations that, since it is possible for NRAs to decide on different dates or measures, ‘the disclosure of the Roadmap of Measures would therefore be misleading by risking to be seen as the measures that must be followed by the authorised operators in all Member States. This would cause confusion in the public and might be used by Viasat, or other competitors, against NRAs at a point in time where these are investigating whether the authorised operators are compliant with the national measures and deadlines, to create external pressure on NRAs and interferences with their enforcement activities. These external pressures and interferences would undermine the serenity of investigations at national level and compromise their efficiency’.
61      According to the contested decision, the Roadmap reflects more particularly the coordination efforts of certain Member States, with the assistance of the COCOM, in the context of phase I of the implementation of the licences or authorisations granted to authorised operators pursuant to Article 1(2) of Decision 2011/667. The discussions within the COCOM and MSS WG, which led to the preparation of the Roadmap by several national experts, were intended to facilitate the common understanding of the facts supporting any alleged failure to comply with the common conditions and their seriousness in order to allow a common approach on possible measures to remedy those infringements. According to the same decision, it goes without saying that it forms part of the task of the COCOM and MSS WG to collect, share and analyse information on the alleged infringements, in so far as the collection and analysis, on the one hand, and the efforts towards a coordinated approach on appropriate enforcement measures, on the other, are intrinsically linked, as is also apparent from Article 1(2) of Decision 2011/667.
62      It is also apparent from the contested decision that, according to the Commission, ‘the disclosure of the Roadmap of Measures would therefore jeopardise a consistent enforcement of the common conditions as provided in [Decision No 2011/667 ]: as a consequence of a premature disclosure of the Roadmap of Measures, Member States would obtain less information from the authorised operators and would also restrict their sharing and analysing of information as regards the alleged breach. Therefore, the climate of mutual trust among Member States (and with the Commission) which materialised in the drafting of the Roadmap of Measures as a result of the coordination efforts, would be undermined, as would be the enforcement process. The NRAs’ capacity to take an informed, coordinated and appropriate decision in the context of ongoing enforcements would be affected. Furthermore, it would also have a negative effect on the extent to which the Commission can promote a coordinated approach on enforcement among Member States’.
63      In the contested decision, the Commission adds that ‘so far, a number of national authorities have followed up with enforcement action under phase I of enforcement of the licences or authorisations granted to the authorised operators, notably Germany, Finland, Sweden, Spain and the United Kingdom. Those Member States may need to act further under phase II of enforcement, including the possibility of imposing sanctions or even withdrawing licences. Hence, such gathering, sharing and analysing of information in the framework of the [COCOM] and [the MSS WG] as regards the alleged breach of the common conditions is for the purpose of enforcement and such work consists of investigations in the sense of Article 4(2), third indent, of Regulation 1049/2001’.
64      In the light of that statement of reasons, the applicant submits, first, that the purpose of the exception to the right of access laid down in the third indent of Article 4(2) of Regulation No 1049/2001 is to protect the purpose of investigations conducted by the EU institutions whereas the procedure which led to the adoption of the Roadmap does not fall within the scope of such an investigation.
65      In that regard, it must be noted at the outset that the concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraph 45).
66      The Court was thus led to rule that, without there being any need to identify an exhaustive definition of ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, a structured and formalised Commission procedure that had the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties had to be considered to be an investigation. That procedure need not necessarily be aimed at detecting or pursuing an offence or irregularity, so that the concept of ‘investigation’ could also cover Commission activity intended to establish facts in order to assess a given situation (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraphs 46 and 47).
67      Similarly, it has been held that, in order for a procedure to be classified as an ‘investigation’, it was not necessary for the Commission’s position in performing its functions to have taken the form of a decision within the meaning of the fourth paragraph of Article 288 TFEU. Such a position may take the form, inter alia, of a report or a recommendation (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraph 48).
68      It follows from the considerations set out in paragraphs 44 to 55 above that the Roadmap was drawn up in the context of a structured and formalised procedure, established by Article 3 of Decision 2011/667, which is intended in particular to collect and analyse information on possible breaches of the common conditions and their seriousness, for the purpose of discussing, in accordance with the objectives pursued by Article 1(2) of Decision 2011/667, the corrective measures to be adopted for the failure concerned, in particular in the form of a Roadmap with intermediate milestones and corresponding deadlines as set out in particular in recital 11 of that decision. Furthermore, as has been pointed out, inter alia, in paragraph 50 above, the monitoring of compliance with the common conditions and enforcement measures, including the final assessment of any breach of the common conditions attached to the authorisation, should be implemented at national level. Finally, it is apparent from the contested decision that a number of Member States have adopted enforcement measures in the context of phase I and are conducting investigations at national level in order to assess compliance with the common conditions and national enforcement measures and to adopt, if necessary, other appropriate measures or even, under phase II, to decide on the withdrawal of rights of use in accordance with the procedure laid down in Article 3 of Decision 2011/667.
69      The objection raised in this context by the applicant, that the application of the third indent of Article 4(2) of Regulation No 1049/2001 is precluded in the present case in so far as the exception at issue is invoked in order to protect the purpose of ‘investigations carried out at national level under the auspices of the COCOM and the MSS WG’ and not of an investigation by the Commission, must be rejected.
70      It is apparent from the case-law that the fact that an investigation is, as the case may be, conducted by public authorities of Member States and not by an EU institution does not preclude the inclusion of a document within the scope of the third indent of Article 4(2) of Regulation No 1049/2001, which is also intended to protect the interests specific to a Member State, such as the protection of inspections, investigations and audits pursued by the authorities of that Member State (see, to that effect, judgment of 12 May 2015, Unión de Almacenistas de Hierros de Espana v Commission, T‑623/13, EU:T:2015:268, paragraph 44 and the case-law cited). That is all the more so where, as in the present case, the Roadmap forms part of a coordinating procedure relating to obligations laid down by EU legislation, established by the European Union and whose purpose is the exchange and analysis of information and the coordination, at EU level, of national investigations and enforcement measures relating to possible breaches of those obligations.
71      In addition, as is apparent from the case-law cited in paragraph 67 above and as is moreover acknowledged by the parties, the alleged non-binding nature of the Roadmap is also not an obstacle to the application of the exception laid down in the third indent of Article 4(2) of that regulation.
72      Consequently, the Roadmap, which was drawn up in the context of phase I of the procedure established in Article 3 of Decision 2011/667 adopted pursuant to Article 9(3) of the MSS Decision, forms part of an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
73      The applicant claims, secondly, that, in any event, the disclosure of the Roadmap in no way jeopardises the completion of any investigation carried out or envisaged at national level, nor does the contested decision explain how such disclosure could specifically and actually undermine the interest protected by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001.
74      It is settled case-law that the exception provided for by that provision is not designed to protect investigations as such, but the purpose of those investigations (see judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 83 and the case-law cited), namely, in the present case, as can be seen, inter alia, from paragraphs 61 and 62 above, the coordination of Member States’ efforts and the consistent enforcement of the common conditions.
75      According to that case-law, the third indent of Article 4(2) of Regulation No 1049/2001 must be interpreted in such a way that this provision applies only if disclosure of the documents in question may endanger the completion of the inspections, investigations and audits referred to (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 86).
76      Admittedly, the various acts of investigation or inspection may remain covered by the exception based on the protection of inspections, investigations and audits as long as the investigations or inspections continue, even if the particular investigation or inspection which gave rise to the report to which access is sought has been completed (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 87).
77      However, to accept that the various documents relating to inspections, investigations or audits are covered by the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001 until the follow-up action to be taken has been decided would make access to such documents dependent on an uncertain, future and possibly distant event, depending on the speed and diligence of the various authorities (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 88).
78      Such an approach would be contrary to the objective of guaranteeing the widest possible public access to documents emanating from the institutions, with the aim of giving citizens the opportunity to monitor more effectively the lawfulness of the exercise of public powers (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 89).
79      It is also apparent from the case-law that the fact that the institution or body in question may have to resume its investigative activities may, where appropriate, make it possible to consider that the investigation in question is not definitively closed when the decision on access to a document is adopted (see, to that effect, judgments of 7 October 2014, Schenker v Commission, T‑534/11, EU:T:2014:854, paragraph 72, and of 7 September 2017, AlzChem v Commission, T‑451/15, not published, EU:T:2017:588, paragraphs 41 and 42 and the case-law cited).
80      The applicant’s argument that the Commission cannot claim in the present case that there is a need to protect an enforcement or investigation procedure within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, when the conclusion of the Roadmap appears to have been agreed as a common solution to the breaches found following various national enforcement procedures initiated by the NRAs and which have therefore been closed, must be rejected, since it has no factual basis.
81      As is apparent from paragraph 63 above, the Roadmap was adopted in the context of coordinated national investigation and enforcement measures taken under phase I of the enforcement of the licences or authorisations granted to authorised operators, which were still in progress in the various Member States at the time the contested decision was adopted. Moreover, those States would, where appropriate, be required to adopt other measures, including, following the start of phase II of enforcement, the withdrawal of rights of use in the event of persistence or repetition, in particular, of the breaches that gave rise to the Roadmap.
82      It follows that the national enforcement procedures relating to the alleged infringements which gave rise to the Roadmap were not closed by the adoption of that roadmap, although certain milestones had not been reached by the authorised operators at the time of the adoption of the contested decision, with the result that the various subsequent measures of investigation were liable to fall within the scope of the exception referred to in the third indent of Article 4(2) of Regulation No 1049/2001, in accordance with the case-law referred to in paragraphs 74 to 79 above. The argument in support of disclosure of the Roadmap, based on the time which elapsed between its adoption in 2013, which ‘closed’ the procedure, and the request for access in 2017, must therefore also be rejected.
83      With regard to the applicant’s complaint that the Commission has not shown how disclosure of the Roadmap could, in accordance with the requirements of the case-law referred to in paragraph 41 above, specifically and actually undermine the interest protected by the exception laid down in the third indent of Article 4(2) of Regulation No 1049/2001, this also cannot be upheld.
84      In the first place, it is apparent from paragraphs 59 and 60 above that, according to the contested decision, premature disclosure of the Roadmap would risk jeopardising the completion of the investigations at national level because of the NRAs’ ability to adopt deadlines and measures different from those agreed in the Roadmap, having regard to the way in which it is drawn up and its effects. Such premature disclosure could lead to confusion in the public as to whether or not to follow the Roadmap and that could thereby be used by the competitors of authorised operators to exert pressure on NRAs and to interfere with their enforcement activities, which would compromise the serenity and effectiveness of ongoing investigations at national level.
85      In that regard, it should be noted at the outset that it has already been held that the interest protected by that exception is the interest in allowing investigations to be conducted independently and free of pressures, whether these come from the body being audited, from another body or from the general public (see, to that effect, judgment of 12 May 2015, Technion and Technion Research & Development Foundation v Commission, T‑480/11, EU:T:2015:272, paragraph 63).
86      As was pointed out in the contested decision, Article 13 of the Rules of Procedure of the COCOM provides that ‘the committee’s discussions shall be kept confidential’ and Article 5 of the terms of reference of the MSS WG states that ‘any information received in the context of this Group will be considered as confidential and may not be disclosed subject to any indications provided by the Chair’. Although, in accordance with Article 9(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 291), the principles and conditions on public access to documents and the rules on data protection applicable to the Commission also apply to the committees, and the rights of access to the documents are guaranteed subject to the conditions and within the limits laid down by Regulation No 1049/2001, so that it is within the framework of those exceptions alone that the grounds relied upon in support of the refusal must be examined (judgment of 11 March 2009, Borax Europe v Commission, T‑166/05, not published, EU:T:2009:65, paragraph 41), the fact remains that those rules on confidentiality reflect the importance attached to the confidentiality of information and the committee’s deliberations on alleged breaches by authorised operators of the common conditions with a view to ensuring the smooth and efficient conduct of the various investigation and enforcement procedures under way, including at Member State level.
87      It must be acknowledged that, as the applicant submits, it has not been established that disclosure of the Roadmap would give rise to confusion as to the obligation on the national authorities of the various Member States, in particular the authorities of those which did not take part in drawing up the Roadmap, to follow the measures and deadlines set out therein, even though all the Member States already have access to it under the procedure established by Article 3 of Decision 2011/667.
88      However, contrary to the applicant’s allegations, the premature disclosure of the Roadmap to the public would nevertheless give rise to a real and reasonably foreseeable risk of external pressure being brought to bear on the NRAs by competitors of the authorised operators to the detriment of the smooth conduct of the investigation and enforcement activities in the course of the application of the common conditions, precisely at a time when those authorities were investigating whether the authorised operators were complying with the national measures and deadlines which were set by the various NRAs in the context of the application of their national law and which, as noted in paragraph 59 above, differed, where appropriate, from those covered by the Roadmap, which reflected a coordination effort by a few Member States without necessarily being imposed on the NRAs of the various Member States.
89      In the second place, it is apparent from paragraph 62 above that, according to the contested decision, premature disclosure of the Roadmap could jeopardise the completion of investigations at national level in so far as national authorities would obtain less information from the authorised operators and would limit the sharing and analysis of information with regard to alleged breaches, whereas an adequate and common understanding of the facts and of the seriousness of the alleged breaches is necessary for a coordinated enforcement approach by Member States as well as for effective enforcement. The climate of trust that has been built up between Member States and towards the Commission during the preparation of the Roadmap through coordination efforts would be undermined, as would the enforcement process. Such a climate of trust is necessary for the proper functioning of the enforcement process established by the MSS Decision and Article 3 of Decision 2011/667, under which the COCOM was designated as the appropriate forum for discussions on enforcement in the event of alleged breaches of common conditions and the Member States must notify specific information relating to their conclusions on the alleged infringements and the views expressed by authorised operators.
90      It should be observed in that regard that the proposed measures and the timetable for their implementation, set out in the Roadmap, are intrinsically linked to compliance with the common conditions binding the authorised operators, as the Commission rightly pointed out in the contested decision. It is therefore easy to infer from the actual content of the Roadmap the nature of the alleged breaches and their temporal aspect.
91      In those circumstances, it must be observed that, if the information contained in the Roadmap were made public, it would be likely to be exploited by the competitors of the authorised operators with a view to seeking a finding that the common conditions have not been complied with and the adoption of sanctions at a moment when the national investigation and enforcement procedures established for that purpose are still ongoing. Furthermore, the measures and time limits set out in the Roadmap necessarily reflect, as is pointed out later in the contested decision,  technical and business development related aspects of the interested parties, the disclosure of which would reveal, inter alia, information about authorised operators’ business models and capabilities to competitors.
92      Furthermore, as the Commission stated in the contested decision, premature disclosure of the information contained in the Roadmap, as a discussion document which did not set out the final findings regarding alleged breaches of the common conditions, when it was for the national authorities to carry out the final assessment of breaches of the common conditions, would risk unduly damaging the reputation of the authorised operators,  and also undermine the climate of trust necessary for the smooth functioning of ongoing national investigation and enforcement procedures to ensure consistent enforcement of the common conditions and the success of the Commission’s efforts to promote a coordinated approach to enforcement between Member States.
93      The applicant’s argument that the Commission wrongly found, in the contested decision, that the premature disclosure of the Roadmap could result in those operators adopting a less cooperative attitude towards the NRAs, even if it were well founded, is not, however, capable of calling into question, on its own, the considerations set out in paragraphs 84 to 92 above.
94      Finally, it is irrelevant, for the purpose of determining the obligations arising for the Commission from the application of Regulation No 1049/2001, the fact alleged by the applicant that certain information in the Roadmap was disclosed by the authorised operators themselves or by national authorities, since that institution is required to refuse access to a document on the basis of Regulation No 1049/2001 where the conditions laid down in that regulation are met, even where, as the applicant points out, published information does not correspond to the content of the Roadmap.
95      In those circumstances, it must be held that the examination which the Commission carried out in order to apply the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001, as set out in the contested decision, was carried out in a concrete manner. The institution was entitled to consider that the Roadmap fell within the scope of that exception and it was entitled to take the view, at the time of the adoption of the contested decision, that the disclosure of such a document, while national enforcement procedures were ongoing, as well as the closely related process of collection, sharing and analysing the information on the alleged breach, would risk undermining the purpose of ongoing investigations at national level and the application of the national enforcement rules in the European Union in accordance with the enforcement process established by the MSS Decision and Article 3 of Decision 2011/667.
96      Consequently, the first ground must be rejected.
The fourth plea in law, alleging infringement of the last clause of Article 4(2) of Regulation No 1049/2001
97      The applicant claims, in the first place, that the Commission made no serious effort to identify an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, nor has it produced sufficient reasoning to support its conclusion. The existence of such an overriding interest flows directly from the nature and purpose of the Roadmap and its relationship with the application of the common conditions. The applicant, it is claimed, clearly justified in its confirmatory application for access the reasons for the existence of an overriding public interest in the present case.
98      The applicant claims, in the second place, that it does not need the Roadmap in order to substantiate its arguments in the action for annulment which it brought before the General Court, which is registered as Case T‑245/17, or in the proceedings before the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium). In any event, the particular interest of an applicant in obtaining access to documents and its individual situation can be taken into account where they also relate to an overriding public interest.
99      The applicant claims, in the third place, that the principle of transparency is particularly pressing in the present case. There are, in the present case, specific circumstances justifying the finding of an overriding interest in the disclosure of the Roadmap to the public, which derive from the combination of the objective of the European Union’s MSS harmonisation initiative, the exclusive spectrum use rights obtained by the intervener under very precise conditions and from the intervener’s repeated failure to meet its obligations, which prevented the attainment of important public interest goals, such as the development of MSS in the European Union and ensuring a prompt and correct use of very valuable and scarce spectrum. Given the importance of the MSS initiative using the 2 GHz frequency band, which was also reflected in the relevant preparatory work, the principle of transparency would require that interested parties should be granted the right to know under which conditions the intervener had been given a second chance and should be given the opportunity to question whether this was legal when several national authorities had expressed doubts in that regard, and what direction that initiative would currently take in the European Union. According to the applicant, knowledge on the part of citizens and competitors of the administration’s activities relating to projects promised to the public, in particular where a substantial change in the manner in which they are provided is envisaged, is a guarantee of its proper functioning and in accordance with the overall objective of ensuring an open European administration.
100    The applicant submits, in the fourth place, that Regulation No 1049/2001 does not provide for any exception enabling the Commission to refuse to disclose a document where it considers that transparency has already been sufficiently provided by disclosure of some pieces of information pertaining to the requested document in the context of public consultations, or on the ground that Member States would be a better forum than the Commission in order to ensure transparency.
101    The Commission, supported by the intervener, disputes the applicant’s arguments.
102    As has been noted in paragraph 56 above, the fact that disclosure of a document undermines the protection of the purpose of investigations pursued by the institution in question does not exclude the possibility of demonstrating that there is an overriding public interest in disclosure of that document.
103    It is for the party requesting access to put forward specific circumstances that show that there is 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). 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).
104    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).
105    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).
106    In response to the applicant’s request for access to the Roadmap having regard to the existence of an overriding public interest in disclosure consisting of the public right to know, first, what stage the realisation of the project in question has reached and, second, to what extent the intervener 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 law, in so far as the determination of the conditions applicable to authorised MSS operators is a prerogative of the national authorities, including any adjustments thereto. For that reason, public consultations on possible adjustments of the national authorisations of authorised operators issued were organised in several Member States and published on the websites of NRAs. Second, the applicant is a direct competitor of the intervener and the request for access serves above all the applicant’s private interest. Third, the Commission has not identified any overriding public interest justifying disclosure of the requested document, with the result that the interests protected, in particular, by the first indent of Article 4(2) of Regulation No 1049/2001 would prevail. Fourth, that is all the more so since the present case concerns the administrative activity of the institution concerned.
107    In the first place, it follows from the foregoing considerations that, contrary to what the applicant claims, the contested decision satisfies the requirement to state reasons in so far as it sets out the various grounds in support of the refusal to recognise the existence of an overriding public interest justifying the disclosure of the requested document. As regards, more specifically, the complaint that the Commission made no serious effort to identify such an overriding public interest, it should be recalled that, as was pointed out in paragraph 103 above, it is for the applicant claiming the existence of an overriding public interest within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001 to demonstrate this by invoking specific circumstances establishing such an interest. The Commission considered that that had not been the case.
108    In the second place, the applicant has failed to demonstrate that, as it claims, the principle of transparency was especially pressing in the present case. Admittedly, the existence of special or private interests in the disclosure of the Roadmap, such as those relating to the pursuit of a legal action (see, to that effect, judgment of 21 September 2016, Secolux v Commission, T‑363/14, EU:T:2016:521, paragraph 73 and the case-law cited), does not preclude the existence of a possible objective and general overriding public interest which, therefore, justifies disclosure (see, to that effect, judgments of 25 October 2013, Beninca v Commission, T‑561/12, not published, EU:T:2013:558, paragraph 58, and of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, not published, EU:T:2015:268, paragraph 90), 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 relied on by the applicant.
109    If, as the applicant claims, there is a certain public interest in the realisation of the project at issue, in that it is intended, inter alia, 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 to stimulate effective investment, such general allegations are not sufficient in themselves to justify access to the requested document, to the detriment of the protection of investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. Similarly, the general allegations put forward in that context, in so far as they relate to the interest of the public and of the intervener’s competitors in being informed about the progress of the MSS project and in being in a position to ascertain whether and to what extent the initial terms of award were amended and implemented, cannot provide an appropriate basis for establishing that, in the present case, the principle of transparency was in some sense especially pressing and capable, therefore, of prevailing over the reasons justifying the refusal to disclose the Roadmap (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 investigations (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 91 and 93 and the case-law cited).
110    In the third place, the Commission was also right to refer in this context to the case-law according to which the public interest in transparency does not carry the same weight in relation to the administrative activity of the institution concerned, in the context of which the documents requested in the present case fall, as it does in relation to the legislative activity of that institution (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).
111    In the fourth place, the existence of an overriding public interest in disclosure of the requested document also does not follow from consideration of Article 3(3) of the MSS Decision, since, as the Commission and the intervener have rightly pointed out, that provision merely recalls the application of Regulation No 1049/2001 to the request for access to the document in question and cannot be interpreted as altering the scope of Regulation No 1049/2001 in such a way as to require greater transparency in the context of the call for tenders relating to pan-European systems providing MSS.
112    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 some public transparency was 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 requested document under the last clause of Article 4(2) of Regulation No 1049/2001, so that the fourth plea must be rejected.
The fifth plea in law, alleging infringement of Article 4(6) of Regulation No 1049/2001
113    The applicant claims in the alternative that the Commission infringed Article 4(6) of Regulation No 1049/2001 by refusing to grant at least partial access to the Roadmap.
114    First, the wording of the contested decision suggests that the principle of access to documents applies only to documents as such and not to the information contained in them, which is contrary to the case-law of the Court of Justice and the General Court.
115    Secondly, it is apparent from the wording and brevity of the relevant section of the contested decision that the Commission did not seriously consider the possibility of granting partial access to the information contained in the Roadmap, thereby ignoring its obligation to conduct a specific, individual examination of each document in a scrupulous manner in order to give full effect to the fundamental right of access to documents and to comply with the principle of proportionality. In addition, the Commission did not state its reasons for not making inaccessible only those parts of the Roadmap covered by the exceptions invoked, in view of the nature and content of the information in question, nor did it explain why the remaining parts of the Roadmap would be entirely deprived of their content and meaning in the event of redaction, or allege that such an operation would have entailed an excessive burden on its part.
116    According to the applicant, since the Roadmap is principally a document aiming to lay down new deadlines and milestones which authorised operators must meet in order to comply with their obligation under the regulatory framework on the use of the 2 GHz frequency band, it is, in any event, highly doubtful that all the information contained in the Roadmap would be covered by the exceptions invoked by the Commission.
117    Thirdly, Article 3(3) of the MSS Decision, because of its express reference to Regulation No 1049/2001, militates, at the very least, in favour of partial access to a document such as the Roadmap in which a tenderer appears to have made new commitments, replacing or supplementing those which it had made at the tender stage, and in which the Member States appear to have de facto extended certain of the time limits laid down in the MSS Decision for completion of the milestones and operability of the promised MSS.
118    The Commission, supported by the applicant, contests the applicant’s arguments.
119    It is apparent from the contested decision that the Commission considered the possibility of granting partial access to the Roadmap and that, to that end, it carried out a specific examination of the document at issue and concluded that the document in its entirety was covered by the exceptions relating to the protection of the purpose of investigations, the intervener’s commercial interests and court proceedings within the meaning of Article 4(2) of Regulation No 1049/2001, and that there was no overriding public interest justifying the disclosure of the information contained in the Roadmap.
120    As is apparent from paragraphs 56 to 95 and 102 to 112 above, the Commission was entitled to refuse full access to the Roadmap by relying solely on the protection of the purpose of investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
121    Moreover, in so far as, in view of the content of the information contained in the Roadmap, it formed a homogeneous and non-dissociable content, the Commission was also correct in arguing that, in the circumstances of the present case, the exception relating to the protection of the purposes of investigations justified the rejection of any access, even partial, to the information contained in the Roadmap, failing which the proper conduct of the investigation procedures under way would be jeopardised, for the reasons set out in paragraphs 80 to 95 above.
122    It should be added in that regard that, as pointed out in paragraph 111 above, Article 3(3) of the MSS Decision cannot be interpreted as meaning that, as the applicant claims, it extends the scope of disclosure beyond the precise limits laid down in Regulation No 1049/2001 and entails, in particular, an enhanced obligation to examine the possibility of partial access to the Roadmap, in so far as that provision merely reiterates the application of that regulation without altering its scope.
123    Consequently, the Commission did not infringe Article 4(6) of Regulation No 1049/2001 by refusing partial access to the Roadmap, so that the fifth plea must also be rejected.
124    In the light of that conclusion, it is not necessary to examine the merits of the second and third pleas in law raised by the applicant, according to which the Commission wrongly relied, first, on the exception relating to the protection of commercial interests within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001 and, second, on the exception relating to the protection of court proceedings pursuant to the second indent of Article 4(2) of that regulation, in order to refuse access to the document requested.
125    Admittedly, according to the case-law, the same document may indeed be covered by one or several 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).
126    However, it is apparent from the examination of the first, fourth and fifth pleas in law that, first, the Commission did not err in considering that disclosure of the Roadmap would undermine the protection of investigations within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, second, the applicant has not demonstrated the existence of an overriding public interest which would nevertheless justify giving access to the requested document and, third, the Commission did not err in refusing any disclosure, even partial, of its contents pursuant to Article 4(6) of Regulation No 1049/2001 in order to protect the investigations in question.
127    As the exception based on the protection of investigations in itself justifies non-disclosure of the Roadmap, for reasons of procedural economy, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of commercial interests and the protection of court proceedings 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)).
128    In the light of all the foregoing considerations, the action must be dismissed without there being any need to rule on the Commission's head of claim seeking to exclude the documents referred to in the footnotes to the statement of modification of the application solely in the form of a link referring to a website.
Costs
129    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.
130    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.
131    In the present case, it must be held that, as the applicant points out, 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 period 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, in order to safeguard its rights, had no choice but to bring an action for annulment of that implied decision refusing access pending a possible express decision of the Commission, the adoption of which led the applicant to submit a statement of modification of the initial application.
132    It therefore appears appropriate — and on an equitable assessment of the case the Court decides, in the circumstances of the present case — that the applicant, which has been essentially 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 pay one quarter of the costs incurred by the applicant and the intervener.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.      Declares that it is no longer necessary to rule on the legality of the European Commission’s implied decision rejecting the confirmatory application for access by ViaSat, Inc. of 31 May 2017 to the ‘Roadmap of Measures Towards the Compliance of Selected and Authorised Mobile Satellite Services (MSS) Operators with Common Conditions of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008, Including Intermediate New Steps and Corresponding Time Limits’;
2.      Dismisses the action as to the remainder;
3.      Orders ViaSat to pay, in addition to three quarters of its own costs, three quarters of the costs incurred by the Commission and by Inmarsat Ventures Ltd;
4.      Orders the Commission to pay, in addition to one quarter of its own costs, one quarter of the costs incurred by ViaSat and by Inmarsat Ventures Ltd.
Kornezov
Buttigieg
Kowalik-Bańczyk
Delivered in open court in Luxembourg on 28 May 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.