Judgment of the General Court (Second Chamber) of 26 March 2020 –

ViaSat v Commission

(Case T‑734/17)

(Access to documents — Regulation (EC) No 1049/2001 — Mobile satellite system operator — Documents provided to the Commission by a candidate selected in a call for tenders — Implied and express refusal of access — Exception relating to the protection of the commercial interests of a third party — Overriding public interest — Refusal of partial access)

1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Commission not complying with time limits for responding to an application for access — Implicit rejection decision — Repeal by the adoption of an explicit rejection — No possibility of bringing proceedings against the implied decision (European Parliament and Council Regulation No 1049/2001, Arts 7 and 8) (see paras 16, 17)

2. Judicial proceedings — Decision or regulation replacing the contested measure in the course of proceedings — Application to modify the application — Conditions (Rules of Procedure of the General Court, Art. 86(1) and (2)) (see para. 19)

3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Duty of the institution to assist the applicant before dismissing his request (European Parliament and Council Regulation No 1049/2001, Art. 6(2)) (see paras 24, 25)

4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Refusal to grant access — Obligation to state reasons — Scope — Possibility of relying on general presumptions applicable to certain categories of documents (Art. 296 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), 1st indent) (see paras 38-41)

5. 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 — Bids submitted by tenderers for a public contract — Included — General presumption that the exception to the right of access applies (European Parliament and Council Regulation No 1049/2001, Art 4(2), 1st indent) (see paras 42, 43, 55, 57-59, 61-63, 97)

6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Refusal to grant access — Possibility of relying on general presumptions applicable to certain categories of documents — No obligation to examine individually all the documents covered by a global request for access (European Parliament and Council Regulation No 1049/2001, Art. 4) (see paras 45, 65, 92)

7. 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 justifying the disclosure of documents — Invocation of the principle of transparency — Need to put forward particular considerations in relation to the case — Burden of proof (European Parliament and Council Regulation No 1049/2001, Art. 4(2)) (see paras 44, 76-79, 81-86, 97)

8. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Reliance on a general presumption that the exception applies to the documents requested — Effects of applying the presumption — Disclosure of the content in part — Not included (European Parliament and Council Regulation No 1049/2001, Art. 4(2), 1st indent and (6)) (see paras 92-94, 97, 98)

9. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the principle of access to documents — Refusal based on several exceptions — Whether permissible (European Parliament and Council Regulation No 1049/2001) (see para. 96)

Re:

Application under Article 263 TFEU, first, for annulment of the Commission’s implied decision rejecting the applicant’s confirmatory application of 10 July 2017 for access to any information provided by Inmarsat plc, Inmarsat Ventures or its subsidiaries on the occasion of their participation in the European Union call for tenders which led to the adoption of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (OJ 2009 L 149, p. 65) and to any exchange of information in that regard between Inmarsat and the Commission, and, secondly, for annulment of Commission Decision C(2018) 180 final of 11 January 2018 refusing access to that information.

Operative part

The Court:

1. Declares that there is no need to rule on the lawfulness of the European Commission’s implied decision rejecting the applicant’s confirmatory application of 10 July 2017 for access to all the information provided by Inmarsat plc, Inmarsat Ventures Ltd or its subsidiaries on the occasion of their participation in the European Union call for tenders which led to the adoption of Commission Decision 2009/449/EC of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) and to any exchange of information in that regard between Inmarsat and the Commission;

2. Dismisses the action as to the remainder;

3. Orders ViaSat, Inc., to bear three quarters of its own costs and to pay three quarters of the costs incurred by the Commission and by Inmarsat Ventures;