62022TJ0602_RES
Case T‑602/22
Veneziana Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas)
v
European Commission
Judgment of the General Court (Fourth Chamber) of 24 January 2024
(Access to documents – Regulation (EC) No 1049/2001 – Document disclosed in the context of an EU Pilot procedure concerning the repayment of VAT – Document originating from a Member State – Refusal to grant access – Prior agreement of the Member State – Exception relating to the protection of court proceedings – Obligation to state reasons)
Action for annulment – Pleas in law – Lack of or inadequate statement of reasons – Separate plea in law from the one concerning substantive legality
(Arts 263 and 296 TFEU)
(see paragraph 18)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Obligation to state reasons – Scope
(Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4)
(see paragraph 21)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Power of the Member State to request the institution not to disclose documents – Obligation on the Member State to submit a specific formal application to bring an opposition – None
(European Parliament and Council Regulation No 1049/2001, Art. 4(5))
(see paragraph 23)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Obligations of the institution concerned as regards consultation of the Member State before adopting a decision – Infringement – Consequences
(Art. 4(3) TEU; European Parliament and Council Regulation No 1049/2001, Art. 4(4) and (5))
(see paragraphs 24, 25)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Power of the Member State to request the institution not to disclose documents – Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))
(see paragraphs 33, 35-37)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Power of the Member State to request the institution not to disclose documents – Procedural implications – Obligation on the Member State and the EU institution to state reasons for the decision refusing access – Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))
(see paragraphs 38-41, 48-50)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Documents originating from a Member State – Power of the Member State to request the institution not to disclose documents – Jurisdiction of EU judicature to review whether the refusal was well founded – Full examination of the exceptions invoked on the basis of the substantive assessment carried out by that Member State
(European Parliament and Council Regulation No 1049/2001, Art. 4(1) to (3) and (5))
(see paragraph 52)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of court proceedings – Scope – Documents which have not been drawn up solely for the purposes of legal proceedings, but which are likely to affect the ability of the national authorities concerned to defend themselves in such proceedings – Included – Conditions
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)
(see paragraphs 54-58, 61, 62, 64-67)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of court proceedings – Scope – Documents which have not been drawn up solely for the purposes of legal proceedings, but which are likely to affect the ability of the national authorities concerned to defend themselves in such proceedings – Guarantee of equality of arms in those national proceedings – Criteria for assessment – Likelihood of a reference for a preliminary ruling from the national court – Precluded
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent)
(see paragraphs 69-71)
Résumé
In an action seeking annulment of a decision of the European Commission refusing access to a document originating from a Member State, in its judgment, the General Court clarifies the distinction between the formal requirement to state reasons for a refusal of access to documents and the substantive legality of such a refusal. It also stipulates the methods of obtaining the prior agreement provided for in Article 4(5) of Regulation No 1049/2001, (
1
) regarding the disclosure of documents originating from Member States, and the conditions for the application of the exception based on the protection of court proceedings before the national courts, (
2
) in the presence of such documents and in the context of a possible reference for a preliminary ruling.
In the context of an EU Pilot procedure (
3
) opened following the complaint of the applicant, Veneziana Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas), the Commission has asked the Italian authorities for clarification concerning the arrangements for repayment of VAT unduly paid on the Italian Environmental Hygiene Tax (TIAI). After being informed by the Commission that, having regard to the response from the Italian authorities, it had decided not to open an infringement procedure for failure to comply with EU law by those authorities, the applicant asked the Commission for a copy of the Italian authorities’ response.
In its initial response, the Commission refused access to the Italian authorities’ response, on the ground that its disclosure would undermine the protection of ongoing court proceedings in Italy, pursuant to the second indent of Article 4(2) of Regulation No 1049/2001. By the contested decision, (
4
) the Commission confirmed the refusal to grant access, following the objection to the disclosure of that letter by the Italian authorities pursuant to Article 4(5) of Regulation No 1049/2001, on the basis of the exception provided for in the second indent of Article 4(2) of that regulation.
Findings of the Court
In the first place, the Court recalls that the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is correct, the latter being a matter which goes to the substantive legality of the contested measure. A measure which lacks an adequate statement of reasons, for the purpose of the formal obligation to state reasons, is one which does not make it possible to understand why, on what basis or for what reason it was adopted, whereas the reasons for a measure and its justifications may be sufficiently known and comprehensible, but inadequate to justify it in law, in that they are not substantiated, clear or compliant with the relevant provisions.
As regards, in the second place, the applicant’s line of argument regarding the allegedly unlawful reliance of the contested decision on Article 4(5) of Regulation No 1049/2001, in the absence of any effective objection to disclosure by the Italian authorities, in particular before the initial response of the Commission, the Court holds that it does not follow either from that provision or from the case-law that, in order to be able to lodge an objection, the Member State which is the author of the document at issue must first make a formal request specifically to the institution concerned, nor is it necessary for the Member State to rely expressly on that provision. There is nothing in the wording of that provision, which is a procedural provision dealing with the process of adoption of an EU decision to indicate that the Member State must submit a formal request, without which the Member State’s objection cannot be taken into account in the adoption of that decision. Thus, the Member State is not required to proceed in two stages in order to object to the disclosure of one of its documents, first by asking the Commission not to disclose the document in question without its prior agreement and then by refusing to give that agreement.
It also follows that the fact that the Member State concerned is consulted under Article 4(4) of Regulation No 1049/2001 does not preclude the subsequent application of Article 4(5) of that regulation. Those two provisions were not considered to be mutually exclusive, but rather, as a provision relating to third parties in general (paragraph 4) and a provision applying to specific third parties, namely the Member States, and reiterating Declaration No 35 annexed to the Treaty of Amsterdam (paragraph 5).
Besides, in order to ensure effective application of Article 4(5) of Regulation No 1049/2001, in particular by giving the Member State concerned the possibility of requiring its prior agreement to disclose a document of which it is the author, the Court notes that it is also necessary for the Member State to be informed of the existence of a request for access to that document, which is precisely the subject of the consultation provided for in Article 4(4) of that regulation.
In the third place, the Court rejects the applicant’s argument, according to which the mere assertion of the particular plausibility of a reference for a preliminary ruling by the Italian courts concerned is not sufficient to justify the refusal to disclose the Italian authorities’ letter.
However, it recalls that, in order for the exception relating to the protection of court proceedings to apply to documents which have not been drawn up in the context of specific court proceedings, the documents requested must, at the time of adoption of the decision refusing access to those documents, have a relevant link either with a dispute pending before the EU Courts, in respect of which the institution concerned is invoking that exception, or with proceedings pending before a national court, on condition that they raise a question of interpretation or validity of an act of EU law so that, having regard to the context of the case, a reference for a preliminary ruling appears particularly likely.
However, that case-law concerns the documents drawn up by the institutions themselves, and not, as in the present case, documents originating from Member States and sent to an institution. In the case of a document drawn up by an institution, the undermining of equality of arms and of the ability of the institution concerned to defend itself can be brought only in the context of proceedings in which it takes part, that is to say, proceedings taking place in principle before the EU Courts.
By contrast, in the case of a document originating from a Member State and linked to proceedings pending before the national courts to which the State is a party, as in the present case, it is the guarantee of equality of arms in those national proceedings which is taken into account. It follows that the question whether a reference for a preliminary ruling by the Italian courts hearing the national proceedings at issue was particularly plausible is irrelevant.
(
1
)	Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
(
2
)	Pursuant to the second indent of Article 4(2) of Regulation No 1049/2001.
(
3
)	EU Pilot procedure 9456/19/TAXUD concerning the repayment of value added tax (VAT) unduly paid on the Italian Environmental Hygiene Tax (tariffa di igiene ambientale, established by Article 49 of decreto legislativo n. 22 (Legislative Decree No 22) of 5 February 1997).
(
4
)	Commission Decision C(2022) 5221 final of 15 July 2022.