Judgment of the General Court (Fifth Chamber) of 11 December 2014 —

Saint-Gobain Glass Deutschland v Commission

(Case T‑476/12)

‛Access to documents — Regulation (EC) No 1049/2001 — Regulation (EC) No 1367/2006 — Documents relating to installations of the applicant situated in Germany and concerned by the scheme for greenhouse gas emission allowance trading — Partial refusal of access — Environmental information — Second sentence of Article 6(1) of Regulation No 1367/2006 — Exception relating to protection of the decision-making process — Documents originating from a Member State — Objection by the Member State — Article 4(3) and (5) of Regulation No 1049/2001’

1. Judicial proceedings Decision replacing the contested decision during the proceedings — New factor — Extension of the initial pleadings (Rules of Procedure of the General Court, Art. 48(2)) (see para. 31)

2. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness (Rules of Procedure of the General Court, Art. 48(2)) (see para. 36)

3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Overriding public interest justifying the disclosure of documents — Concept — Burden of proof — Requirement that the institution should weigh the opposing interests (European Parliament and Council Regulation No 1049/2001, Art. 4(3)) (see paras 37, 66, 97, 98, 101, 103)

4. 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 — 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 paras 46, 119-124, 134-136)

5. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and adoption — Requirement that the institution should examine the documents specifically and individually — Scope — Refusal to grant access — Jurisdiction of EU judicature to review whether refusal well founded (European Parliament and Council Regulation No 1049/2001, eleventh recital and Art. 4) (see paras 47-50, 107)

6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Conditions — Concrete, actual and serious undermining of the audit process — Refusal based on the need to protect the process from external pressures — Pending administrative procedure concerning free allocation of greenhouse gas emission quotas — Lawfulness — Justification of access on the basis of Regulation No 1367/2006 — None (European Parliament and Council Regulations No 1049/2001, Art. 4(3), and No 1367/2006, second recital and Art. 9; European Parliament and Council Directive 2003/87, Art. 10a; Commission Decision 2011/278, Art. 15(1)) (see paras 51, 70, 71, 80-83, 87, 88, 91, 92)

7. EU institutions — Right of public access to documents — Request for access concerning environmental information — Application of Regulation No 1367/2006 as a lex specialis derogating from Regulation No 1049/2001 — Effect — Obligation to weigh the interests at stake — Obligation to weigh the interests at stake (Art. 15 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), and No 1367/2006, eighth and fifteenth recitals and Arts 3 and 6(1)) (see paras 52, 53, 55, 56, 63, 66, 99)

8. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the decision-making process — Overriding public interest justifying the disclosure of documents — Concept — Subjective interest of the person concerned in obtaining rectification of information concerning him — Not included (European Parliament and Council Regulation No 1049/2001, Art. 4(3)) (see para. 103)

9. 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 institution not to disclose them without prior agreement — No need for the Member State to have previously made an application for non-disclosure — (European Parliament and Council Regulation No 1049/2001, Art. 4(4) and (5)) (see paras 129, 130)

Re:

ACTION for annulment, first, of the Commission’s implied decision of 4 September 2012 and, in the alternative, of the Commission’s implied decision of 25 September 2012 and, secondly, of the Commission’s decision of 17 January 2013, refusing to grant full access to the list sent by the Federal Republic of Germany to the Commission, in the framework of the procedure set out in Article 15(1) of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1), to the extent that that document contains information relating to certain installations of the applicant, situated in German territory, relating to provisional allocations and activities and capacity levels in relation to carbon dioxide (CO2) emissions between 2005 and 2010, the efficiency of the installations and the annual emission quotas provisionally allocated for the period between 2013 and 2020.

Operative part

The Court:

1. Dismisses the action;