Case T-606/23: Action brought on 27 September 2023 — Soares v Commission
Date: 2023-09-27
Institutions: General Court
Subjects: Madeira, Portugal, State aid, access to EU information, administrative transparency, control of State aid, judicial proceedings, right to information








C_202301169EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/1169


4.12.2023





Action brought on 27 September 2023 — Soares v Commission
(Case T-606/23)
(C/2023/1169)
Language of the case: Portuguese

Parties


Applicant: Sara Soares (Porto, Portugal) (represented by: S. Gemas Donário, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul Commission Decision C(2023) 4938, adopted by the European Commission on 17 July 2023 pursuant to Article 4 of the detailed rules for the application of Regulation (EC) No 1049/2001, (1) relating to the request to re-examine the issue of access to documents submitted on 22 August 2022, and which refused access to those documents;










—


order the Commission to pay all the costs of the proceedings





Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.






1.


First plea in law, alleging that, because the applicant was denied access to the documents, principles relating to access to acts of the institutions of the European Union were infringed. The general interest in public access to the documents of the institutions of the European Union is protected by the second paragraph of Article 1 of the Treaty on European Union, Article 42 of the Charter of Fundamental Rights of the European Union and Articles 1 and 4(2), third indent, of Regulation (EC) No 1049/2001. (2) First of all, the applicant submits that the documents at issue fall within the scope of Regulation (EC) No 1049/2001 because the matter concerns documents held by the Commission, whether drawn up or received by the Commission in the exercise of its powers. Although the Commission contends that the refusal of access is justified in order to protect ongoing court proceedings, the applicant submits that the matter does not concern judicial documents or court documents which, by their nature, are excluded from the right of access to documents conferred by that regulation. Moreover, the applicant submits, and has demonstrated, that there is an overriding public interest in disclosure of those documents, which takes precedence over the exception erroneously relied on by the Commission.










2.


Second plea in law, alleging that the Commission has not demonstrated in the decision refusing access that it conducted any case-by-case assessment to weigh up the allegedly conflicting particular interests, as is required by Regulation (EC) No 1049/2001 and the case-law. Although the Commission is entitled to make use of general presumptions in order to decide to refuse access, if it has been demonstrated that there is an overriding public interest, that has to be examined. The argument that the refusal to allow access to documents at issue here has its basis in Article 4(2), third indent, of Regulation (EC) No 1049/2001 cannot be relied on since the process of auditing the provision of the State aid in question had already been concluded. Furthermore, although it is submitted that the relevant point in time is the end of the judicial phase, that would have the effect of limiting the principle of the widest possible public access to documents originating from the institutions, and makes access to those documents dependent on an uncertain point in the future. Nor can it be argued that the disclosure of the documents requested would undermine the protection of court proceedings or the purpose of inspections, investigations and audits, since it is clear that the inspection/investigation process relating to the State aid at issue has been concluded. Finally, the applicant highlights the existence of serious and important grounds of public interest that override the exceptions erroneously relied on by the Commission. In addition to the fact that the documents are essential for the defence of those individuals who challenged Commission Decision C(2023) 4938, access to those documents relates to: (i) the fact that the decision had an impact on the economy of the region of Madeira which (a) affected 300 undertakings within its business community and (b) will entail the return of nearly EUR 1 billion; (ii) the principle of transparency and freedom of information; and (iii) the right of access to information.










3.


Third plea in law, alleging that, according to the applicant, it is settled case-law that the EU institutions have a general duty to state reasons, which in the present case has not been complied with by the Commission, in that it merely offers generic and formulaic information relating to the reasons for its refusal to disclose the documents requested. As a matter of fact, the contested decision to refuse access does not specify or clarify the grounds on which it relies, in particular the manner in which the various relevant interests had been taken into consideration. The explanations for the refusal to allow access do not enable the applicant to discern whether the exception relied upon is genuine or not and, accordingly, what is the justification for the derogation from her right of access to the documents, guaranteed by the abovementioned regulation and protected by the Treaty on European Union and by the Charter of Fundamental Rights of the European Union.






(1)  
            OJ L 345, 29.12.2001, p. 94.

(2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


ELI: http://data.europa.eu/eli/C/2023/1169/oj
ISSN 1977-091X (electronic edition)