Case T‑440/17

Arca Capital Bohemia a.s.

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a procedure for reviewing State aid — Refusal to grant access — Exception relating to the protection of commercial interests of third parties — Exception relating to the protection of the purpose of inspections, investigations and audits — General presumption of confidentiality — Obligation to carry out a specific and individual examination — Overriding public interest)

Summary — Judgment of the General Court (Second Chamber), 11 December 2018

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Overriding public interest in the disclosure of documents — Concept — Individual interest of the applicant — Not included

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Public interest in the disclosure of documents — Reliance on the principle of transparency — Need to put forward specific considerations in relation to the case

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Overriding public interest in the disclosure of documents — Concept — Interests relating to control of the management of public funds and to control of privatisation procedures, as well as to the stability of the banking sector in a Member State — Calling into question of the Commission’s assessments in the context of a State aid decision — Precluded

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Scope — Application to administrative files relating to procedures for reviewing State aid — General presumption that the exception applies to the right of access to all the documents on the administrative file — Maintenance of the presumption after closure of the procedure

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Requirement that the institution should examine the documents specifically and individually — Possibility to base reasoning on general presumptions applying to certain categories of documents — Limits — Rebuttal of that presumption — Requirement to rely on circumstances such as to establish the existence of an overriding interest which outweighs the reasons justifying refusal of access

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Obligation to grant partial access to data not covered by the exceptions — Application to documents falling within a category covered by a general presumption of refusal of access — Precluded

See the text of the decision. (see paras 15, 16)

The response to an initial application within the meaning of Article 7(1) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is only the first position adopted, which, in principle, is not actionable, since it does not produce legal effects, failing exceptional circumstances. The situation is different, in particular, where the response to the initial application is vitiated by a formal defect in that it failed to inform the applicant of its right to make a confirmatory application, or where an institution adopts a definitive position with a response to an initial application. (see paras 19, 20)

See the text of the decision. (see paras 31-33)

See the text of the decision. (see paras 35-37, 56, 60, 61, 72)

For the purposes of interpreting the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the existence of a general presumption, according to which the disclosure of the documents in the administrative file relating to the review of State aid would, in principle, undermine the commercial interests of the undertakings concerned by that procedure, must be recognised. The right to consult the administrative file in the context of review proceedings opened in accordance with Article 108(2) TFEU and the right of access to documents pursuant to Regulation No 1049/2001 are legally distinct, but the fact remains that they lead to a comparable situation from a functional point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain all the observations and documents submitted to the Commission. In that regard, the legislation governing State aid review procedures lays down strict rules as regards the treatment of commercially sensitive information obtained or findings made in those proceedings, and Article 30 of Regulation 2015/1589 laying down detailed rules for the application of Article 108 TFEU requires that the information which is gathered through the application of that regulation and is covered by professional secrecy is not disclosed. In those circumstances, generalised access, on the basis of Regulation No 1049/2001, to the documents relating to the administrative file concerning the State aid review procedure would be such as to jeopardise the balance which the EU legislature wished to ensure, in Regulation 2015/1589, between (i) the obligation on the Member State concerned and, as the case may be, the willingness of third parties to communicate possibly sensitive commercial information to the Commission in order that it may assess the compatibility of State aid with the internal market and (ii) the guarantee of increased protection, by virtue of the requirement of professional and business secrecy, for the information so provided to the Commission. If persons other than the Member State concerned by the State aid review procedure — which is the only party entitled by the rules on State aid to have access to the file of that procedure — were able to obtain access to the documents relating to such a procedure on the basis of Regulation No 1049/2001, the system introduced by those rules would be undermined. That conclusion applies irrespective of whether the application for access concerns a procedure that has already been closed or a pending procedure. Having regard to the interests protected in the context of a procedure for reviewing State aid, the publication of sensitive information concerning the economic activities of the undertakings involved in that procedure, inter alia the beneficiary of the aid, is likely to harm their commercial interests, regardless of the fact that the procedure under Article 108 TFEU has already been closed. (see paras 41, 42, 44-46, 48)

The information covered by professional secrecy may be both confidential information and business secrets. As is apparent from recitals 10 and 11 of the Commission Communication on professional secrecy in State aid decisions, business secrets in files relating to a State aid review procedure, which relate, in the first place, to the beneficiary of the aid but also to a third party, may concern, inter alia, methods of assessing manufacturing and distribution costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost price structure, sales policy, and information on the internal organisation of the undertaking. That information, which is not in the public domain, could be used profitably by other undertakings if it were to be disclosed since it gives the undertaking which possesses it an economic, strategical or organisational and structural advantage. Such disclosure is, therefore, liable to undermine the commercial interests of the beneficiary of the aid or a third party involved in the State aid review procedure. As that information has been gathered through the application of Regulation 2015/1589 laying down detailed rules for the application of Article 108 TFEU, it is, therefore, covered by professional secrecy. (see paras 53, 54)

See the text of the decision. (see para. 63)

It is for the person alleging the existence of an overriding public interest in disclosure of documents pursuant to Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents to state the specific circumstances which justify the disclosure of the documents concerned. As regards documents forming part of a procedure for reviewing State aid that led to a Commission decision finding that the State aid granted in the course of the privatisation and restructuring of national banks was compatible with the internal market, the applicant cannot successfully rely on an interest relating to control of the management of public funds and control of privatisation procedures, as well as the interest allegedly arising from a potential threat to the stability of the banking sector in the Member State concerned on account of the alleged unlawfulness of the privatisation operations in respect of a national bank. The applicant cannot, in proceedings before the EU judicature relating to the decision refusing to grant access to the documents requested, call into question the Commission’s assessments as to the compatibility of the aid through allegations relating to the potential unlawfulness of the measures adopted by the Member State concerned. It is not for the applicant or for the EU judicature to question this. On the contrary, if the national proceedings, inter alia those concerning the misconduct of certain individuals involved in the operations for the privatisation of a national bank, are ongoing, then it is in those proceedings that the protection of the public interest relating to control of the management of public funds by State bodies could be ensured. The access to documents requested by the applicant can, therefore, come only under its potential private interest in supporting its own convictions as to the unlawfulness of the conduct of the bodies of the Member State concerned and, as the case may be, in proving them in the course of the judicial proceedings brought by it or in publicly denouncing any errors committed in the course of those proceedings. (see paras 73, 79-81)

See the text of the decision. (see para. 76)