Judgment of the General Court (Fourth Chamber) of 12 February 2019 –

Hércules Club de Fútbol v Commission

(Case T‑134/17)

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a procedure for reviewing State aid — Refusal of access — Lis alibi pendens — Exception relating to protection of the purpose of inspections, investigations and audits — Exception relating to protection of the commercial interests of a third party — Obligation to conduct a specific and individual examination — Overriding public interest)

1. Judicial proceedings — Objection of lis pendens — Same parties, subject-matter and submissions in two actions — Inadmissibility of the second action (see para. 23)

2. 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 — 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 — 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 (Art. 108 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent) (see paras 32-38, 42, 43)

3. 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 — 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 — Request concerning only certain documents in the file — Irrelevant (European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent) (see para. 45)

4. 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 — Concept — Pursuit of an action for annulment — Not included (European Parliament and Council Regulation No 1049/2001, Art. 4(2)) (see paras 52-54)

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 — 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 — Application for access formulated during the court proceedings concerning the decision on the substance — Admissibility of the refusal (Art. 108 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent) (see paras 55, 56)

Re:

Action under Article 263 TFEU seeking annulment of Commission Decision C(2017) 736 final of 2 February 2017, refusing Hércules Club de Fútbol access to documents relating to the procedure for reviewing State aid SA.363872.

Operative part

The Court:

1. Dismisses the action;