Judgment of the General Court (Fifth Chamber) of 11 July 2018 –

Rogesa v Commission

(Case T‑643/13)

(Access to documents — Regulation (EC) No 1049/2001 — Scheme for greenhouse gas emission allowance trading — Request for access to information relating to the determination of the most efficient 10% of steel industry installations — Refusal of access — Exception relating to the protection of the commercial interests of a third party — Overriding public interest — Regulation (EC) No 1367/2006 — Concept of information relating to emissions into the environment — Observance of time-limits)

1. EU institutions—Right of public access to documents—Regulation No 1049/2001—Failure by the Commission to comply with time limits prescribed for replying to a confirmatory request for access—Implicit rejection decision—Maintenance of the Commission’s power to reply outside the time limits to the request for access (Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8) (see paras 43-46)

2. EU institutions—Right of public access to documents—Regulation No 1049/2001—Purpose—Exceptions to the right of access to documents—Strict interpretation and application (Art. 15(3) TFEU; European Parliament and Council Regulations No 1049/2001, Recital 4 and Arts 1 and 4, and No 1367/2006, Art. 1) (see paras 62-64)

3. 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, Recital 2 and Art. 4) (see paras 65-67)

4. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of the commercial interests of a given person—Scope (European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent) (see para. 69)

5. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Protection of commercial interests—Refusal to grant access—Obligation to state reasons—Scope (European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent) (see para. 70)

6. EU institutions—Right of public access to documents—Request for access concerning environmental information—Application of Regulation No 1367/2006 as a lex specialis in relation to Regulation No 1049/2001—Effect—Requirement that exceptions to the right of access be interpreted strictly (European Parliament and Council Regulations No 1049/2001, Art. 4, and No 1367/2006, Recital 15 and Arts 3 and 6(1)) (see para. 71)

7. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Refusal based on a non-disclosure agreement concluded with a third party—Not permissible (Charter of Fundamental Rights of the European Union, Art. 42; European Parliament and Council Regulations No 1049/2001, Art. 4, and No 1367/2006, Recital15) (see para. 74)

8. EU institutions—Right of public access to documents—Regulation No 1049/2001—Exceptions to the right of access to documents—Application for a maximum period of 30 years—Possibility of reducing that period on the basis of Directive 2016/943—Precluded (European Parliament and Council Regulation No 1049/2001, Art. 4(7); European Parliament and Council Directive 2016/943, Art. 8) (see para. 90)

9. EU institutions—Right of public access to documents—Request for access concerning environmental information—Regulation No 1367/2006—Information relating to emissions into the environment—Meaning—Broad interpretation (European Parliament and Council Regulation No 1367/2006, Art. 6(1)) (see paras 100, 105, 106)

10. EU institutions—Right of public access to documents—Request for access concerning environmental information—Regulation No 1367/2006—Information relating to emissions into the environment—Meaning—Sufficiency of a direct link between the information and the relevant emissions—Not permissible (Art. 339 TFEU; European Parliament and Council Regulations No 1049/2001, Art. 4(2), first indent, and No 1367/2006, Recital 2 and Art. 2(1)(d)) (see paras 101, 103)

Re:

Application on the basis of Article 263 TFEU, seeking the annulment of the Commission decision dated 25 September 2013 refusing to grant the applicant access to documents which contain information on the basis of assessment used by the Commission to determine the most efficient 10% of the installations used as a starting point for defining the principles for setting ex ante benchmarks, in accordance with Article 10a of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

Operative part

The Court:

1. Dismisses the action;