Case T‑128/14

Daimler AG

v

European Commission

(Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the procedure initiated pursuant to Article 29 of Directive 2007/46/EC allowing a Member State to refuse to register vehicles that present a serious risk to road safety or seriously harm the environment or public health — Refusal of access — Exception relating to the protection of inspections, investigations and audits — General presumption — Aarhus Convention — Refusal to grant access to the file — Article 41 of the Charter of Fundamental Rights)

Summary — Judgment of the General Court (Fifth Chamber), 4 October 2018

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 — General presumption of application of the exception to documents relating to an EU Pilot procedure — Applicability of the presumption to documents relating to a procedure initiated under Article 29 of Directive 2007/46 — Not included

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 carried out by the Commission on the basis of Article 29 of Directive 2007/46 — General presumption that the exception applies to the right of access to all the documents on the administrative file — Justification on general grounds — Not permissible

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 — Concept of investigation — Procedure conducted by the Commission under Article 29 of Directive 2007/46 — Included

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Requirement that the institution should examine the documents specifically and individually — Scope — Exclusion from the obligation — Possibility to base reasoning on general presumptions applying to certain categories of documents — Limits

EU institutions — Right of public access to documents — Request for access concerning environmental information — Application of Regulation No 1367/2006 as lex specialis in relation to Regulation No 1049/2001 — Effect — Exceptions to the right of access to documents — Scope — Protection of the purpose of inspections, investigations and audits — Not included

International agreements — European Union Agreements — Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention) — Effects — Primacy over secondary legislation of the European Union — Assessment of the legality of an EU measure in the light of that convention — Conditions — Invocability of point (c) of the first subparagraph of Article 4(4) of the Convention — Lack

Where, in the context of an investigation conducted by the Commission on the basis of Article 29 of Directive 2007/46, establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, a motor vehicle manufacturer sends a letter to the Commission by which, on the one hand, it takes a position on the refusal by a Member State to register certain vehicles and, on the other hand, it requests access to the administrative file of the investigation procedure, the Commission’s refusal of access is not capable of producing legal effects that could already affect the interests of that motor vehicle manufacturer before any final decision is adopted by the Commission, as provided for in Article 29(2) of Directive 2007/46. In the case of acts or decisions adopted by a procedure involving several stages, only acts which definitively establish the position of the institution concerned at the conclusion of the procedure constitute, in principle, acts that may be the subject of an action for annulment, while preliminary or purely preparatory measures cannot be the subject of an action for annulment. In that regard, in competition matters, even though they may constitute an infringement of the rights of the defence, Commission measures refusing access to the file produce in principle only limited effects, characteristic of a preparatory measure forming part of a preliminary administrative procedure. Only measures immediately and irreversibly affecting the legal situation of the undertakings concerned would be of such a nature as to justify, before completion of the administrative procedure, the admissibility of an action for annulment. (see paras 67, 68, 72, 74)

See the text of the decision. (see paras 86-91, 93, 94)

See the text of the decision. (see paras 102, 104)

See the text of the decision. (see paras 111-114, 117)

The concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs. A structured and formalised Commission procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties constitutes such an investigation. Those procedures do not necessarily have to have the purpose of detecting or pursuing an offence or irregularity. The concept of ‘investigation’ could also cover a Commission activity intended to establish facts in order to assess a given situation. The procedure laid down in Article 29 of Directive 2007/46 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles is an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. The procedure provided for in Article 29 of the directive is a structured and formalised procedure that has the purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the EU and FEU Treaties. (see paras 130-136)

In order for a general presumption to be validly used against the person requesting access to documents on the basis of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the requested documents must form part of the same set of documents or be of the same nature. Moreover, the application of general presumptions is essentially dictated by the requirement to ensure the correct functioning of the procedures in question and to ensure that their objectives are not compromised. Thus, the recognition of a general presumption may be based on the incompatibility of access to the documents in certain procedures with the proper conduct of those procedures and on the risk that the procedures may be undermined, it being understood that the general presumptions enable the integrity of the conduct of the procedure to be preserved by restricting interference by third parties. Lastly, the application of specific rules provided for by a legal act measure to a procedure conducted before an EU institution for the purposes of which the requested documents were produced is one of the criteria capable of justifying recognition of a general presumption. (see paras 138-140)

In so far as the possibility of relying on general presumptions has the effect not only of restricting the fundamental principle of transparency laid down in Article 11 TEU, Article 15 TFEU and Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, but also of limiting in practice access to the documents at issue, the use of such presumptions must be founded on solid and convincing reasons. Thus, in the case of a request for access to the administrative file of the investigation procedure conducted by the Commission on the basis of Article 29 of Directive 2007/46 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, in order to be able to rely as against the applicant on a general presumption of non-disclosure of the requested documents, the Commission must explain how that presumption is necessary in order to ensure the proper functioning of the procedure at issue and to ensure that the objectives of that procedure are not undermined. In that regard, the invoking of grounds such as the need to ensure an atmosphere of discretion and confidence with the Member States and to avoid interference by third parties in the ongoing investigation are not convincing, since those reasons are valid for any ongoing investigation procedure initiated in regard to a Member State. To accept that a general presumption of non-disclosure might be applied for such reasons would run counter to the settled principle that presumptions must be interpreted and applied strictly, since they constitute an exception to the rule that the institution concerned is obliged to make a specific and individual examination of every document which is the subject of request for access and also, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union. (see paras 155-159)