Case T‑110/15

International Management Group

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to an OLAF investigation — Access refused — Exception concerning the protection of the purpose of inspections, investigations and audits — Obligation to carry out a specific and individual examination — Category of documents’

Summary — Judgment of the General Court (Eighth Chamber), 26 May 2016

European Anti-Fraud Office (OLAF) — Regulation No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) — Confidentiality of investigations — Unlawful disclosure of an investigation file — Fact not justifying, in favour of the person concerned by the investigation, derogation from the confidentiality of the file

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 — Overriding public interest justifying the disclosure of documents — Concept — Individual interest of the person concerned to defend himself against allegations made following publication of a newspaper article — Not included

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

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 — Application to documents on the administrative file of an investigation of the European Anti-Fraud Office (OLAF) — General presumption that disclosure of the said documents will undermine protection of the interests involved in such an investigation

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 — Purpose

See the text of the decision. (see para. 27)

It is open to an EU institution faced with a request for access to documents to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. The ratio legis behind the application of such general presumptions is connected with the overriding need to ensure the proper operation of the procedures in question and to ensure that their objectives are not undermined. Accordingly, a general presumption may be recognised on the basis that access to the documents involved in certain procedures is incompatible with the proper conduct of those procedures and that the risk that those procedures could be undermined, on the understanding that general presumptions ensure that the integrity of the conduct of the procedure can be preserved by limiting intervention by third parties. The application of specific rules provided for by a legal measure relating to a procedure conducted before an EU institution for the purposes of which the documents requested were produced is one of the criteria for recognising a general presumption. (see paras 28, 32)

For the purposes of interpreting the exception to the right of access to documents laid down by the third indent of Article 4(2) of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, it is necessary to recognise a general presumption that the disclosure of documents from the administrative file would, in principle, undermine the protection of the objectives of OLAF’s investigation activities. Generalised access, on the basis of Regulation No 1049/2001, to documents in OLAF’s file, while OLAF’s investigation procedure is still ongoing, would, in principle, undermine the effective conduct of the investigation. The same is true where the investigation has been recently closed by OLAF. The legislative framework applicable to OLAF, namely Regulation No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF), precludes, in principle, a right to access OLAF’s file on the part of the persons concerned. It is only if the authorities to whom the final report is addressed intend to adopt acts which adversely affect the persons concerned that those authorities must, in accordance with the procedural rules which apply to them, provide access to OLAF’s final report in order to enable those persons to exercise their rights of defence. Consequently, to grant access to OLAF’s files or OLAF’s final reports to the general public would seriously undermine the system established by Regulation No 883/2013. (see paras 33, 36, 37)

Where a general presumption is relied on to refuse access to documents disclosure of which has been requested pursuant to Regulation No 1049/2001, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the institution concerned must examine individually all the documents requested in each individual case. Such a requirement would deprive that general presumption of its proper effect, which is to permit the institution concerned to reply to a global request for access in a manner equally global. (see para. 39)

In accordance with the third indent of Article 4(2) of Regulation No 1049/2001, the application of the exception laid down therein concerning the protection of investigation activities is to be precluded if disclosure of the document in question is justified by an overriding public interest. As regards the need to obtain disclosure of the documents requested by virtue of the overriding interest, in order to be in a position to better defend itself against the claims made following the publication of an article in a newspaper, such an argument does not demonstrate, in itself, that there is a public interest in disclosing documents concerning an OLAF investigation which is capable of prevailing over the protection of confidentiality, within the meaning of Article 4 of Regulation No 1049/2001. Given the general principle of access to documents laid down in Article 15 TFEU and recitals 1 and 2 of Regulation No 1049/2001, that interest must be objective and general in nature and must not be indistinguishable from individual or private interests. Under Article 2(1) of Regulation No 1049/2001, the beneficiaries of the right of access to documents of the institutions comprise any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State. The purpose of the regulation is thus to guarantee access for everyone to public documents and not just access for the requesting party to documents concerning him. Consequently, the individual interest which may be asserted by a requesting party in obtaining access to documents concerning him personally cannot generally be decisive for the purposes both of the assessment of the existence of an overriding public interest and of the weighing up of interests under the third indent of Article 4(2) of Regulation No 1049/2001. (see paras 53-56)