Judgment of the General Court (First Chamber) of 9 October 2018 –

Erdősi Galcsikné v Commission

(Case T‑632/17)

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to EU Pilot procedure No 8572/16 CHAP(2015) 00353 — Refusal of access — Article 4(2) third indent of Regulation No 1049/2001 — Exception relating to protection of the purpose of investigations — General presumption of confidentiality — Overriding public interest)

1. Action for annulment — Actionable measures — Concept — Decision refusing access to documents of an institution following a confirmatory application — Included (Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8) (see para. 15)

2. Action for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Access to documents — Inadmissibility (Art. 263 TFEU) (see para. 16)

3. Actions for failure to fulfil obligations — Right of the Commission to bring judicial proceedings — Establishment of the EU Pilot mechanism to detect possible failures to fulfil obligations under EU law — Purpose (Art. 258 TFEU) (see paras 26, 27)

4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Application to documents concerning an EU Pilot procedure — General presumption that the exception to the right of access applies — Limits — Rebuttable (European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent) (see paras 28-31, 39)

5. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Overriding public interest justifying the disclosure of documents — Invocation of the principle of transparency — Need to put forward particular considerations in relation to the case (European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent) (see paras 40, 41)

6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Overriding public interest justifying the disclosure of documents — Meaning — Interest in obtaining disclosure of documents relating to an EU Pilot procedure in progress concerning the compatibility of national rules with EU law in order to ensure compliance with that law in the Member State concerned — Not included (European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent) (see paras 44-48)

7. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Overriding public interest justifying the disclosure of documents — Distinction from the principle of transparency (European Parliament and Council Regulation No 1049/2001, Art. 4(2)) (see para. 49)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of the decisions of the Commission of 1 June and 17 July 2017 refusing to grant the applicant access to documents relating to EU Pilot procedure No 8572/16 CHAP(2015) 00353.

Operative part

The Court:

1. Dismisses the action;

2. Orders Éva Erdősi Galcsikné to bear her own costs and to pay those incurred by the European Commission;